OXIESEC PANEL

Name	Size	Modified	Perms
📁 ..	-	05/19/2025 10:07:13 AM	rwxr-xr-x
📄 00075c93132acf7a6e46e48d2291ce41.spc	5.69 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 0102169e52b6a27a410e7b237202fe84.spc	140.81 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 027d4dde1e82475da3d9afe4844afb1d.spc	2.63 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 03036edfece701eaa1537fea4014dd44.spc	56.35 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 0446f65691fba260d3eabbd1377240f8.spc	5.75 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 04d0c6cc2bf146b1318b78f84416b912.spc	124.45 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 0582678c8cfff117f770f9368b70c2b5.spc	19.33 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 0601d608f5e2ea8e198130b17fe6ef01.spc	157 bytes	05/16/2025 04:32:22 AM	rw-r--r--
📄 061ad7f2b0116c570fdc35c36824c7c6.spc	42.24 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 06e0c598a46c483b6b9d775e1ba1ecd4.spc	124.09 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 0802b12194f292de0e9d9617ac014785.spc	290.02 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 083aed319a0b5c8691e31d9150d8005e.spc	19.84 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 0a3bf48c84477cd58dbc2036a0331134.spc	70.63 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 0b5e5f226006af7e46d02ba8ce216a45.spc	54.71 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 0b73d04c6bba0acaf2f9a569f388313a.spc	33.59 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 0b8a46fca237497cfc90498f9eb909ab.spc	686.66 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 0ce2bdd7061489c6136e7614d421b874.spc	47.7 KB	05/16/2025 04:32:22 AM	rw-r--r--
📄 0de8a2204854bb5dd311607494c671e4.spc	828.58 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 0e15494dca4aeb24ea769582482c5162.spc	150.58 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 0eaec40cfb584fcb55fcdfb5d76684b9.spc	16.95 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 0ed254d4d9db6e3afe193b00bc6471bb.spc	89.85 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 0f079d9bb09fef940c38ee73b52b91d4.spc	34.42 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 0f5e21d9d8354d10ea23d99101259ba2.spc	42.06 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 0ffc1fa29a6bad7fb49e55940c374610.spc	75.61 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 1071b4a15b6c2fe6f7a96f194d0ba524.spc	196 bytes	05/16/2025 04:32:23 AM	rw-r--r--
📄 10ae571a6266a8e21b0fbb15f552a1cb.spc	13.15 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 118c129ff99a905e4e9325e388b841fe.spc	45.34 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 131a4ad07dda46888cbbc1cb4c710a91.spc	59.6 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 132dee0a955be7733cc009e546de18da.spc	100.76 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 142d8795402a4e8a520be8ebea6f54f3.spc	22.7 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 1469d584e9747d132077c9df3cda6c97.spc	121.15 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 1479626ef8ef423638ca62f43b3e0f8d.spc	95.45 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 16e016e3ca27d793aa9172c1913c3f23.spc	26.74 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 19f3a21c36072f501f634db8e658bc9f.spc	16.6 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 1b8954ae7aab6fd9784cbcc827133f80.spc	186 bytes	05/16/2025 04:32:23 AM	rw-r--r--
📄 1c0bbac8beea30e555f26fd02994e7a5.spc	19.96 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 1c1a63fc25720b7c22c9c28fa2aa9379.spc	236.54 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 1f1672e0ecc5e7a6d278c930015520ab.spc	166 bytes	05/16/2025 04:32:23 AM	rw-r--r--
📄 1f4cf3ae9ba91935f556711c1cfc34d4.spc	88.33 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 1f5e96e3f1a01f95ab611ec1458fe470.spc	169.16 KB	05/16/2025 04:32:23 AM	rw-r--r--
📄 20a75b688975a2d5d342eae9f4c33411.spc	1.22 MB	05/16/2025 04:32:24 AM	rw-r--r--
📄 225d97aca36305a8b407ea6d8d5b187e.spc	55.08 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 242d3dabf79d13154fcc384ff8b2d25e.spc	113.19 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 25512b0d18ae6e4d20d027abbc467365.spc	31.2 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 25948504a82cd8da1985fddd4500c1c7.spc	153.7 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 26e0c631724f3653c10c3123546ab5e2.spc	110.09 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 2704664dff0e40e19de087fe00892bc2.spc	24.51 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 274ae07ff50cfde2bda57a71703b62f4.spc	2.54 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 2799184659106c88b5072a3e3f763a4d.spc	2.54 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 2801f3bdd649962fa663f608c2383280.spc	154.53 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 28099e26c5c9a06acb85a41ccd789efc.spc	500.36 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 2aabe0323264e3f60916621039be0e76.spc	42.37 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 2abcd685295b4a261ad2e866188e5e11.spc	125.3 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 2aed529f6407470bef913050a1d118ef.spc	151 bytes	05/16/2025 04:32:24 AM	rw-r--r--
📄 2b2654a64e8b0f5d9cf497e0883b2042.spc	96.1 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 2dae1abba28ecd05f3e1e91f308cf8c4.spc	87.25 KB	05/16/2025 04:32:24 AM	rw-r--r--
📄 2db16a36af8daf383cb739dd57a44d90.spc	147.19 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 2de250597c053bd81359233c14c51db4.spc	286.38 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 2fb670ecdcda7db936aa7d2f018a79e4.spc	23.75 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 30d5af6cd4c10ea02520bcaba31f3d1c.spc	141.02 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 31591159e55bceb27be71ce43cd1517e.spc	443.64 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 31f817c15425941589a9819216265501.spc	68.33 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 34661b0e5b23f423b303c946172b39f8.spc	20.99 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 3567037b5acd1842946ba40397edead4.spc	84.5 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 37cf2adae9335c54f1dbc436922e6cfc.spc	181 bytes	05/16/2025 04:32:25 AM	rw-r--r--
📄 389ae768f4ecb350b56b92da3b04c1ac.spc	180.5 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 3bcfb7838de30c68c7acc437c16935cc.spc	142.35 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 3ca755a78dd04c91695e5fcee845991f.spc	42.02 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 3d135369c757ae57c3c873e6070d5ac6.spc	46.18 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 3e4e8d898fc42bca52bf888c3a33ef23.spc	614.85 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 3e804b49f84699d48348b3bee312090d.spc	25.24 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 3f92b590befbddc6f7237f2ff7a2ca21.spc	407.55 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 3f93802ae5a285cffaf04f22ceb596fb.spc	307.02 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 419e5468f73de12da7ac55b064ff6e04.spc	19.87 KB	05/16/2025 04:32:25 AM	rw-r--r--
📄 43cdef0c688f38c395285fd09bd1d8b6.spc	163 bytes	05/16/2025 04:32:25 AM	rw-r--r--
📄 445a8424173fb9de0f08493a09557c92.spc	39.14 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 447b88825763019604aca4e363415120.spc	3.18 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 44a6e222af7ac1e000190688f3824d27.spc	103.66 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 45ec354e05ea3a553e89c9f9d1ee7a6f.spc	67.86 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 48926180fcc9ab4ab897cfbc5279409e.spc	170 bytes	05/16/2025 04:32:26 AM	rw-r--r--
📄 4904c558085c30a9ca52969c7f875cf8.spc	155 bytes	05/16/2025 04:32:26 AM	rw-r--r--
📄 490fd4abfc32189cff5d5f38ddaaff5b.spc	22.31 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 491e4a0adc576f7c32fdb7ee38bb0997.spc	88.77 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 492e918dde587df3095914b1f67cd6ee.spc	31.56 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 4b6d0ec22ab2dc33cffefef17cf9a288.spc	87.42 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 4b6fa8105439c52ea4f2c1f18e0957e2.spc	181 bytes	05/16/2025 04:32:26 AM	rw-r--r--
📄 4c3facd12e8f40cab8114677f681ebaf.spc	134 bytes	05/16/2025 04:32:26 AM	rw-r--r--
📄 4ca537d8aa4727a23841361c475118e1.spc	42.22 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 4d1bb795413f82f68c666caa0c0c27bb.spc	148.14 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 4e8baeaef3679f9460ffdecddbb1f6a7.spc	35.08 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 5064bfc366d30fb3250bafeacadc83db.spc	22.11 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 50ba71d2f35fb5e96b224d907d33d263.spc	720.35 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 51447ae67b6d856982df0ea0496cf24b.spc	18.89 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 522fe4b133aa24cb42c79b24ecb5c838.spc	134.37 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 5432740bf8126b80fd18515165c5cf20.spc	22.07 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 55fad6ae8bfedfb81fafc8bd5112a79f.spc	31.16 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 577d0589862161e3aaa25ed8758b2765.spc	29.23 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 57e4b3f5cadf2d33fa630cb96499349a.spc	154 bytes	05/16/2025 04:32:26 AM	rw-r--r--
📄 588359e68ff59d4ef53aaf3edb6a44cf.spc	6.77 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 5a06bba505584742f9e590f2f81e0ff3.spc	128 bytes	05/16/2025 04:32:26 AM	rw-r--r--
📄 5c6d487a1fbb288f7f0f73b55f6b2df1.spc	41.86 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 5c744a4198beb7326dcf101f961486b4.spc	56.94 KB	05/16/2025 04:32:26 AM	rw-r--r--
📄 5ef8b2cef4776b3e3f9f79092ce932ca.spc	124.66 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 5fc9bcdda34ec7e72510b177a0164b7b.spc	602.71 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 60bc545cda9dafe75484b88be1dd4ae9.spc	67.49 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 60fe2edd86b212feb0f71552066ef55d.spc	186.19 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 6270f865db79068a5dedb78ba877e7a0.spc	100.02 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 6370a4a7eb9be29e32a96811bc0dd7b6.spc	19.59 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 63f55618eba7b0585577fb08ea8818dc.spc	41.42 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 651d4f6bf953adef7c5b8f05f01e1151.spc	32.47 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 66267a4d6dba7887fc7d4a1aa2da9b75.spc	123.73 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 663e01e065755a523f15f61782ef2fd0.spc	28.3 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 66506bf5272cefcb56085b4b77463bd8.spc	280.88 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 669fa07a0da20a5d0da35d972d5fcac5.spc	99.77 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 679d4423c6016aeb24557d767a509bbb.spc	46.29 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 69185497e5f13fd4744a2c39d76fb812.spc	32.55 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 69b3abe3aa88d144d3591d56873de72b.spc	150 bytes	05/16/2025 04:32:27 AM	rw-r--r--
📄 6a0ab3ec7216c8caa50e266f3ff16993.spc	22.35 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 6c7544e2246a222bbde6ad7d0406c8db.spc	200.49 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 6c7c31384f1626a700bc8fbd2f584add.spc	57.94 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 6cf9d92f08956fa74016014a99dc793e.spc	28.51 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 6ee565104f90a8212dd7e14133d6e4ae.spc	193 bytes	05/16/2025 04:32:27 AM	rw-r--r--
📄 6eede30400457c4277e91f133b7a27a6.spc	60.73 KB	05/16/2025 04:32:27 AM	rw-r--r--
📄 71f0008f42879a3e550851568b3494d0.spc	1.8 MB	05/16/2025 04:32:28 AM	rw-r--r--
📄 72ff111641b87f5d234c3ded91959234.spc	136.69 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 7400954e05f62bf45dcf5c1087223df4.spc	2.63 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 7463e454c4ab831179d37c4e86643dc2.spc	266.75 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 74a014a9f44690e4a045b1753c1ef5c9.spc	159 bytes	05/16/2025 04:32:28 AM	rw-r--r--
📄 76c5af11f8b8bd34c58097da8689d2a2.spc	185.34 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 76e6555adc909bfac627ceaba91df128.spc	167.17 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 7ab2d04babf16e9d06f787e38f186748.spc	89.36 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 7b9723cc6339397505e29dbe8497b10a.spc	150 bytes	05/16/2025 04:32:28 AM	rw-r--r--
📄 7beeb799568e0584e407e788f7ec973d.spc	56.61 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 7c6fcaa553a1353d8fcc5535064f4008.spc	50.63 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 7d1ab5c52f2c3ab33c409e73bedecc5e.spc	3.92 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 7dc75885832733a5ea185d98887b82df.spc	33.47 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 7e7185a8ee7828937f2a05f0aa956f10.spc	162 bytes	05/16/2025 04:32:28 AM	rw-r--r--
📄 80d5eace46cca553f0c7e7a631ed6703.spc	123.39 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 828f89042b67ae6fca8657110997c302.spc	3.94 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 8341235cab83dcb126f0ad2b5812b63d.spc	88.67 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 8353d08af859970965abdbc71f5bf9a3.spc	37.15 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 83efe9d0463ea50fa82517c4a92ed589.spc	158 bytes	05/16/2025 04:32:28 AM	rw-r--r--
📄 8409cc881139fa5d466af5d757f19609.spc	48.09 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 84ed1e5a5cc7fb7930a3132f1dd7ae0a.spc	112.98 KB	05/16/2025 04:32:28 AM	rw-r--r--
📄 850a6a7f962502618892db457e231fe7.spc	131.61 KB	05/16/2025 04:32:29 AM	rw-r--r--
📄 852c8f9b4effcea04904f4e1e55da3f4.spc	459.08 KB	05/16/2025 04:32:29 AM	rw-r--r--
📄 874091b93fb13db66a5fdbe72fbb8d6b.spc	1.59 KB	05/16/2025 04:32:29 AM	rw-r--r--
📄 8b768f4e406ced9a4cba62897a7bc651.spc	97.91 KB	05/16/2025 04:32:29 AM	rw-r--r--
📄 8bbfe139e67e5f738b9ffcb18a7c5b86.spc	47.7 KB	05/16/2025 04:32:29 AM	rw-r--r--
📄 8d0823d0a4bd13241dc275b14e801667.spc	183.86 KB	05/16/2025 04:32:29 AM	rw-r--r--
📄 8d3db038a087fbdc54054a9282afa2c6.spc	164 bytes	05/16/2025 04:32:29 AM	rw-r--r--
📄 8d64115de2ca5294e771c8614663c953.spc	162 bytes	05/16/2025 04:32:29 AM	rw-r--r--
📄 8e24588eb23460ceefe5195686c2a6db.spc	101.38 KB	05/16/2025 04:32:29 AM	rw-r--r--
📄 906b5d59de170e528244744b925a8af5.spc	97.16 KB	05/16/2025 04:32:29 AM	rw-r--r--
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Abstract:

This paper examines the complex relationship between intellectual property (IP) trademarks and economic recessions. Trademarks, a critical component of IP, serve as valuable business assets by protecting brand identity and consumer trust. However, during economic downturns, businesses face unique challenges and opportunities regarding their trademark portfolios. This paper explores how recessions impact trademark registration and maintenance, strategies businesses employ to leverage trademarks during economic downturns, and the role of government policies in supporting trademark holders. Through a review of existing literature, case studies, and statistical analysis, this paper aims to provide a comprehensive understanding of how trademarks function as both vulnerable assets and strategic tools in times of economic distress. This paper explores the intricate relationship between economic recessions and the management and value of intellectual property (IP) trademarks. Trademarks, as a critical component of IP, serve as significant assets for businesses, embodying brand identity and market differentiation. During periods of economic downturn, companies face substantial financial pressures that can influence their strategic decisions regarding trademark maintenance, registration, and enforcement.

Case studies of prominent companies are presented to illustrate varied responses to recessionary pressures, from aggressive brand protection to cost-cutting measures that result in reduced IP investments.

&nbsp;Additionally, the research highlights the long-term implications of recession-induced trademark abandonment, including increased vulnerability to brand dilution and loss of competitive edge.

This paper concludes by discussing policy implications and recommending strategies for businesses to effectively manage their trademarks through economic cycles. It emphasizes the necessity for proactive IP management and advocates for supportive measures from IP offices and governments to assist businesses in maintaining their trademark portfolios during financial downturns.

By shedding light on the nuanced effects of recessions on trademark activity, this research contributes to a deeper understanding of IP dynamics in fluctuating economic environments and offers practical guidance for stakeholders aiming to safeguard their intangible assets amidst economic challenges.

Introduction:

In times of economic downturn, businesses face numerous challenges, from shrinking markets to tighter budgets. However, one aspect that remains critically important, yet often overlooked during a recession, is the management and protection of intellectual property (IP), particularly trademarks. Trademarks, which encompass logos, names, slogans, and other identifiers of a brand, serve as vital assets that can significantly influence a company&#8217;s resilience and ability to recover in tough economic climates. This article explores the intricate relationship between intellectual property trademarks and recessions, examining how strategic trademark management can not only safeguard a company&#8217;s brand identity but also potentially turn economic adversity into opportunity. By understanding the role of trademarks in maintaining brand loyalty, differentiating products, and sustaining market presence, businesses can better navigate the economic uncertainties of a recession and emerge stronger. The interplay between intellectual property (IP) rights, specifically trademarks, and economic recessions is a complex and multifaceted issue. In times of economic downturn, businesses and individuals face significant challenges, but these periods also offer unique opportunities for strategic IP management. This article explores the relationship between trademarks and recessions, highlighting the impacts, strategies for protection, and potential benefits that can arise during such turbulent times.

Interconnectedness between Trademarks and Recession:

Trademarks and recessions are interconnected in several ways, affecting businesses&#8217; strategies and the broader economic landscape. Here are key points illustrating this relationship:

<ol start="1">
<li>Brand Protection and Value:
<ul>
<li>During recessions, businesses may focus more on protecting their established trademarks. A strong brand can be a significant asset, helping companies maintain market share and customer loyalty even when consumer spending declines.</li>

<li>Trademarks become crucial in distinguishing products and services from those of competitors, which is essential in a more competitive, recession-stricken market.</li>
</ul>
</li>

<li>Cost Considerations:
<ul>
<li>Registering and enforcing trademarks involves costs. In a recession, businesses might be more cautious with their expenditures, potentially delaying trademark registrations or enforcement actions to conserve resources.</li>

<li>Some companies may prioritize essential expenses over trademark activities, risking potential infringement issues or loss of trademark rights due to non-use.</li>
</ul>
</li>

<li>Innovation and Diversification:
<ul>
<li>Recessions can drive businesses to innovate or diversify their product lines to adapt to changing market conditions. This can lead to the creation of new trademarks for new products or services, as companies seek to capture new revenue streams.</li>

<li>Conversely, some businesses might cut back on research and development, leading to fewer new trademarks being filed.</li>
</ul>
</li>

<li>Trademark Infringement:
<ul>
<li>Economic downturns can see an increase in trademark infringement as struggling companies or counterfeiters attempt to capitalize on the reputation of established brands to drive sales.</li>

<li>Established businesses might need to be more vigilant and proactive in monitoring and addressing such infringements to protect their brand equity.</li>
</ul>
</li>

<li>Consumer Behaviour:
<ul>
<li>Recessions often lead to shifts in consumer behaviour, with more emphasis on value and cost savings. This can affect how consumers perceive and engage with brands, influencing the strength and relevance of certain trademarks.</li>

<li>Companies may need to adjust their branding strategies, potentially rebranding or repositioning themselves to better align with changing consumer priorities.</li>
</ul>
</li>
</ol>

6. Legal and Market Landscape:

<ol start="5">
<li>Legal environments might change in response to economic pressures, with potential adjustments in trademark law enforcement or policy to support businesses.</li>

<li>Market dynamics, such as mergers, acquisitions, and bankruptcies, can impact trademark portfolios, with companies acquiring or shedding trademarks as part of broader strategic moves.</li>
</ol>

Thus it is evident that, while trademarks are vital for brand identity and protection, economic recessions influence how businesses manage, register, and enforce these trademarks. Companies must navigate these challenges strategically to maintain their brand strength and market position during tough economic times.

Objectives:

<ol start="1">
<li>To analyse the impact of economic recessions on trademark registration and maintenance.</li>

<li>To examine strategies businesses employ to leverage trademarks during recessions.</li>

<li>To investigate the role of government policies in supporting trademark holders during economic downturns.</li>

<li>To provide insights into the future outlook for trademarks in the context of global economic volatility.</li>
</ol>

<h3 class="wp-block-heading">Literature Review:</h3>

<h3 class="wp-block-heading">Trademarks: Definition and Importance</h3>

Trademarks are a subset of intellectual property that primarily serve to identify and distinguish goods and services in the marketplace. According to the World Intellectual Property Organization (WIPO), a trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks provide legal protection to the owner by granting the exclusive right to use the mark, thus preventing others from using similar signs that could confuse consumers.

The importance of Trademark are as follows:

·&nbsp; Exclusive Rights: Trademark registration grants exclusive rights to the owner, allowing them to prevent unauthorized use by others within the registered classes. This exclusivity ensures that the trademark holder can use the mark across all relevant products or services.

·&nbsp; Building Customer Loyalty and Goodwill: A registered trademark enhances the perceived value of a product or service, fostering customer trust and loyalty. It effectively communicates the unique characteristics and vision of the brand, thereby building goodwill.

·&nbsp; Protection Against Infringement: Registered trademarks provide legal protection against unauthorized use by others. Infringement can lead to legal action, safeguarding the trademark owner&#8217;s rights and reputation.

·&nbsp; Creation of a Valuable Asset: Trademark registration creates a valuable intangible asset for the owner. This asset can be leveraged for various commercial purposes such as selling, franchising, assigning, or licensing, contributing to the brand&#8217;s overall value and business strategy.

The importance of trademarks extends beyond mere identification. They serve as a guarantee of quality, fostering consumer trust and loyalty. Trademarks can also be valuable business assets, often representing a significant portion of a company&#8217;s value. For instance, renowned brands like Coca-Cola, Apple, and Google derive substantial value from their trademarks.

<h3 class="wp-block-heading">Economic Recessions: Definition and Characteristics:</h3>

An economic recession is typically defined as a significant decline in economic activity spread across the economy, lasting more than a few months. It is visible in indicators such as gross domestic product (GDP), real income, employment, industrial production, and wholesale-retail sales. Recessions are part of the broader business cycle and are often triggered by various factors, including financial crises, changes in consumer behaviour, or external shocks.

The Reserve Bank of India (RBI) determines the beginning and end dates of recessions in India. According to the RBI&#8217;s definition, a recession is characterized by a sustained decline in economic output across various sectors. Specifically, a recession is identified when the real gross domestic product (GDP) of the country has decreased for at least two consecutive quarters. This definition is widely accepted among commentators and economists to assess the onset and duration of economic downturns in India.

The National Bureau of Economic Research (NBER) defines a recession as a significant downturn in economic activity affecting multiple sectors of the economy. This decline typically lasts for more than a few months and is observable in indicators such as real GDP, real income, employment levels, industrial production, and wholesale-retail sales.

During recessions, businesses experience reduced consumer demand, tightening credit conditions, and increased uncertainty. These conditions can lead to cost-cutting measures, including layoffs, reduced marketing budgets, and scaling back of operations. Despite these challenges, recessions also present opportunities for businesses to innovate, restructure, and strengthen their competitive position.

<h3 class="wp-block-heading">The Impact of Recessions on Trademark Registration and Maintenance:</h3>

Economic downturns influence businesses&#8217; decisions regarding trademark registration and maintenance. Financial constraints during recessions may lead to reduced spending on non-essential activities, including the registration of new trademarks. Existing trademarks may also be abandoned or not renewed as companies prioritize immediate survival over long-term brand protection.

However, some businesses may view recessions as an opportunity to reinforce their brand identity. By maintaining or even increasing their trademark activities, these companies can signal stability and reliability to consumers. This strategy can help them gain a competitive edge when the economy recovers.

<h3 class="wp-block-heading">Strategies for Leveraging Trademarks During Recessions:</h3>

During recessions, businesses employ various strategies to leverage their trademarks effectively. Some of these strategies include:

<ol start="1">
<li>Reinforcing Brand Identity: Maintaining consistent and strong branding efforts can help sustain consumer trust and loyalty during uncertain times.</li>

<li>Innovation and Adaptation: Introducing new products or services that cater to changing consumer needs can differentiate a brand in a competitive market.</li>

<li>Cost-Effective Marketing: Utilizing digital marketing and social media platforms can provide cost-effective ways to engage with consumers and promote trademarks.</li>

<li>Collaborations and Partnerships: Partnering with other brands or influencers can expand reach and enhance brand visibility without significant financial investment.</li>
</ol>

<h3 class="wp-block-heading">Government Policies and Support Mechanisms:</h3>

Governments play a crucial role in supporting businesses and trademark holders during economic recessions. Policies such as tax incentives, financial assistance programs, and streamlined trademark registration processes can alleviate some of the burdens faced by businesses. Intellectual property offices may also offer fee reductions or extensions to help businesses maintain their trademarks during challenging economic periods.

<h3 class="wp-block-heading">Methodology :</h3>

<h3 class="wp-block-heading">Research Design</h3>

This research adopts a mixed-methods approach, combining qualitative and quantitative analysis to explore the relationship between trademarks and economic recessions. The study involves a comprehensive review of existing literature, case studies of businesses that navigated recessions effectively, and statistical analysis of trademark registration data during past economic downturns.

<h3 class="wp-block-heading">Data Collection</h3>

<ol start="1">
<li>Literature Review: Scholarly articles, industry reports, and government publications related to trademarks and economic recessions.</li>

<li>Case Studies: In-depth analysis of businesses that successfully leveraged trademarks during recessions.</li>

<li>Statistical Data: Trademark registration and renewal data from intellectual property offices during previous recessions.</li>
</ol>

<h3 class="wp-block-heading">Data Analysis</h3>

The data analysis involves identifying patterns and trends in trademark registration and maintenance during recessions, examining the effectiveness of various business strategies, and assessing the impact of government policies on trademark holders. Statistical tools and qualitative analysis techniques are employed to interpret the data and derive meaningful insights.

<h3 class="wp-block-heading">Findings and Discussion:</h3>

<h3 class="wp-block-heading">Impact of Recessions on Trademark Registration and Maintenance</h3>

<h3 class="wp-block-heading">Trends in Trademark Activity:</h3>

The analysis of trademark registration data during past recessions reveals a noticeable decline in new trademark applications. For instance, during the 2008-2009 financial crisis, there was a significant drop in trademark filings in many countries. Businesses, facing financial constraints, were more likely to prioritize core operations over the registration of new trademarks. However, sectors that remained resilient or adapted quickly, such as technology and healthcare, showed relatively stable trademark activity.

<h3 class="wp-block-heading">Abandonment and Non-Renewal of Trademarks:</h3>

Financial pressures during recessions also lead to an increase in the abandonment and non-renewal of existing trademarks. Businesses may decide to let go of trademarks that are no longer aligned with their strategic priorities or those associated with underperforming products and services. This trend was particularly evident during the early 2000s recession and the more recent COVID-19 pandemic-induced economic downturn.

<h3 class="wp-block-heading">Business Strategies for Leveraging Trademarks During Recessions</h3>

<h3 class="wp-block-heading">Reinforcing Brand Identity:</h3>

During recessions, maintaining a strong brand identity becomes crucial. Companies that continue to invest in their brand presence can sustain consumer trust and emerge stronger post-recession. For example, during the 2008 financial crisis, luxury brands like Louis Vuitton and Hermès continued to invest in marketing and brand visibility, reinforcing their premium status and consumer loyalty.

<h3 class="wp-block-heading">Innovation and Adaptation:</h3>

Economic downturns can drive innovation as businesses seek new ways to attract consumers. For example, during the COVID-19 pandemic, many companies shifted to e-commerce and introduced new product lines tailored to changing consumer needs. This adaptability not only helped businesses survive but also strengthened their trademark portfolios by associating them with innovation and resilience.

<h3 class="wp-block-heading">Cost-Effective Marketing:</h3>

With reduced marketing budgets, businesses often turn to cost-effective marketing strategies during recessions. Digital marketing, social media, and influencer collaborations provide affordable ways to maintain brand visibility. These platforms allow for targeted marketing, ensuring that promotional efforts reach the most relevant audiences without significant financial investment.

<h3 class="wp-block-heading">Collaborations and Partnerships:</h3>

Forming strategic partnerships can enhance brand visibility and credibility. Collaborations between complementary brands or with influential figures can create new opportunities for brand promotion. For example, fashion brands partnering with popular influencers during the 2020 recession managed to reach wider audiences and reinforce their market presence.

<h3 class="wp-block-heading">Role of Government Policies</h3>

<h3 class="wp-block-heading">Financial Assistance and Incentives:</h3>

Government initiatives play a crucial role in supporting businesses during recessions. Financial assistance programs, such as grants and low-interest loans, can help businesses manage their trademark portfolios. For instance, during the COVID-19 pandemic, several governments introduced financial support packages to help businesses cope with the economic impact, including measures to assist with trademark registration and maintenance costs.

<h3 class="wp-block-heading">Streamlined Trademark Processes:</h3>

Intellectual property offices can support businesses by streamlining trademark registration and renewal processes. During recessions, reducing administrative burdens and providing fee waivers or extensions can help businesses maintain their trademarks. For example, the United States Patent and Trademark Office (USPTO) implemented temporary measures during the COVID-19 pandemic to extend deadlines and reduce fees for trademark applicants.

Understanding Trademarks and Their Importance:

Recessions significantly affect all economic sectors, including the legal sector. While the impact on the legal industry is well-documented, there is a lack of focused studies on the intellectual property (IP) industry. This leaves IP practitioners without adequate resources to navigate the effects of recessions on trademarks and related IP areas.

Trademarks are a subset of intellectual property rights that protect symbols, names, and slogans used to identify goods or services. They play a critical role in branding, helping businesses to establish and maintain their identity in the marketplace. A strong trademark distinguishes a company&#8217;s products from those of competitors, fosters consumer loyalty, and can become a valuable asset over time.

The Impact of Recession on Trademarks:

During a recession, businesses often face reduced consumer spending, tighter budgets, and increased competition. These pressures can influence how companies manage their trademarks and overall IP portfolios.

<ol start="1">
<li>Budget Constraints: Economic downturns typically lead to budget cuts across various departments, including marketing and legal. For some businesses, this might mean delaying or reducing spending on trademark registrations, renewals, and enforcement. This can expose companies to risks such as loss of trademark rights or increased vulnerability to infringement.</li>

<li>Increased Infringement Risks: Recessions can lead to a rise in counterfeit products and trademark infringements as struggling businesses and individuals seek to capitalize on the reputations of established brands. Companies may find themselves fighting more infringement battles with fewer resources, complicating the protection of their brand integrity.</li>

<li>Brand Value and Consumer Loyalty: In tough economic times, consumers may become more price-sensitive, but they also tend to rely on trusted brands. A well-protected trademark can thus become a critical factor in maintaining customer loyalty. Businesses that have invested in strong brand identities can leverage this to retain and attract customers even when discretionary spending is limited.</li>
</ol>

Strategies for Trademark Management During a Recession:

Effective trademark management during a recession involves balancing cost considerations with the need to protect and leverage brand value. Here are some strategies businesses can adopt:

<ol>
<li>Prioritize Core Trademarks: Companies should focus on protecting and maintaining their most valuable trademarks. This might mean prioritizing renewals and enforcement actions for trademarks that are central to the brand’s identity and revenue generation.</li>
</ol>

<ul>
<li>Streamline Portfolios: Businesses can conduct audits of their trademark portfolios to identify and eliminate redundant or less critical marks. Streamlining the portfolio can reduce maintenance costs and allow for more focused and effective protection of key trademarks.</li>
</ul>

<ul>
<li>Enhance Monitoring and Enforcement: Increased vigilance in monitoring the market for potential infringements is crucial. Investing in trademark watch services and leveraging technology for automated monitoring can help detect unauthorized use more efficiently. Quick and decisive enforcement actions can prevent long-term damage to brand reputation.</li>
</ul>

<ul>
<li>Collaborate and Negotiate: In some cases, collaboration or negotiation with infringers may be more cost-effective than litigation. Settling disputes amicably can save resources and time while still protecting the brand’s integrity.</li>
</ul>

<ul>
<li>Leverage Government and International Support: Many governments offer support programs for businesses during recessions, including assistance with IP management. Companies should explore these resources to mitigate costs and enhance their trademark strategies.</li>
</ul>

Opportunities for Strategic Growth:

While recessions present challenges, they also create opportunities for strategic growth and innovation in trademark management.

<ol start="1">
<li>Acquiring Distressed Assets: Economic downturns often lead to business closures and asset sales. This can be an opportune time for companies to acquire valuable trademarks and other IP assets at reduced prices. Such acquisitions can strengthen a company’s brand portfolio and market position.</li>

<li>Innovative Branding: Recessions can spur innovation as companies seek to differentiate themselves in a competitive market. Developing new products, services, or rebranding efforts can refresh a company’s image and attract new customer segments. Investing in trademark protection for these innovations is essential to safeguard new brand equity.</li>

<li>Expanding Markets: Businesses might explore entering new geographic or demographic markets during a recession. Protecting trademarks in these new markets is critical to prevent future conflicts and establish a strong brand presence from the outset.</li>

<li>Digital Transformation: The shift to online business models, accelerated by economic pressures, opens new avenues for trademark use and protection. Companies should ensure that their digital trademarks are well-protected and consider registering domain names and social media handles to prevent cybersquatting and misuse.</li>
</ol>

The Role of Legal and IP Professionals:

Legal and IP professionals play a vital role in helping businesses navigate the complexities of trademark management during recessions. Their expertise can guide strategic decision-making and ensure that businesses maintain robust protection for their trademarks while optimizing costs.

<ol start="1">
<li>Proactive Planning: Legal advisors can assist in developing proactive IP strategies tailored to the economic climate. This includes identifying potential risks, prioritizing key trademarks, and implementing cost-effective enforcement measures.</li>

<li>Education and Training: Educating business leaders and employees about the importance of trademarks and the potential risks during a recession can foster a culture of vigilance and proactive protection.</li>

<li>Alternative Dispute Resolution: Legal professionals can explore alternative dispute resolution mechanisms, such as mediation or arbitration, to handle trademark disputes more efficiently and cost-effectively.</li>
</ol>

<h3 class="wp-block-heading">Case Studies:</h3>

<h4 class="wp-block-heading">Case Study 1: Apple Inc. During the 2008 Financial Crisis</h4>

Apple Inc. is an exemplary case of leveraging trademarks during a recession. Despite the economic downturn, Apple continued to innovate and invest in its brand. The launch of the iPhone 3G in 2008 and subsequent models during the recession period reinforced Apple&#8217;s position as a market leader. Apple&#8217;s trademark strategy focused on innovation, quality, and consumer engagement, helping the company emerge stronger post-recession.

<h4 class="wp-block-heading">Case Study 2: Nike Inc. During the COVID-19 Pandemic</h4>

Nike Inc. adapted quickly to the challenges posed by the COVID-19 pandemic. By enhancing its digital presence and focusing on direct-to-consumer sales, Nike maintained strong brand engagement. The company also introduced new products, such as face masks and home workout equipment, catering to changing consumer needs. Nike&#8217;s proactive trademark management and adaptive strategies allowed it to sustain growth and brand loyalty during the economic downturn.

<h3 class="wp-block-heading">Opportunities to Defend and Capitalize on Marks During Recessions:</h3>

Recessions provide a strategic time to monitor and search for potential infringers of the &nbsp;registered and unregistered marks. Historical data shows that while litigation remained steady during the Great Recession, trademark office actions decreased. This suggests a need for vigilant in-house monitoring to detect infringement, reducing the reliance on outside counsel until necessary for sending cease and desist letters. Proactively, businesses can have outside counsel prepare template cease and desist letters for core marks, allowing for quicker response times with prior approval.

Additionally, dead marks present potential opportunities. Marks that are no longer live on the registry and not in commercial use can be claimed, though caution is advised. Former owners may seek compensation if the mark becomes successful again. The possibility of costly litigation to resolve these claims should be considered before pursuing a dead mark.

Conclusion:

<h3 class="wp-block-heading">Summary of Findings</h3>

The relationship between intellectual property trademarks and economic recessions is multifaceted. While recessions pose significant challenges for businesses, they also present opportunities to reinforce brand identity and adapt to changing market conditions. Key findings include:

<ol>
<li>Reduced Trademark Activity: Economic downturns typically lead to a decline in new trademark applications and an increase in trademark abandonment.</li>

<li>Strategic Brand Management: Businesses that continue to invest in their trademarks and innovate during recessions can sustain consumer trust and emerge stronger.</li>

<li>Government Support: Effective government policies and support mechanisms can alleviate some of the burdens on businesses and help maintain trademark portfolios during recessions.</li>
</ol>

<h3 class="wp-block-heading">Implications for Businesses</h3>

Businesses should recognize the strategic value of trademarks, especially during economic downturns. By maintaining brand visibility, investing in innovation, and leveraging cost-effective marketing strategies, companies can navigate recessions more effectively. Additionally, staying informed about government support programs and taking advantage of streamlined trademark processes can provide financial relief and operational flexibility.

The relationship between trademarks and economic recessions is characterized by both challenges and opportunities. While recessions can strain resources and increase infringement risks, they also offer unique chances for strategic growth and innovation. By prioritizing core trademarks, streamlining portfolios, enhancing monitoring and enforcement, and leveraging opportunities for acquisition and market expansion, businesses can navigate economic downturns effectively. Legal and IP professionals play a crucial role in guiding these efforts, ensuring that businesses emerge from recessions with their brand integrity intact and well-positioned for future success.

<h3 class="wp-block-heading">Future Research Directions</h3>

Further research is needed to explore the long-term impacts of economic recessions on trademark portfolios and business performance. Comparative studies across different industries and regions can provide deeper insights into how various factors influence trademark management during recessions. Additionally, examining the role of digital transformation and emerging technologies in shaping trademark strategies during economic downturns can offer valuable perspectives for future business practices.

_______________________________________________________________________________________

Author Details:

Name of the Author : DEBARGHA KUNDU.

Name of the Institution : University of Engineering and Management (UEM), Kolkata.

Contact Number : 9330583546.

Email Id : <a href="mailto:debargha.kundu2003@gmail.com">debargha.kundu2003@gmail.com</a>

BBA – LLB (H), 2022-2027 Batch.

__________________________________________________________________________

References:

1) <a href="https://www.inta.org/perspectives/inta-research/ip-in-times-of-recession-a-comprehensive-guide-for-ip-professionals/">https://www.inta.org/perspectives/inta-research/ip-in-times-of-recession-a-comprehensive-guide-for-ip-professionals/</a>

2) <a href="https://eriseip.com/insights/trademarks/what-would-a-recession-mean-for-trademarks-a-drop-in-applications-yes-but-also-opportunities/">https://eriseip.com/insights/trademarks/what-would-a-recession-mean-for-trademarks-a-drop-in-applications-yes-but-also-opportunities/</a>

3) &nbsp;<a href="https://www.wipo.int/trademarks/en/">https://www.wipo.int/trademarks/en/</a>

4)&nbsp; <a href="https://www.forbes.com/advisor/in/investing/what-is-a-recession/">https://www.forbes.com/advisor/in/investing/what-is-a-recession/</a>

5) <a href="https://www.ezylegal.in/blogs/understanding-trademark-importance-and-its-advantages">https://www.ezylegal.in/blogs/understanding-trademark-importance-and-its-advantages</a>
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COURT: Supreme Court of India

DATE OF JUDGEMENT: 11 March 2024<a href="#_ftn1" id="_ftnref1">[1]</a>

BENCH: B R Gavai, Dhananjaya Y Chandrachud

PETITIONER: Association For Democratic Reforms And Ors.

RESPONDENT: State Bank Of India

APPLICANT: Association For Democratic Reforms And Ors.

TAGS:&nbsp; banking, privacy, transparency, and election financing

FACTS

In this case, the &nbsp;Association for Democratic Reforms And Others is the petitioner and is challenging the Electoral Bond Scheme and certain provisions of the Finance Act 2017 before the Supreme Court of India. The respondents in the case include the State Bank Of India (SBI). With reference to abuses of citizens&#8217; rights to information under Article 19(1)(a) of the Constitution and arbitrariness in violation of Article 14, the Court found the Electoral Bond Scheme and related provisions of the Finance Act 2017 illegal.

The Court ordered SBI, the bank authorized to handle electoral bonds, to provide information by March 6, 2024, regarding bonds that political parties bought and redeemed between April 12, 2019, and February 15, 2024. Additionally, SBI was directed to reveal donor details and political party beneficiaries. By March 13, 2024, the Election Commission of India (ECI) is required to gather and post these data on its website.

SBI requested an extension, citing the difficulty in decoding and matching donation details with political parties because of disparate data storage systems, until June 30, 2024. The Court denied this request, citing SBI&#8217;s own processes and FAQs as proof that the necessary information was easily accessible.

The Court stated that SBI was required by the Electoral Bond Scheme to provide information upon request from a court of competent jurisdiction, citing the availability of relevant data. It further emphasized that certain SBI branches keep political parties&#8217; redemption details, facilitating accessibility. <a href="#_ftn2" id="_ftnref2">[2]</a>

Alleging intentional non-compliance, the Association for Democratic Reforms filed a contempt petition against SBI. Nevertheless, in light of SBI&#8217;s request for an extension, the Court declined to pursue contempt charges. However, it issued a warning to SBI, emphasizing that failure to comply would result in contempt action.

In the end, the Court rejected SBI&#8217;s request for an extension and ordered that the disclosure obligations be complied with by March 12, 2024. It cautioned SBI of possible contempt if orders weren&#8217;t followed and ordered ECI to disseminate the collated data by March 15, 2024. <a href="#_ftn3" id="_ftnref3">[3]</a>

ISSUES RAISED

1.Whether the State Bank of India (SBI) should be given more time to follow the court&#8217;s orders about disclosing information about the purchase and redemption of electoral bonds. The SBI requested an extension, citing the intricacy of the procedure, after the Court had set a deadline for them to deliver this information.

2.Another issue is striking a balance between the public&#8217;s right to information and the Electoral Bond Scheme&#8217;s requirement that purchasers of the bonds remain anonymous. The petitioner&nbsp; maintain that the information should be released to guarantee transparency in political funding, while the SBI maintains that revealing the requested information would violate the confidentiality clause unless ordered by the court.

3.Whether SBI has easy access to the information required by the Court is one of the main concerns brought up by the petitioner. They contend that because each Electoral Bond has a distinct identification number, information like the bond&#8217;s denomination and buyer&#8217;s name can be easily revealed. This also calls into question SBI&#8217;s claim about the process&#8217;s complexity.<a href="#_ftn4" id="_ftnref4">[4]</a>

4.The public&#8217;s interest in accountability and transparency in political funding is a fundamental concern. Upholding citizens&#8217; constitutionally guaranteed rights to information served as the foundation for the Court&#8217;s decision to declare certain provisions unconstitutional. For the purpose of maintaining accountability and preventing the misappropriation of political funding, information about Electoral Bonds must be disclosed on time.

CONTENTION

From the petitioner’s perspective:

The Association for Democratic Reforms (ADR) argued vehemently against the Electoral Bond Scheme and corresponding amendments to the Finance Act of 2017. They contended that these legislative changes posed a severe threat to the foundational principles of democracy enshrined in the Indian Constitution. ADR emphasized that the allowance of anonymous and unlimited corporate donations to political parties directly undermined the fundamental rights of citizens, particularly their right to information and equal representation. They asserted that such provisions eroded the electorate’s capacity to make well-informed decisions, thereby perpetuating a system of opacity and potential corruption within the realm of political financing. ADR underscored the critical necessity of upholding transparency and accountability in the electoral process, stressing that without these principles, the democratic fabric of the nation would be severely compromised.

From the respondent’s perspective, represented by the State Bank of India (SBI):

While acknowledging the importance of transparency in political financing, the State Bank of India (SBI) presented arguments defending the Electoral Bond Scheme and the corresponding amendments to the Finance Act of 2017. SBI contended that the practical challenges posed by the scheme warranted careful consideration. They emphasized that the confidentiality provisions within the scheme were specifically designed to safeguard the privacy of donors and prevent potential reprisals or intimidation. SBI highlighted the logistical complexities involved in reconciling donor information with political party recipients, particularly due to the existence of disparate data storage systems and the imperative to maintain confidentiality. Their arguments centered on the need to strike a balance between transparency and donor privacy, while also addressing the operational hurdles faced in implementing the directives of the court effectively.<a href="#_ftn5" id="_ftnref5">[5]</a>

RATIONALE

The following important factors are part of the reasoning behind this condensation:

The text summarizes the main constitutional and legal points raised during the case, focusing on how the Court interpreted these issues in light of the Constitution while also striking a balance between the public&#8217;s right to information and political contribution anonymity.

It gives a concise summary of the Supreme Court&#8217;s ruling and its implications for political funding and electoral transparency, expressing the judiciary&#8217;s position on the necessity of accountability and public participation in democratic processes.

While maintaining the complexity of the issues at hand, the text is still understandable to readers by emphasizing the case&#8217;s main points and its wider implications for democracy and electoral funding transparency.

Because the summary is brief and effectively communicates the main points, it is appropriate for readers who want a thorough understanding in a concise format.

By concentrating on the most important and pertinent details of the case, the condensed narrative guarantees reader attention and makes it easier to comprehend the case&#8217;s relevance within the broader discussion of political financing and democratic integrity.

&nbsp;DEFECTS OF LAW

The Supreme Court of India emphasized serious legal flaws in the Election Bond Scheme in the State Bank of India v. Association for Democratic Reforms case, highlighting larger issues with India&#8217;s legal and democratic framework:

Because the Electoral Bond Scheme is anonymous, donors&#8217; identities are concealed, which may allow for improper influence over political decisions. Since political parties are not held responsible for the sources of their funding, there is a risk that decisions made by them will be influenced by hidden interests rather than the interests of the general public. This lack of transparency erodes accountability.

Unrestricted corporate contributions can skew political decisions by giving corporations excessive influence over decisions and policies while remaining anonymous. The democratic ideal of equality is threatened by this, since it elevates the interests of affluent donors above those of common people.

The Right to Information Act of 2005 and other constitutional rights may be violated by the scheme&#8217;s secrecy surrounding political donations. The plan violates the public&#8217;s right to know and take part in the democratic process by keeping the funding sources secret.

The scheme may unjustly favor larger political parties over smaller ones, potentially violating the fundamental right to equality before the law, as suggested by the Supreme Court&#8217;s declaration that the scheme is discriminatory.

The operational flaws and their effects on the banking system are brought to light by the practical difficulties in disclosing bond transactions. The intricacy of reconciling donor data with bond transactions highlights additional shortcomings in the scheme.

The public&#8217;s confidence in the electoral process is undermined when donor anonymity is prioritized over transparency. The urgent need for reforms to ensure accountability and transparency in political financing is underscored by the possibility that citizens will lose faith in the fairness and integrity of elections in the absence of transparency.

INFERENCE

A turning point in the ongoing discussion about political funding transparency and the integrity of Indian democratic processes has been reached by the Supreme Court of India&#8217;s ruling in the State Bank of India v. Association for Democratic Reforms case. The Court&#8217;s ruling not only calls into question the structure of the Electoral Bond Scheme but also establishes a standard for future discussions of political funding sources.

The Court&#8217;s ruling is based on its unwavering position that political donation transparency is vitally important. The Court emphasized the vital need for citizens to have access to information regarding the financial contributions received by political parties by ruling against the anonymity offered by the Electoral Bond Scheme.

&nbsp;This decision is a clear affirmation of the belief that an informed electorate is fundamental to the functioning of a robust democracy.

&nbsp;Great worries about the political power structure are raised by the Court&#8217;s focus on the possibility of unbridled corporate influence and the degradation of democratic accountability through anonymous donations. These worries align with larger worries about the impact of wealth on governance and policy-making, implying that opaque financial contributions have the potential to unreasonably influence political agendas and priorities at the expense of the general welfare and interest of the public.

Additionally, the ruling discusses the conflict between the Right to Information Act of 2005 and the Electoral Bond Scheme, emphasizing a crucial point of intersection between political financing practices and transparency laws. The Court&#8217;s assertion that the scheme is incompatible with constitutional rights to information serves as a reminder of the moral and legal necessity of transparency within the democratic apparatus.

The decision also questions the scheme&#8217;s viability and the undue burden it places on banking institutions, reflecting on the procedural and practical difficulties it presents. This part of the ruling points to a more general criticism of the plan&#8217;s conception and execution, arguing that practical and long-lasting mechanisms for political financing are just as important as adhering to democratic ideals. <a href="#_ftn6" id="_ftnref6">[6]</a>

&nbsp;The Supreme Court&#8217;s decision serves as a strong call for reforms that prioritize openness, support democratic accountability, and guarantee that political contributions serve the public interest in the reevaluation of political financing in India. By making sure that the channels of political financing are transparent to the public, this historic decision strengthens the foundations of democracy and increases confidence in both the electoral process and the democratic system as a whole.

Shristi Kumari , University Of Law And Legal Studies, GGSIPU

<a href="#_ftnref1" id="_ftn1">[1]</a> State Bank of India v. Association for Democratic Reforms, 2024 INSC 195, 486 Misc. App. 2024 (2024).

<a href="#_ftnref2" id="_ftn2">[2]</a><a href="https://www.bing.com/search?pglt=43&amp;q=sbi+vs+association+of+democratic+reforms+and+others&amp;cvid=1d7f060a1a374a9da6c3e4a0a138e1c3&amp;gs_lcrp=EgZjaHJvbWUqBggAEEUYOzIGCAAQRRg7MgYIARAAGEAyBggCEEUYOTIGCAMQABhAMgYIBBAAGEAyBggFEAAYQDIGCAYQABhAMgYIBxAAGEAyBggIEAAYQNIBCDQ0NDhqMGoxqAIAsAIA&amp;FORM=ANNTA1&amp;PC=U531">https://www.bing.com/search?pglt=43&amp;q=sbi+vs+association+of+democratic+reforms+and+others&amp;cvid=1d7f060a1a374a9da6c3e4a0a138e1c3&amp;gs_lcrp=EgZjaHJvbWUqBggAEEUYOzIGCAAQRRg7MgYIARAAGEAyBggCEEUYOTIGCAMQABhAMgYIBBAAGEAyBggFEAAYQDIGCAYQABhAMgYIBxAAGEAyBggIEAAYQNIBCDQ0NDhqMGoxqAIAsAIA&amp;FORM=ANNTA1&amp;PC=U531</a> (Last visited Mar. 20, 2024)

<a href="#_ftnref3" id="_ftn3">[3]</a> State Bank of India v. Association of Democratic Reforms &amp; Others, INSC 195 MA 486/2024, 2024 WL 123456 (Sup. Ct. Ind. Mar. 21, 2024).

<a href="#_ftnref4" id="_ftn4">[4]</a> Dhananjay Mahapatra, Supreme Court pulls up SBI, tells it to disclose bond numbers linking donors &amp; parties, Times of India (Mar. 16, 2024),&nbsp;&nbsp; <a href="https://www.bing.com/ck/a?!&amp;&amp;p=8fb442621c848736JmltdHM9MTcxMDk3OTIwMCZpZ3VpZD0wMGRkNjEzMC02MzEyLTY0MjYtMTFmZS03NTc5NjJlMDY1ZDQmaW5zaWQ9NTAwMw&amp;ptn=3&amp;ver=2&amp;hsh=3&amp;fclid=00dd6130-6312-6426-11fe-757962e065d4&amp;u=a1aHR0cHM6Ly90aW1lc29maW5kaWEuaW5kaWF0aW1lcy5jb20vaW5kaWEvc3VwcmVtZS1jb3VydC1wdWxscy11cC1zYmktdGVsbHMtaXQtdG8tZGlzY2xvc2UtYm9uZC1udW1iZXJzLWxpbmtpbmctZG9ub3JzLXBhcnRpZXMvYXJ0aWNsZXNob3cvMTA4NTMzNTk2LmNtcw&amp;ntb=1">https://timesofindia.indiatimes.com/india/supreme-court-pulls-up-sbi-tells-it-to-disclose-bond-numbers-linking-donors-parties/articleshow/108533596.cms</a>

<a id="_ftn5" href="#_ftnref5">[5]</a> Electoral bonds case | Five-judge Bench to hold special sitting on SBI plea for more time, The Hindu (Mar. 8, 2024, 10:06 PM),<a href=" https://www.thehindu.com/news/national/electoral-bonds-case-five-judge-bench-to-hold-special-sitting-on-sbi-plea-for-more-time/article65289417.ece."> https://www.thehindu.com/news/national/electoral-bonds-case-five-judge-bench-to-hold-special-sitting-on-sbi-plea-for-more-time/article65289417.ece.</a>

<a href="#_ftnref6" id="_ftn6">[6]</a> Association of Democratic Reforms and Anr. v. Union of India and Ors., [Miscellaneous Application Diary No. 11805 of 2024], [Miscellaneous Application No. 486 of 2024], [Writ Petition (Civil) No. 880 of 2017], Supreme Court of India (Mar. 15, 2024).
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Abstract

The concept of indirect discrimination, while seemingly neutral on the surface, poses significant challenges to equality and inclusion in various facets of society, particularly in the workplace.

This abstract delves into the meticulous dynamics of indirect discrimination, contrasting it with direct discrimination, and explores its manifestation through case studies and legal precedents within Indian jurisprudence.

Drawing understanding from landmark cases such as Col Nitisha v UOI and Sharmila Yadav vs UOI and ORS, the abstract demonstrates the judicial interpretation and application of indirect discrimination, emphasizing its detrimental effects on marginalized groups, particularly women and minorities. Through a comparative analysis with international legal frameworks, the abstract underscores the pivotal role of Indian courts in advancing the principles of equality and non- discrimination.

Moreover, the abstract highlights the interconnectedness of indirect discrimination with factors such as gender, pregnancy, caste, religion, and disability, depicted through real-world scenarios and legal interpretations. It discusses the implications of indirect discrimination in perpetuating glass ceiling barriers, obstructing the career progression of women and minorities in corporate settings.

Furthermore, the abstract examines the legislative landscape aimed at combating indirect discrimination, citing provisions from the Indian Constitution and relevant statutes such as the Equal Remuneration Act, 1976, and the Mental Healthcare Act, 2017. It underscores the importance of transparent recruitment practices, inclusive policies, employee resource groups, and a culture of feedback and awareness in mitigating indirect discrimination and promoting diversity and inclusion in the workplace.

the abstract reflects on the evolution of Indian jurisprudence towards a more inclusive legal framework, propelled by judicial activism and a commitment to substantive equality. It advocates for proactive measures to address indirect discrimination, emphasizing the role of

leadership, legal education, and societal awareness in fostering a truly equitable and just society for all individuals, irrespective of their background or characteristics.

Keywords

indirect discrimination ,Workplace , Women, Legal , Equality

Research methodology

This paper is of descriptive nature and the research is based on secondary sources for the deep analysis of the indirect discrimination and glass ceiling discrimination in India. Secondary sources of information like journals, newspapers and websites are used for the Research.

Review of literature

The literature review aims to explore the concept of indirect discrimination within workplace settings, synthesizing existing scholarship and legal precedents to offer insights into its complexities and implications. By critically analyzing a range of sources, the review seeks to deepen understanding of indirect discrimination, its manifestations, and the effectiveness of interventions in addressing this issue.

Indirect discrimination occurs when ostensibly neutral practices disproportionately disadvantage individuals with protected characteristics. This review delves into the intricacies of indirect discrimination, contrasting it with direct discrimination, and highlighting its impact on marginalized groups. It emphasizes the role of systemic biases and organizational structures in perpetuating inequalities.

The literature on indirect discrimination reveals its multifaceted nature and its pervasive influence on diverse aspects of society, especially in the realm of employment. Judgements by judges such as Chief Justice D.Y. Chandrachud , Delhi HC Judges Sanjiv Khanna and Navin Chawla have examined the complexities of indirect discrimination, emphasizing its detrimental effects on marginalized groups and the perpetuation of structural inequalities. Legal precedents, including landmark cases like Col Nitisha v UOI and Sharmila Yadav vs UOI and ORS, offer insights into judicial interpretations and applications of indirect discrimination within Indian jurisprudence

Legislative measures, including the Equal Remuneration Act, 1976, and the Mental Healthcare Act, 2017, contribute to combating discrimination based on gender and disability. Moreover, scholarly discourse on the glass ceiling phenomenon elucidates how indirect discrimination hinders career advancement for women and minorities in corporate settings.

Research emphasizes the need for proactive measures such as transparent recruitment practices, inclusive policies, and employee resource groups to mitigate indirect discrimination and promote diversity and inclusion in workplaces.

Introduction

Indirect discrimination occurs when an apparently neutral provision, criterion, or practice (PCP) is applied, which puts (or would put) a person with a protected characteristic at a particular disadvantage. so for example, an employer requires all their employees to be 6ft tall. Women would be disadvantaged by that criteria because they are less likely to be able to meet it.

It must be shown that :

<ul>
<li>a provision, or a criterion, or practice has been (or would be) applied to all</li>
</ul>

<ul>
<li>it puts people with a protected characteristic at a particular disadvantage compared to others</li>
</ul>

<ul>
<li>A particular person has in fact, been put at that disadvantage, and</li>
</ul>

<ul>
<li>the PCP cannot be objectively justified</li>
</ul>

Indirect discrimination, however, can be justified. A justification is where there is a proportionate means of achieving a legitimate aim. So, in our example, the employer’s legitimate aim may be that he requires his employees to be strong, for example a rescue service where people may need to be rescued from a building that would be a legitimate aim. However, is requiring six foot height criteria, a proportionate means of achieving that aim? This must be considered whether there is a less discriminatory way you can achieve the aim that you have. So for example, applying a requirement that employees have a certain level of strength may be a more proportionate way of ensuring that staff are able to carry out a job, and that would be less discriminatory against women.

Is the action proportionate?

<ul>
<li>is it legal?</li>
</ul>

<ul>
<li>is it nondiscriminatory?</li>
</ul>

<ul>
<li>is it objective?</li>
</ul>

Is the action legitimate?

<ul>
<li>is it appropriate?</li>
</ul>

<ul>
<li>is it necessary?</li>
</ul>

<ul>
<li>is it the least discriminatory option?</li>
</ul>

Direct Vs Indirect discrimination

This is an area of law that can still cause difficulties today. This doctrinal divide between direct and indirect discrimination in which the former is based on intent and the latter on effect was highlighted in the judgment of Col Nitisha v UOI, 2021.

Direct discrimination is when you are treated unfavorably as a direct result of one of the FIVE protected characteristics under the Article 15(1)1 of the Indian Constitution. These are religion, race ,caste, gender and place of birth .

There is no justification and no defense for direct discrimination. Direct discrimination can also happen by association, if you are treated unfairly due to someone else&#8217;s protected characteristic. It will be direct discrimination if you are treated unfavorably because someone perceived that you have a protected characteristic, even if you don’t actually have it.

Indirect discrimination is when everyone is treated equally. The same policy or practice is executed and implemented to everyone in the same way, but in doing so one group (with a protected characteristic) is placed at a disadvantage.

To prove indirect discrimination, it must be shown

1 Constitution of India art. 15, cl. 1-6.

Firstly, that a practice has been or would be applied to all in a group,

Secondly, it puts a particular group (with a protected characteristic) at disadvantage, Thirdly, a particular person has been put at that disadvantage, and

Lastly, that there is no objective justification.

Unlike direct discrimination, indirect discrimination can be justified. This must be a relative means of achieving a legitimate aim. But it is important to remember that employers should always consider whether the action is proportionate and whether there is a less discriminatory option for achieving the legitimate aim.

Indirect Discrimination in Workplace

In the workplace context in India, indirect discrimination can manifest in various forms, often intersecting with factors such as gender, pregnancy, caste, religion, and disability. To illustrate, let&#8217;s consider a scenario involving indirect discrimination relating to sex and pregnancy.

Imagine a female employee who has recently returned from maternity leave and now seeks a flexible working arrangement to better balance her childcare responsibilities with her job duties. She submits a request to her manager, asking to reduce her hours, but her request is denied, citing a company policy that mandates all employees to work full-time.

In this scenario, the company&#8217;s policy, while seemingly neutral on the surface, disproportionately affects women, particularly those who are mothers. Statistically, women are more likely to bear the primary responsibility for childcare duties, and thus, they may require flexible working arrangements more frequently than their male counterparts. By rigidly adhering to a full-time work requirement without considering individual circumstances, the company indirectly discriminates against female employees, creating barriers to their equal participation and advancement in the workplace.

Addressing claims of indirect discrimination requires a proactive approach rooted in fostering a workplace culture that values diversity and inclusion. Employees should feel empowered to raise 2concerns about discrimination without fear of reprisal or adverse consequences to their employment status.

When dealing with grievances related to indirect discrimination, it is essential to follow a fair and transparent process. This entails conducting thorough investigations, gathering evidence, and interviewing witnesses in accordance with the Article 14 and 15(1) of the Indian Constitution and relevant Indian legislations.

Implementing an equal opportunities policy is crucial in demonstrating an organization&#8217;s commitment to combating discrimination in all its forms. Such a policy should explicitly outline the company&#8217;s stance against discrimination based on protected characteristics such as gender, caste, religion, disability, and others. By clearly articulating zero-tolerance for discrimination and promoting equal opportunities for all employees, organizations can create a more inclusive and equitable work environment.

Furthermore, providing support and accommodations for employees with diverse needs is essential in ensuring fair treatment and equal access to opportunities. This may include offering flexible working arrangements, reasonable accommodations for employees with disabilities, and sensitivity training for managers and staff to mitigate unconscious biases and promote inclusivity.3

How Indirect Discrimination Creates Glass Ceilings?

Glass ceiling discrimination is a form of promotion discrimination. it refers to a set of “artificial barriers” that have been keeping women and other racial minorities from securing the highest paid and most powerful positions in corporations. While the diversity of corporate world has certainly made significant progress over the last several decades, what we&#8217;re seeing is a stubborn persistence

2 N. Noor et al., Discriminatory Practices and Poor Job Performance: A Study of Person-Related Hostility Among Nursing Staff, 9 HELIYON no. 3, at e14351 (2023), <a href="https://doi.org/10.1016/j.heliyon.2023.e14351">https://doi.org/10.1016/j.heliyon.2023.e14351</a>

3K. Tsubono et al., Multidimensional Analysis of Schoolteachers’ Occupational Stress by the New Brief Job Stress Questionnaire: Focusing on Gender Differences, 62 INDUSTRIAL HEALTH 39 (2024), <a href="https://doi.org/10.2486/indhealth.2023-0018">https://doi.org/10.2486/indhealth.2023-0018</a>.

of women and racial minorities generally being excluded from those top, most powerful, highest paying jobs.

Despite significant promotion of diversity in companies, as well as legislation for equal opportunities for women and men, it must be noted that women still remain largely in the minority in decision-making positions. This observation gives consideration to the phenomenon of the glass ceiling that amounts to vertical discrimination within companies against women.

the metaphor of the “glass ceiling.” This phenomenon of companies’ vertical discrimination against women has been widely studied by the academic community in various fields (management, human resources, finance, and psychology.

The glass ceiling is closely related to indirect discrimination as it represents a systemic barrier that impedes the advancement of certain groups, particularly women and minorities, within the workforce. While the glass ceiling may not be explicitly discriminatory in nature, it effectively prevents qualified individuals from accessing higher levels of employment based on characteristics such as gender, race, or ethnicity.

Indirect discrimination manifests through ostensibly neutral policies, practices, or cultural norms that disproportionately disadvantage certain groups. In the context of the glass ceiling, this can include criteria for promotion, leadership opportunities, or access to training and development programs that inadvertently favor dominant groups while excluding or limiting the advancement of marginalized individuals.

For instance, a company may have policies that require employees to have a certain number of years of uninterrupted full-time service for promotion to executive positions. While this policy may seem neutral on the surface, it disproportionately affects women who may have taken breaks from their careers for caregiving responsibilities or other reasons. As a result, even though women may possess the requisite qualifications and skills, they find themselves unable to break through the glass ceiling due to indirect discriminatory practices.

Similarly, cultural biases and stereotypes can contribute to the perpetuation of the glass ceiling phenomenon. For example, unconscious biases may lead decision-makers to perceive women as less capable or less suited for leadership roles, resulting in their exclusion from advancement

opportunities. These biases are often subtle and ingrained within organizational cultures, making them difficult to detect and address.4

Indirect Discrimination in Indian Jurisprudence.

Col Nitisha v UOI, 2021

In this case, the Supreme Court of India introduced the concept of &#8216;indirect discrimination&#8217; into the country&#8217;s legal framework, aiming to reinforce the principles of equality and non-discrimination deeply ingrained in constitutional jurisprudence. Led by Justice D Y Chandrachud, the court embarked on an extensive exploration of this concept, drawing insights from the judicial practices of several nations including the United States, the United Kingdom, South Africa, and Canada. The verdict, which resonated with the essence of Baroness Hale&#8217;s perspective from a 2009 UK Supreme Court judgment, signifies a pivotal moment in Indian legal history.

The genesis of this development lies in a case concerning 86 women Short Service Commission officers advocating for parity in the application of standards for the grant of permanent commission. The court astutely recognized that seemingly neutral standards could inadvertently perpetuate patriarchal biases, indirectly discriminating against women.5 Acknowledging the nascent stage of jurisprudence surrounding indirect discrimination in India, the bench referred to sporadic mentions in previous judgments, including one authored by Justice Chandrachud himself, which decriminalized consensual private relations within the LGBTQ community.

Central to the court&#8217;s elucidation was the distinction between direct and indirect discrimination. Direct discrimination pertains to discriminatory acts driven by conscious bias, whereas indirect discrimination arises from ostensibly neutral criteria that disproportionately impact certain groups. Justice Chandrachud emphasized that indirect discrimination, though not overt, is as pernicious as its direct counterpart. It stems from unconscious biases or systemic structures that inadvertently

4A. Babic &amp; I. Hansez, The Glass Ceiling for Women Managers: Antecedents and Consequences for Work-Family Interface and Well-Being at Work, 12 FRONTIERS IN PSYCHOLOGY 618250 (2021), <a href="https://doi.org/10.3389/fpsyg.2021.618250">https://doi.org/10.3389/fpsyg.2021.618250</a>.

5 Col Nitisha v Union of India (UOI), (2021) 2 SCC 1

perpetuate inequality. Thus, to achieve substantive equality mandated by the Constitution, the court underscored the imperative of prohibiting indirect discrimination

The court&#8217;s deliberation highlighted the significance of focusing not only on the intent behind an action but also on its consequences. While direct discrimination involves assessing the act itself in isolation, indirect discrimination necessitates scrutiny of the broader institutional or societal context in which the act occurs. This doctrine, the court asserted, broadens the scope of anti- discrimination laws to address covert forms of discrimination that may evade conventional scrutiny.

In navigating the terrain of indirect discrimination, the court articulated a nuanced approach. It highlighted the need to evaluate the necessity of ostensibly neutral provisions, criteria, or practices concerning job performance. This entails discerning whether such measures are indispensable for achieving legitimate aims or merely perpetuate discriminatory outcomes.

Sharmila Yadav vs UOI and ORS,2017

This case showed CRPF&#8217;s Failure to Promote Female Officer Due to Pregnancy , the Delhi High Court criticized the Central Reserve Police Force (CRPF) for failing to promote a female officer, Assistant Sub-Inspector Sharmila Yadav, due to her pregnancy, highlighting a significant stance against pregnancy discrimination. The case originated when Sharmila Yadav, initially recruited as a constable in 2009, successfully passed a departmental exam for the role of Assistant Sub- Inspector. However, despite her qualifications, her promotion was delayed due to her being categorized in a lower medical category because of her pregnancy.

Yadav raised concerns about this unfair treatment to her seniors, which led to her eventual promotion in 2012 but without the restoration of her seniority. This lack of seniority restoration resulted in her being ranked below her peers and even some juniors, affecting her career progression within the CRPF.

The CRPF defended their decision by stating that Yadav was placed on the promotion list for 2011-12, but her promotion was deferred until 2012-13 when she was deemed medically fit. The

force argued that since Yadav was promoted after her juniors, she could not claim seniority over them.

Addressing the issue, Delhi High Court Justices Sanjiv Khanna and Navin Chawla emphasized that pregnancy should not be considered a disability or a disqualification. The court condemned the CRPF&#8217;s actions as discriminatory and violative of gender equality principles, stating that such discrimination against pregnant women is unacceptable and infringes upon their rights.6

The court further declared that treating pregnancy unfavorably is unlawful and constitutes gender discrimination, stressing the importance of providing equal opportunities for promotion and career development to all employees, irrespective of their gender or pregnancy status.

In its verdict, the Delhi High Court quashed the CRPF&#8217;s orders regarding Yadav&#8217;s seniority and ordered the restoration of her seniority, as if she had been promoted alongside her immediate junior. Additionally, Yadav was entitled to receive arrears dating back three years from the filing of her petition, underscoring the court&#8217;s commitment to rectifying the injustice she faced.

This judgment serves as a critical reminder of the legal protections against gender-based discrimination, reinforcing the notion that pregnancy should not impede a woman&#8217;s career advancement or rights within the workplace. The decision by the Delhi High Court marks a significant step towards ensuring equality and combating discriminatory practices in employment, particularly against women who choose to become mothers.

The court&#8217;s deliberation underscored the significance of focusing not only on the intent behind an action but also on its consequences. While direct discrimination involves assessing the act itself in isolation, indirect discrimination necessitates scrutiny of the broader institutional or societal context in which the act occurs. This doctrine, the court asserted, broadens the scope of anti- discrimination laws to address covert forms of discrimination that may evade conventional scrutiny.

Decode: Laws Against Indirect Discrimination

6 Sharmila Yadav v Union of India, W.P. (C) No. 2631/2014

<ul>
<li>Constitution of India:</li>

<li>Articles 147, 15, 168, 17, and 18 (right to equality) of the Constitution of India form the equality rights and forms a cornerstone of the legal framework against discrimination. These five articles combined , guarantee equality before the law, prohibit discrimination on grounds of religion, race, caste, sex, or place of birth, and also ensures equal opportunity in public employment.</li>

<li>Equal Remuneration Act, 1976:</li>

<li>The Equal Remuneration Act, 1976, ensures that both men and women receive equal pay for equal work, in that way , addressing indirect discrimination based on gender in the workplace.9</li>

<li>Indian Penal Code, 1860 (Section 153 A):</li>

<li>Section 153 A of the Indian Penal Code criminalizes use of language that promotes discrimination or violence against any individual based on various protected categories, including race, caste, sex, religion, gender identity, and sexual orientation, by such means , combating indirect discrimination and hate speech.10</li>

<li>Mental Healthcare Act, 2017:</li>

<li>The Mental Healthcare Act, 2017, prohibits denial or refusal of mental healthcare services based on various protected categories such as race, caste, religion, sex, gender identity, and sexual orientation, thereupon, addressing indirect discrimination in access to mental healthcare facilities.11</li>

<li>Hindu Succession Act, 1956:</li>

<li>The Hindu Succession Act, 1956, as amended in 2004, grants daughters equal inheritance rights with sons, thus, invalidating the limited owner status of women and eliminating indirect discrimination in inheritance of property based on gender.12</li>

<li>Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989:</li>

<li>This act specifically addresses discrimination and hate crimes based on caste, ensuring protection and justice for marginalized communities against indirect discrimination.13</li>

<li>Transgender Persons (Protection of Rights) Act, 2019:</li>
</ul>

7 Article 14 of the Constitution of India,&#8221; Wikipedia, last modified on [18 july 2023], <a href="https://en.wikipedia.org/wiki/Article_14_of_the_Constitution_of_India">https://en.wikipedia.org/wiki/Article_14_of_the_Constitution_of_India</a>.

8 India Const. art. 16.

9 Equal Remuneration Act, No. 25 of 1976 (India). Indian Penal Code, 1860

10 Section 153A, Indian Penal Code, 1860

11 Mental Healthcare Act, No. 10 of 2017

12 Hindu Succession Act, No. 30 of 1956

13 Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, No. 33 of 1989

<ul>
<li>The Transgender Persons (Protection of Rights) Act, 2019, specifically prohibits discrimination and hate crimes against transgender individuals, therefore, combating indirect discrimination based on gender identity and expression.14</li>

<li>Rights of Persons with Disabilities Act, 2016:</li>

<li>The Rights of Persons with Disabilities Act, 2016, interdicts discrimination against individuals with disabilities, thereupon, addressing indirect discrimination based on physical or mental disabilities.15</li>

<li>Industrial Disputes Act, 1947 (Section 2(ra) and Section 25T):</li>

<li>Sections 2(ra) and 25T of the Industrial Disputes Act, 194716, in addition with relevant state laws, address unfair labor practices such as victimizing workers and favoring one group over another, irrespective of merit. These provisions altogether aim to prevent indirect discrimination in the workplace.</li>

<li>These laws collectively provide a robust framework against indirect discrimination in various spheres of life, ensuring equality, dignity, and justice for all individuals, irrespective of their background or characteristics</li>
</ul>

Suggestions

<ul>
<li>Enhance transparency: ensure and promote transparency in recruitment, promotion, and decision- making processes. This will help in reducing the biases and perception of unfair treatments.</li>
</ul>

<ul>
<li>Inclusive and flexible policies: implement inclusive policies within the organization . Also, ensure that these policies explicitly address issues of indirect discrimination. Implement flexible work policies that accommodate employees diverse and different needs, such as remote work option, flexible working hours, maternal leave and paternal leave. This will help reducing barriers to advancement.17</li>
</ul>

14 Transgender Persons (Protection of Rights) Act, No. 40 of 2019

15 Rights of Persons with Disabilities Act, No. 49 of 2016

16 Industrial Disputes Act, No. 14 of 1947, §§ 2(ra), 25T (India), available at https://<a href="http://www.indiacode.nic.in/handle/123456789/15191?sam_handle=123456789/1362">www.indiacode.nic.in/handle/123456789/15191?sam_handle=123456789/1362.</a>

17“A Modest Manifesto for Shattering the Glass Ceiling,” Harvard Business Review, January 2000,

<a href="https://hbr.org/2000/01/a-modest-manifesto-for-shattering-the-glass-ceiling.">https://hbr.org/2000/01/a-modest-manifesto-for-shattering-the-glass-ceiling.</a>

<ul>
<li>Employee resource groups (ERGs): promote and encourage ERGs that represents diversified interests of employees belonging from diverse communities within the organization, this will lead to inclusiveness between the employees and will also prevent glass ceiling discrimination.</li>
</ul>

This group will provide support, networking opportunities, and a platform for addressing issues of indirect discrimination.

<ul>
<li>Culture of feedback: encourage a culture where feedbacks are appreciated and heard. Increase open communication and feedback channels where employees can raise concerns about indirect discrimination without the fear of retaliation. Active listening and promotion of understanding is vital.18</li>
</ul>

<ul>
<li>Awareness and Education: Provide regular training sessions and workshops for employees at all levels to raise awareness about indirect discrimination, unconscious bias, and the impact of the glass ceiling. This can help foster a more inclusive workplace culture.</li>
</ul>

Lead by Example: Leadership must exemplify inclusive behaviors and actively promote diversity and inclusion initiatives throughout the organization. When leadership demonstrates a commitment to combating indirect discrimination and breaking through the glass ceiling, it sets a powerful example for others to follow.19

Conclusion

In conclusion, the recognition and analysis of indirect discrimination within Indian jurisprudence mark a significant event in the pursuit of equality and justice. Through landmark cases such as Col Nitisha v UOI and Sharmila Yadav vs UOI and ORS, the judiciary has demonstrated a commitment to addressing hidden forms of discrimination that undermine the principles of equality enshrined in the Indian Constitution. By distinguishing between direct and indirect discrimination, the courts

18 “8 Ways to Prevent Discrimination in Your Workplace,” Health and Safety Handbook, [13 March,2024], https://<a href="http://www.healthandsafetyhandbook.com.au/bulletin/8-ways-to-prevent-discrimination-in-your-workplace/">www.healthandsafetyhandbook.com.au/bulletin/8-ways-to-prevent-discrimination-in-your-workplace/.</a>&nbsp;19“Prevent Discrimination in the Workplace,” EasyLlama, [14 March 2024], https://<a href="http://www.easyllama.com/blog/prevent-discrimination-in-the-workplace/">www.easyllama.com/blog/prevent-discrimination-in-the-workplace/.</a>

have expanded the scope of anti-discrimination laws to encompass systemic biases and structural inequalities that perpetuate injustice.

Furthermore, the proactive approach taken by the judiciary in articulating the implications of indirect discrimination and providing guidance for its acknowledgement reflects a progressive evolution in legal thought. By emphasizing the importance of evaluating both the intent and consequences of actions, the courts have underscored the need for a holistic understanding of discrimination in all its forms.

The legal framework against indirect discrimination, supported by constitutional provisions and relevant statutes, serves as a bulwark against inequality and injustice. By ensuring equal opportunities and protections for all individuals, irrespective of their background or characteristics, these laws uphold the fundamental principles of dignity, fairness, and inclusivity.

Moving forward, it is crucial to build upon these legal foundations and continue the fight against indirect discrimination in all spheres of life. Enhancing transparency, promoting inclusive policies, fostering awareness and education, and leading by example are essential steps towards creating a more equitable and just society. Through collective efforts and unwavering commitment, we can overcome the barriers posed by indirect discrimination and strive towards a future where every individual is treated with dignity, respect, and equality under the law.20

Shristi kumari

University School Of Law And Legal Studies,GGSIPU

20 Col Nitisha v Union of India (UOI), (2021) 2 SCC 1
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<figure class="wp-block-table"><table><tbody><tr><td>Case Title</td><td>Budhadev Karmaskar vs The State Of West Bengal&nbsp;</td></tr><tr><td>Citations</td><td>2011 AIR SCW 1303, 2011 (11) SCC 538, 2011 CRI. L. J. 1684, AIR 2011 SC (CRIMINAL) 575, 2011 (3) AIR JHAR R 316, (2011) 2 CHANDCRIC 128, (2011) 2 JCR 65 (SC), 2011 CRILR(SC&amp;MP) 236, 2011 (3) SCC(CRI) 397, 2011 (2) SCALE 435, 2011 ALL MR(CRI) 943, (2011) 99 ALLINDCAS 46 (SC), 2011 CRILR(SC MAH GUJ) 236, 2011 (1) CALCRILR 759, 2011 (73) ALLCRIC 1, 2011 (1) KER LT 111 SN, 2011 (1) GUJLR 8 NOC, (2011) 1 RECCRIR 897, (2011) 1 ORISSA LR 932, (2011) 1 CURCRIR 452, (2011) 1 DLT(CRL) 634, (2011) 1 CRILR(RAJ) 236, (2011) 3 ALLCRIR 2401, (2011) 3 ALLCRILR 770, (2011) 2 CRIMES 17</td></tr><tr><td>Case No&nbsp;</td><td>Criminal Appeal No(s).135/2010</td></tr><tr><td>Date Of The Order&nbsp;</td><td>04- May-2023</td></tr><tr><td>Jurisdiction/ C</td><td>Supreme Court of India</td></tr><tr><td>Quorum&nbsp;</td><td>HON&#8217;BLE MR. JUSTICE L.NAGESWARA RAO HON&#8217;BLE MR. JUSTICE B.R. GAVAI HON&#8217;BLE MR. JUSTICE A.S. BOPANNA</td></tr><tr><td>Author Of The Judgement&nbsp;</td><td>All Hon’ble Justices</td></tr><tr><td>Appellant</td><td>Budhadev Karmaskar</td></tr><tr><td>Respondent&nbsp;</td><td>The State of West Bengal &amp; Ors.</td></tr><tr><td>Acts And Section Involved</td><td>I. Indian Constitution, 1950 Article 21 &nbsp;Article 38&nbsp; Article 39(a)&nbsp; &nbsp;Article 39-A &nbsp;Article 41&nbsp; Article 42&nbsp; &nbsp; II. The Code of Criminal Procedure, 1973&nbsp; Section 357C&nbsp; &nbsp; III. The Indian Penal Code, 1872&nbsp; &nbsp;Section 354C&nbsp; &nbsp; IV. The Immoral Traffic (Prevention) Act, 1956</td></tr></tbody></table></figure>

ABSTRACT

A sex worker or prostitute is an individual who offers sexual services in return for payment.The views on prostitution vary worldwide, ranging from complete bans to legislation or regulation in some cases. Laws apply to both the business aspect and the sexual aspect of this work. Different people&#8217;s perspectives vary on prostitution. Some see it as a form of work, while others view it as cruel, particularly towards women and children, contributing to issues like human trafficking. Prostitution has a long history.

In a specific case, Budhadev Karmaskar was accused of brutally murdering a prostitute who refused to have sex with him. The Calcutta High Court concluded in 2004 that him guilty of murder&nbsp;Karmaskar appealed this decision to the Supreme Court (1). However, in 2010, the Supreme Court affirmed the High Court&#8217;s decision and converted the appeal into a Public Interest Litigation due to its broader societal implications.

<ol style="list-style-type:upper-roman">
<li>FACTS</li>
</ol>

<ol style="list-style-type:upper-alpha">
<li>On September 17, 1999, at 9:15 p.m., a horrifying incident unfolded in Kolkata&#8217;s red-light area. Shrimati Chayay Rani Pal (Buri), a 45-year-old sex worker, was brutally attacked in her three-story residence by Budhadev Karmaskar. Buri, sleeping on the second floor, was tripped over, leading to a violent altercation where Karmaskar assaulted her, causing severe injuries and bleeding from her head, nose, and ear.</li>

<li>Asha Khatun, a maidservant and eyewitness, raised an alarm on the second floor as residents witnessed a brutal beating. Karmaskar fled when protests erupted, and he was arrested by the police in Jogen Dutta Lane around 2:15 a.m., within 5 hours. Tragically, Buri was declared dead upon reaching the hospital.</li>

<li>As a consequence, Karmaskar was found guilty of a severe crime – The conviction for assault resulting in murder was upheld by both the High Court and the Supreme Court. .They stressed the importance of respecting sex workers and allowing them the choice to work with dignity, free from force or false identities (2).</li>

<li>The Supreme Court, led by Senior Advocate Mr. Pradip Ghosh, formed a group proposing a the financial assistance comprises Rs. 10,00,000 from the Central Government, Rs. 5,00,000 from the State Government, and Rs. 2,00,000 from Union Territories to empower sex workers with vocational skills for self-support and dignified reintegration into society.</li>
</ol>

<ol style="list-style-type:upper-roman">
<li>ISSUES</li>
</ol>

<ol style="list-style-type:upper-alpha">
<li>Utilizing Article 21&#8217;s interpretation of &#8220;life&#8221; to secure  the entitlement to dignity in living for sex workers and their children?</li>

<li>Implementing measures to bring back, rescue, and rehabilitate sex workers into a safer environment?</li>
</ol>

<ol style="list-style-type:upper-roman">
<li>ARGUMENTS FAVOUR OF APPELLANT</li>
</ol>

<ol style="list-style-type:upper-alpha">
<li>The advocate contended that Asha Khatun&#8217;s statement provided during the examination-in-chief should not be considered admissible under Section 164 of the Code of Criminal Procedure, 1973, due to her absence during cross-examination. </li>

<li>To support this argument, the counsel cited the case of Raghuvir Singh and Ors v. State of Uttarakhand and Anr., Criminal Misc. Application (C-482) No. 2324 (3).In this case, the statement of an eyewitness was disregarded due to their absence during cross-examination.</li>

<li> The petitioner&#8217;s legal representative argued that young women are coerced into the sex trade by family members and others, emphasizing the importance of a successful rehabilitation mission for their rescue.</li>

<li> Efforts to rescue individuals face challenges unless the intricate connections between traffickers, brothel owners, and the victims&#8217; family members are severed.</li>

<li>The petitioners advocate for a streamlined helpline process by the State Legal Services Authority to empower sex trade victims for legal action and counselling; additionally, they argue that only states with active sexual activity or red-light districts should fund the panel.</li>

<li>ARGUMENTS FAVOUR OF RESPONDENT</li>

<li>The respondent argues that prompt and appropriate funding is essential for the effective operation of the panel in supporting the reintegration of sex trade victims.</li>

<li> The council, on behalf of the respondent, emphasizes the importance of fund collection for organizing workshops and meetings. This facilitates the dissemination of details regarding vocational and skill-based training are needed not just in major cities such as Mumbai, Delhi, and Kolkata but also in lesser-known areas that are in urgent need of assistance.</li>

<li>The attorney further contends that a reasonable portion of the allocated funds would be used for publications and advertising. This aims to destigmatize the reintegration of sex workers into society and facilitate the hiring of additional experts.</li>

<li>ORDER OF THE COURT</li>

<li>The court recognized the human rights of sex workers, acknowledging that many engage in sex work due to dire circumstances such as poverty or trafficking.</li>

<li>Proactively, the court initiated opportunities for vocational training to help sex workers earn a livelihood and directed the Central Government to establish a panel for reinstating victims into society.</li>

<li>The court directed the Central, State governments, and Union Territories to formulate schemes for vocational and skill-based training with the constituted panel.</li>

<li>The court emphasized the rehabilitation of sex workers through NGOs, addressing concerns about preventing sex trafficking, rehabilitating those wishing to leave, and ensuring dignity for those choosing to remain in the profession. The court also directed State Governments to provide support like ration cards and identification to sex workers.</li>

<li>The court directs State Governments yet to file affidavits to do so within six weeks. The next hearing is scheduled for July 25, 2023. Notice is issued, and Mr. Siddharth Bhatnagar, senior counsel representing the applicant(s), is asked to furnish copies of the application to Mr. Jayant Bhushan, the esteemed Amicus Curiae, and other pertinent parties (4).</li>

<li>JUDGEMENT</li>
</ol>

<ol style="list-style-type:upper-alpha">
<li>In this instance, The appeal was turned down by the Calcutta High Court, as it dismissed the applicant&#8217;s argument that the testimony of absent eyewitness Asha Khatun, who had not undergone cross-examination under Section 164 of the Code of Criminal Procedure 1973, should not be considered (5).</li>

<li>The defendant was sentenced to life imprisonment by the High District Court. In 2011, the Supreme Court established a panel of senior attorneys and judges to address the protection of sex workers and improve their lives.</li>

<li>The Supreme Court has endorsed the sex labour sector.</li>

<li>In India, engaging in sexual services is not illegal. The Supreme Court&#8217;s three-judge panel, in a landmark decision, declared that sexual service providers should receive equal respect and legal protections as any other individuals. This decision brings significant relief to sexual service providers facing acute exploitation (6).</li>

<li>Engaging in paid sexual labour is not prohibited in India.
<ol>
<li>The Indian Supreme Court has declared that every individual possesses a fundamental right to a dignified livelihood, irrespective of their profession. Authorities must consider this protection when enforcing laws related to the control of immoral trafficking (7).</li>
</ol>
</li>

<li>Rights of Individuals Engaged in Sex Work</li>

<li>Society often deems sex workers a nuisance, leading to calls for eradication. The judiciary steps in to safeguard their fundamental rights when legislative and executive efforts are lacking. Reports highlight law enforcement hostility, necessitating urgent measures to ensure constitutional rights for sex workers, involving revisions in regulations and the implementation of policies for their well-being.</li>
</ol>

<ul>
<li>COMMENTARY</li>
</ul>

In India the laws come into existence by 3 major branches one is parliamentary laws, secondly rules, regulations and recommendations framed by the supreme court and thirdly by ordinances. Our Hon&#8217;ble Supreme court generously plays a major role whenever, the question comes to address any contemporary issues where the laws are not framed yet. Certainly, by exercising the power under Article 142 of the Constitution of India. The Supreme Court has provided various judgements to regulate the issues in our country (8).

In the present case, the Hon’ble Supreme Court constitutes penal for sex workers comprising Justice L. Nageswara Rao, Justice B.R. Gavai and Justice A.S. Bopanna. The panel gave certain recommendations which are as commented.

<ol style="list-style-type:upper-alpha">
<li>Recommendations</li>

<li>Protection from Police</li>

<li>In regards to the rehabilitation measures firstly the police were directed to treat any women who are indulged in sexual activities with respect, equality and dignity. The concept of prostitution comes from the ancient times when the system of devadasi was followed and later those devadasi were exploited (9). However in this era, where development is at its peak in India, somewhere there is still some orthodox mentality present in the society which gives birth to the unequal practices followed by the people at large. One such example is Mathura rape case where the women was raped inside police station by considering her as she was &#8220;habituated to sexual intercourse&#8221;(10). Such cases represent the stereotype mentality, which is being practiced even by authorities and society.</li>

<li>All of those practices violate the rights of those sex workers who are providing sexual services. Even the police authorities mistreat them whenever any of such sexual workers files complaint or part of any investigation or case. Generally, the sex workers provide services through brothels and in India there are multiple cases where the police raids and penalises all of those sex workers (11). Nevertheless the law terms voluntarily providing sexual services as a legal but contradicting to it, running a brothel is illegal. The police takes violent and aggressive criminal actions against those sexual workers.</li>

<li>Most of the sexual workers work under brothel keepers because there are many benefits of it. Such as the comfort, interdependency between the brothel operator and the sex workers (as they get clients accordingly and the sex workers get their income for service), Unionization (as all sex workers provides similar kinds of services under one operator) and many more. Instead, the recommendation should direct the laws which appropriately recognise, regulate and direct the central to set a mechanism to legalize the sex trade and brothels.</li>

<li>Right to medical care and health.</li>

<li>i. The right to health, enshrined in Article 21 of the Constitution, is a fundamental entitlement, and the right of patients to receive dignified treatment is not only a fundamental right but also a human rights (12). As per the present situation where there is no law governing prostitution in India, there are many red-light areas where the prostitutes are forced to provide sexual services and considering all those prostitutes as victims of sexual assault the recommendation (ii) serves as a Protection against the discrimination and prejudice followed against sex workers.</li>

<li>Moreover, under the preview of DPSP is the duty of the State to provide health care facilities and to improve public health. As sex workers are the one who are under greater risk of suffering through sexually transmitted diseases. There are many chances that any sexual workers become holder of such diseases and can spread through their clients. Certainly, the recommendation is not sufficient enough to direct the State for justifying their duties. There should be more strict recommendations and directions for the central to frame polices for better health care facilities such as heath check-ups and framing polices for providing medical benefits to those sexual workers who are treated in an undignified manner and have a discriminant attitude while providing medical facilities.</li>

<li>Awareness</li>

<li>In order to avail rights, acknowledgment of rights is very necessary. Part III of the Constitution of India, to every citizen guarantees some basic fundamental rights, amongst which right to live with dignity (13) (Art 21) is also one, which includes right to be treated with dignity even in police custody and to be treated equal before the eyes of law.</li>

<li>In order to get a dignified life for these sex workers and to keep a check on the verbal and physical abuse done by the police upon them, as per the recommendation made in para (ix) an awareness drive is much needed by the Central and the State Government amongst the sex workers.</li>

<li>The Central and the State Government, shall educate these workers upon their basic human and fundamental rights, about the offenses done against women, the procedure to file an FIR, and also about the health and safety measures which are essential for them.</li>

<li>The Central and State Government shall not only educate these workers but also put heavy penalty upon the police officers who infringes the rights of these workers, so that the fear of punishment may put a check upon such abuse.</li>

<li>The Central and State Government can also have legal drives to educate these workers upon approaching the judicial system. Moreover, all the Central legal aid services, State legal aid services and the District legal aid services shall be directed to spread awareness. All of those legal aid services should, time to time organise legal aid camps, workshops and door to door awareness campaign by providing pamphlets or one to one talks, especially in those red light areas.</li>

<li>There are some awareness campaigns carried out by the State District Legal aid services such as the South west Delhi district legal aid services organised a workshop(14) based upon these directions which shows that this is a positive move and should be followed by all other states because every state and district have red light areas where sex workers live and to spread awareness at ground level is the need of the hour and one of the most important goals and a step to be taken in this direction.</li>

<li>Restriction on Media</li>

<li>Media is the fourth pillar of democracy. Media includes any kind of information sharing agencies which broadcast, print or transmit news. The council is performing for a major mission which is to raise the standard of press and preserving the freedom (15).</li>

<li>In India the media follows many practices, like blurring the face and restricts itself from disclosure of name and basic information such that in order to not reveal the identity of the female, whenever the news is in regards to any female victims. Moreover, as per sec 228-A of the Indian Penal Code, 1860 (16), it is expressly mentioned that the identity of any person who is alleged or found to be committed any offence under sec. 376 (17) as whole and who is a victim shall not be disclosed. Such provisions represent the nature of society towards all of those female victims and criminals where they can face notoriety and Scandalmongering.</li>
</ol>

In the same course, the sex worker&#8217;s identity is generally revealed whenever the news coverage shows raids on brothels or any other premises. This direction will play a significant role as it will punish under section 354C of Indian Penal Code (18) as any media agencies in any form if showcases then it will be considered as a crime.

<ul>
<li>Children of sex workers</li>

<li>Children of the sex workers are the ones who face a lot of consequences and are forced to live an abnormal life. All these children face social discrimination and inequality leading to an undignified life.</li>

<li>There are studies conducted by The National Commission for Protection of Child Rights (NCPCR), the location of the study mentions that all of these children face abuse in schools by their class mates and other students at school and are in constant fear, especially afraid to be in the same profession of prostitution (19).</li>

<li>However, in such situations, where the rights of a child is being infringed, such as the right to education and the children being in isolation because of the society which may forcing these children to  choose the wrong track in life and degrades their mental and physical health. And in circumstances, where such children are misinterpreted as trafficked by the authorities under Immoral Traffic (prevention) Act, 1956, the recommendation (x) act as a shield and help all those mothers to raise their children without hindrance.</li>

<li>Fair criticism</li>

<li>All inclusive, the recommendation given in this present case does not completely solve the issues of Prostitution and sex trade. The recommendations are silent on various factors such as compelling sexual workers by the brothel keepers to give sexual services and the lack of medical benefits which should be mandatory for all the sex workers to maintain their well-being.</li>

<li>Moreover, this case clearly highlights the current situation of sex workers but the recommendations are not satisfactorily framed as to address all the problems directly, the recommendations are off the track and do not serve the problems.</li>
</ul>

<ul>
<li>CONCLUSION</li>
</ul>

The profession of sex work is no new to India, but it is followed since pre-British era. The irony is that till date no such law has come into existence in order to govern their rights and protect them from exploitation and hence due to the absence of law, the rights of these people remains unrecognised and they are mistreated like commodities.

In fact, India consists of Asia&#8217;s largest red-light area situated in Kolkata (20). There are many countries in the world such as Germany (21), New Zealand (22), etc. where prostitutes are and business of prostitution is recognised and is fairly regulated. Despite prostitution in India being a class of people who are in devastating position and are exploited in all the possible areas, there is no any law till yet. It has become the need of the hour to frame a law which covers all the areas with regulations and protections. The central by following the principles of good governance and considering all of these recommendations and all covering all the aspects which are untouched&nbsp; in this judgement shall frame an Act to govern the business of Prostitution and protect the sex workers.

END NOTES:

<ol>
<li>Budhadev Karmaskar vs State Of West Bengal on 14 February, 2011, Indian Kanoon &#8211; Search engine for Indian Law, <a href="https://indiankanoon.org/doc/1302025/" target="_blank" rel="noreferrer noopener">https://indiankanoon.org/doc/1302025/</a>.</li>
</ol>

<ul>
<li>Budhadev Karmaskar vs The State of West Bengal on 19 May, 2022, Indian Kanoon &#8211; Search engine for Indian Law, https://indiankanoon.org/doc/145721634/.</li>
</ul>

<ul>
<li>Raghuvir Singh &amp; Others &#8230; vs State Of Uttarakhand And Another on 21 October, 2019, Indian Kanoon &#8211; Search engine for Indian Law, <a href="https://indiankanoon.org/doc/32258244/" target="_blank" rel="noreferrer noopener">https://indiankanoon.org/doc/32258244/</a>.</li>
</ul>

<ul>
<li>Budhadev Karmaskar vs The State Of West Bengal on 4 May, 2023, Indian Kanoon &#8211; Search engine for Indian Law, https://indiankanoon.org/doc/22048487/.</li>
</ul>

<ul>
<li>Section 164 in The Code of Criminal Procedure, 1973, Indian Kanoon &#8211; Search engine for Indian Law, <a href="https://indiankanoon.org/doc/497457/" target="_blank" rel="noreferrer noopener">https://indiankanoon.org/doc/497457/</a>.</li>
</ul>

<ul>
<li>Budhadev Karmaskar vs The State Of West Bengal on 19 May, 2022, Indian Kanoon &#8211; Search engine for Indian Law, <a href="https://indiankanoon.org/doc/145721634/" target="_blank" rel="noreferrer noopener">https://indiankanoon.org/doc/145721634/</a>.</li>
</ul>

<ul>
<li>Uddeshya Tiwari, Rights of Indian sex workers- Analyzing Budhadev Karmaskar v State of WB, Lexpeeps (Sept. 6, 2022), <a href="https://lexpeeps.in/rights-of-indian-sex-workers-analyzing-budhadev-karmaskar-v-state-of-wb/" target="_blank" rel="noreferrer noopener">https://lexpeeps.in/rights-of-indian-sex-workers-analyzing-budhadev-karmaskar-v-state-of-wb/</a>.</li>
</ul>

<ul>
<li>INDIA CONST. art. 142.</li>
</ul>

<ul>
<li>Shingal, Ankur, THE DEVADASI SYSTEM: Temple Prostitution in India, UCLA Women&#8217;s Law Journal, 22(1), (2015), https://escholarship.org/content/qt37z853br/qt37z853br.pdf.</li>
</ul>

<ol>
<li>Tuka Ram And Anr vs State Of Maharashtra, 1979 AIR 185.</li>
</ol>

<ol>
<li>THE TIMES OF INDIA, https://timesofindia.indiatimes.com/topic/raided-a-brothel/news.</li>
</ol>

<ol>
<li>Lokendra Singh v State of Madhya Pradesh, (1996) 2 SCC 648.</li>
</ol>

<ol>
<li>INDIA CONST. art. 21.</li>
</ol>

<ol>
<li>South West DLSA, Workshop on sensitize sex workers of their legal rights vis-a-vis the legality of sex work, South West Delhi Legal Service Authority (Jun. 26, 2022), https://dslsa.org/swd/?p=7770.</li>
</ol>

<ol>
<li>PRESS COUNCIL OF INDIA CENTRAL STATE AUTHORITY, https://www.presscouncil.nic.in/OurMission.aspx#:~:text=The%20mission%20of%20Press%20Council,agencies%20and%20journalists%20the%20maintenance.</li>
</ol>

<ol>
<li>Indian Penal Code, 1860, § 228-A, No.45, Acts of Parliament, 1860 (India).</li>
</ol>

<ol>
<li>Indian Penal Code, 1860, § 376, No.45, Acts of Parliament, 1860 (India).</li>
</ol>

<ol>
<li>Indian Penal Code, 1860, § 354C, No. 45, Acts of Parliament, 1860 (India).</li>
</ol>

<ol>
<li>INDIA TODAY, https://www.indiatoday.in/education-today/news/story/children-of-sex-workers-face-abuse-and-discrimination-in-school-become-isolated-study-by-child-rights-body-1439319-2019-01-25.</li>
</ol>

<ul>
<li>Rijula Das, Exploring the stories of Asia’s Largest red-light district, THE IRISH TIMES (Sep. 30, 2022), https://www.irishtimes.com/culture/books/2022/09/30/exploring-the-stories-of-asias-largest-red-light-district/#:~:text=Asia&#8217;s%20largest%20red%2Dlight%20district%20is%20in%20Kolkata%2C%20India.,oldest%20neighbourhoods%20in%20north%20Kolkata.</li>
</ul>

<ul>
<li>The Prostitution Protection Act, 2016 (GER).</li>
</ul>

<ul>
<li>The Prostitution Reform Act, 2003 (NZ).</li>
</ul>

Authors:

Hetkumar Joshi

4th Year, BBA-LL.B

Navrachana University

Disha Shivnani

4th Year, BBA-LL.B

Navrachana University
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";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";s:5:"child";a:5:{s:0:"";a:7:{s:5:"title";a:1:{i:0;a:5:{s:4:"data";s:36:"Manohar Lal Sharma v. Union of India";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"link";a:1:{i:0;a:5:{s:4:"data";s:142:"https://theamikusqriae.com/manohar-lal-sharma-v-union-of-india/?utm_source=rss&utm_medium=rss&utm_campaign=manohar-lal-sharma-v-union-of-india";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:71:"https://theamikusqriae.com/manohar-lal-sharma-v-union-of-india/#respond";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:7:"pubDate";a:1:{i:0;a:5:{s:4:"data";s:31:"Thu, 20 Jun 2024 05:24:45 +0000";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"category";a:2:{i:0;a:5:{s:4:"data";s:12:"Case Comment";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:1;a:5:{s:4:"data";s:12:"Publications";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"guid";a:1:{i:0;a:5:{s:4:"data";s:34:"https://theamikusqriae.com/?p=8216";s:7:"attribs";a:1:{s:0:"";a:1:{s:11:"isPermaLink";s:5:"false";}}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:11:"description";a:1:{i:0;a:5:{s:4:"data";s:831:"The Pegasus spyware case, also known as Manohar Lal Sharma v. Union of India[1], concerns claims of illegal surveillance by Indian government agencies employing the Israeli business NSO Group&#8217;s[2] Pegasus spyware. The following are the case&#8217;s salient facts: A group of foreign media outlets, including “The Wire, revealed in July 2021 that Pegasus malware had &#8230;
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The Pegasus spyware case, also known as Manohar Lal Sharma v. Union of India<a href="#_ftn1" id="_ftnref1">[1]</a>, concerns claims of illegal surveillance by Indian government agencies employing the Israeli business NSO Group&#8217;s<a href="#_ftn2" id="_ftnref2">[2]</a> Pegasus spyware. The following are the case&#8217;s salient facts:

A group of foreign media outlets, including “The Wire, revealed in July 2021 that Pegasus malware had been used by a number of nations, notably the Indian government, to spy on specific people.”<a href="#_ftn3" id="_ftnref3">[3]</a> According to reports, the spyware can infect cellphones and other devices, giving the attacker access to private information like emails, texts, and images.Following the disclosures, the Indian Supreme Court received multiple petitions contesting the government entities&#8217; purported use of Pegasus spyware. Manohar Lal Sharma was one of the petitioners, requesting an impartial inquiry into the situation and holding the government accountable. A three-person committee was established by the Supreme Court to look into the claims of monitoring after it granted suo motu cognizance of the case. The committee was assigned the responsibility of investigating the type of surveillance conducted, the legitimacy of the government&#8217;s actions, and the effects on the persons&#8217; rights that were impacted.After conducting its investigation, the committee reported its findings to the Supreme Court. Nevertheless, the report&#8217;s contents were kept secret, which prompted criticism of the process&#8217;s lack of transparency from various places.After conducting its investigation, the committee reported its findings to the Supreme Court. Nevertheless, the report&#8217;s contents were kept secret, which prompted criticism of the process&#8217;s lack of transparency from various places.

Issues Raised

Here are the primary issues of the case:

<ul>
<li>Right to PrivacyThe case brought up important issues regarding the Indian Constitution&#8217;s “Article 21”<a id="_ftnref4" href="#_ftn4">[4]</a>right to privacy. Serious concerns about the breach of this fundamental right are raised by the use of spyware like Pegasus to monitor people&#8217;s private messages and activities without their consent.</li>

<li>Legality of monitoring: Another issue raised in this case was the legitimacy of government use of spyware for monitoring. It brought to light questions about the legality of government agencies&#8217; surveillance practices and the acceptable range of such practices.</li>

<li>The absence of accountability and openness in the purported surveillance actions in the case was another significant problem. The petitioners contended that there were worries about power abuse and rights violations because the government had not given enough information about the monitoring operations.</li>

<li>Consequences for “Freedom of Speech and Expression”<a id="_ftnref5" href="#_ftn5">[5]</a>: The monitoring of journalists, activists, and political rivals by surveillance technologies has sparked worries about how this may affect people&#8217;s right to free speech and expression. The case brought to light the potential chilling effect that such surveillance could have on people&#8217;s freedom of speech and capacity to express opposing opinions.</li>

<li>The case demonstrated the importance of strict regulation of surveillance technology in order to guard against abuse and safeguard people&#8217;s rights. It called into question whether the rules and procedures now in place to control the use of spyware and other monitoring tools are sufficient.</li>
</ul>

Contention

According to the petitioners, the use of Pegasus spyware to target specific people violated their basic right to privacy, which is protected by Article 21 of the Indian Constitution. They argued that in order to accomplish a lawful state goal, surveillance operations must be carried out in a way that respects people&#8217;s right to privacy and is both necessary and reasonable.

It was argued that there was no legitimate reason or authority for the purported Pegasus spyware monitoring. The petitioners contended that any government monitoring must be legally permitted and carried out in compliance with the rules set forth by the law.

The petitioners expressed worries about possible power abuse by government organizations utilizing spyware for spying. They contended that people&#8217;s rights and liberties would be violated if such surveillance was used to target people based on their political opinions, social connections, or other personal traits. The petitioners stressed the importance of openness and accountability in relation to government monitoring operations. They contended that in addition to being held responsible for any rights abuses, the government ought to be forced to provide details regarding the extent and character of its monitoring activities.

The petitioners also emphasized the potential chilling effect spyware-based surveillance could have on the right to free speech and expression. They contended that people may be discouraged from speaking out against the status quo or participating in appropriate activities if they believe their communications are being watched.

Rationale

The Indian Constitution&#8217;s Article 21 guarantees the basic right to privacy, which were the subject of the case. There are grave concerns over the violation of this right when malware such as Pegasus is used to spy on people without their permission. The goal of the case was to hold government organizations accountable for their surveillance operations. The aim of the study was to prove that any form of monitoring has to be lawful, essential, and reasonable in order to accomplish a valid governmental objective. This was essential for stopping the misuse of authority and defending people&#8217;s rights.

The case demonstrated how crucial it is to protect the rule of law when it comes to privacy and monitoring. It stressed that surveillance operations have to be carried out in compliance with the law and established protocols, and that any infractions have to be addressed through the judicial system. The case made clear how important it is for government monitoring programs to be transparent. It underlined that sufficient controls should be in place to prevent the exploitation of surveillance technology and that the government should be open and honest about the extent and character of its monitoring operations.

The goal of the litigation was to defend the right to free speech and expression. It acknowledged that the use of spyware for surveillance could have a chilling impact on people&#8217;s capacity to voice divergent opinions or participate in lawful activities, and it aimed to stop this from happening.

The protection of the right to free speech and expression was the aim of the legal action. It recognized that the use of spyware for monitoring may stifle people&#8217;s ability to express opposing views or take part in legitimate activities, and it sought to prevent this from occurring.

Defects of law

Although significant privacy and surveillance-related issues were addressed in the Manohar Lal Sharma v. Union of India case, certain alleged legal flaws were brought up during the proceedings. The following are some of the main flaws:

Absence of clear Law: One of the primary flaws brought to light was the lack of clear laws regulating the use of Pegasus-style surveillance technologies. Government agency monitoring operations are subject to unclear legal and policy frameworks, which has sparked questions about accountability and possible abuse of this technology. Ambiguity in Current legislation: The case also brought attention to the vagueness in current privacy and surveillance legislation. The petitioners contended that there was uncertainty and possible rights violations as a result of the existing legal framework&#8217;s inability to handle the complex challenges created by surveillance technologies.

Insufficient Safety Measures: The absence of sufficient measures to avert the abuse of surveillance technologies was identified as another flaw. The petitioners contended that there were inadequate safeguards in place to guarantee that monitoring operations were carried out legally and in compliance with fundamental rights. Lack of Transparency: Concerns over the opaque nature of government monitoring programs were also brought up by this case. The petitioners contended that the government ought to be more open about its monitoring practices and give the general public more information regarding the extent and character of these operations.

Failing to Address Emerging Technologies: The case brought to light how outdated regulations are in comparison to new developments in technology. The petitioners contended that emerging surveillance technologies brought special difficulties that the existing judicial systems were ill-equipped to handle.

The Manohar Lal Sharma v. Union of India case exposed legal flaws that emphasised the necessity of comprehensive legislation and strong protections to preserve privacy and stop the improper use of surveillance technology.

Inference

There are various significant conclusions that may be made from the hearings and verdict of the Pegasus spyware case Manohar Lal Sharma v. Union of India. Here are a few important inferences:

<ul>
<li>The case emphasizes the necessity for India to enact stricter privacy legislation to shield citizens from illegal monitoring. The lack of regulations specifically controlling the use of surveillance technologies like as Pegasus emphasizes how crucial it is to pass laws that protect individuals&#8217; right to privacy.</li>

<li>The case emphasizes how crucial accountability and openness are to government monitoring programs. It emphasizes the necessity of precise policies and procedures to guarantee that monitoring operations are carried out legally and do not violate people&#8217;s rights.</li>

<li>The case serves as a reminder of the difficulties that surveillance technology presents, especially when it comes to safeguarding fundamental rights and maintaining privacy. It emphasizes how important it is for legislators and regulators to be up to date with technology developments and pass laws that specifically address the problems that these technologies provide.</li>

<li>The case highlights the judiciary&#8217;s crucial role in defending constitutional rights and keeping the administration responsible. The judiciary&#8217;s dedication to maintaining the rule of law is demonstrated by the Supreme Court&#8217;s decision to establish a committee to look into the claims of monitoring and take suo motu notice of the case.</li>

<li>Concerns concerning how surveillance affects the right to free speech and expression are also brought up by this case. The capacity of people to exercise their rights and take part in democratic discourse may be inhibited by the use of spyware like Pegasus to target journalists, activists, and political rivals.</li>
</ul>

The intricate legal and moral concerns around privacy and monitoring in the digital age are brought to light by the Manohar Lal Sharma v. Union of India case. It emphasizes how crucial it is to strike a careful balance between individual rights and national security needs, as well as how crucial it is to make sure that surveillance operations are carried out in a way that is both legal and open.

<ul>
<li>MANASVI GARG</li>
</ul>

VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES

<a href="#_ftnref1" id="_ftn1">[1]</a> Manohar lal sharma v. Union of India (2021), writ petition (Crl),334

<a id="_ftn2" href="#_ftnref2">[2]</a>Vas panagiotopoulos, Notorious Spyware Maker NSO Group Is Quietly Plotting a Comeback, The Wired, (Jan 24, 2024, 07:00 a.m), <a href="https://www.wired.com/story/nso-group-lobbying-israel-hamas-war/">https://www.wired.com/story/nso-group-lobbying-israel-hamas-war/</a>

<a id="_ftn3" href="#_ftnref3">[3]</a>Siddharth Varadarajan, Revealed: How The Wire and Its Partners Cracked the Pegasus Project and What It Means for India, The Wire, (July 30, 2021),<a href="https://m.thewire.in/article/media/revealed-how-the-wire-partners-cracked-pegasus-project-implications-india.">https://m.thewire.in/article/media/revealed-how-the-wire-partners-cracked-pegasus-project-implications-india.</a>

<a href="#_ftnref4" id="_ftn4">[4]</a>INDIA CONST. art.21.

<a href="#_ftnref5" id="_ftn5">[5]</a>INDIA CONST. art.19. cl.1 (a)

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";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";s:5:"child";a:5:{s:0:"";a:7:{s:5:"title";a:1:{i:0;a:5:{s:4:"data";s:90:"THE COMPREHENSIVE APPROACH TO PROMOTE GENDER JUSTICE FOR MARGINALISED SEGMENTS OF SOCIETY.";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"link";a:1:{i:0;a:5:{s:4:"data";s:250:"https://theamikusqriae.com/the-comprehensive-approach-to-promote-gender-justice-for-marginalised-segments-of-society/?utm_source=rss&utm_medium=rss&utm_campaign=the-comprehensive-approach-to-promote-gender-justice-for-marginalised-segments-of-society";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:125:"https://theamikusqriae.com/the-comprehensive-approach-to-promote-gender-justice-for-marginalised-segments-of-society/#respond";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:7:"pubDate";a:1:{i:0;a:5:{s:4:"data";s:31:"Fri, 07 Jun 2024 18:36:09 +0000";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"category";a:2:{i:0;a:5:{s:4:"data";s:12:"Publications";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:1;a:5:{s:4:"data";s:14:"Research paper";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"guid";a:1:{i:0;a:5:{s:4:"data";s:34:"https://theamikusqriae.com/?p=8206";s:7:"attribs";a:1:{s:0:"";a:1:{s:11:"isPermaLink";s:5:"false";}}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:11:"description";a:1:{i:0;a:5:{s:4:"data";s:1088:"Abstract: &#160;Gender workers, prison staff and people with disabilities face discrimination, harassment, and discrimination. Gender, as well as factors such as class, wealth and disability, exacerbate the problems faced by these groups. Social workers are often punished and discriminated against, have limited economic opportunities, lack legal protections, and face significant risks of abuse. Promoting gender &#8230;
 <a class="" href="https://theamikusqriae.com/the-comprehensive-approach-to-promote-gender-justice-for-marginalised-segments-of-society/"> THE COMPREHENSIVE APPROACH TO PROMOTE GENDER JUSTICE FOR MARGINALISED SEGMENTS OF SOCIETY. Read More »</a>
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";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:32:"http://purl.org/dc/elements/1.1/";a:1:{s:7:"creator";a:1:{i:0;a:5:{s:4:"data";s:13:"Avishek Singh";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:40:"http://purl.org/rss/1.0/modules/content/";a:1:{s:7:"encoded";a:1:{i:0;a:5:{s:4:"data";s:30524:"
Abstract: &nbsp;Gender workers, prison staff and people with disabilities face discrimination, harassment, and discrimination. Gender, as well as factors such as class, wealth and disability, exacerbate the problems faced by these groups. Social workers are often punished and discriminated against, have limited economic opportunities, lack legal protections, and face significant risks of abuse. Promoting gender equality in these oppressed societies requires a multifaceted approach that is adapted to current needs and structural differences. Legal reforms are needed to prevent prostitution, end forced labor and ensure the rights of people with disabilities. Furthermore, addressing gender-based violence in marginalized communities requires a range of prevention and intervention measures, including legislation. Finally, achieving gender equality for marginalized groups requires changes in power relations, resource distribution, and social norms. By breaking down structures of oppression and empowering people, we can create a society where everyone, no matter who or what they are, has equal rights, dignity and opportunity. This article explores the various challenges faced by minority groups in achieving gender equality. Furthermore, the document supports structural and political reforms aimed at eliminating practices that foster gender inequality. By promoting economic empowerment, the rule of law and social inclusion, we can create a future where everyone is empowered, regardless of their background or circumstances.

“I raise my voice not so I can shout, but so that those without a voice can be heard. We cannot succeed when half of us are held back.”

―&nbsp;<a href="https://www.womensweb.in/2015/11/named-malala-feminist-review/" target="_blank" rel="noreferrer noopener">Malala Yousafzai</a><a href="#_ftn1" id="_ftnref1">[1]</a>

KEYWORDS: gender justice, marginalized groups, sex workers, bonded labourers, differently-abled persons, intersectionality, discrimination, empowerment

INTRODUCTION:

Promoting gender justice for marginalized communities is crucial in ensuring that everyone has equal access to opportunities and protection from exploitation and violence. This essay will discuss about three marginalized communities: sex workers, bonded laborers, and differently-abled persons, and the importance to address their specific needs. The argumentative outlines will focus on the need for legal protection for sex workers, freeing bonded laborers, and providing equal opportunities for differently abled persons. The counter-argumentative outlines will address the potential expenses of promoting gender justice and the arguments against legalizing sex work and providing accommodations for differently abled persons.

RESEARCH METHODOLOGY:

To comprehensively promote gender justice for marginalized segments of society, a robust research methodology must encompass several key components. Firstly, an extensive literature review is essential to understand existing frameworks, challenges, and successful interventions in addressing gender inequality within marginalized communities. Secondly, stakeholder analysis involving marginalized groups, NGOs, and government agencies provides insights into diverse perspectives and priorities. Quantitative data collection through surveys and qualitative methods such as interviews and focus groups offers a nuanced understanding of socio-economic disparities and lived experiences of discrimination. Intersectional analysis is crucial to recognize how various aspects of identity intersect with gender to compound marginalization. Policy analysis helps identify gaps and opportunities within existing legal frameworks. Case studies of successful initiatives inform effective strategies, while community engagement ensures participatory and culturally sensitive research practices. Rigorous data analysis generates evidence-based policy recommendations, which are disseminated to policymakers and stakeholders for advocacy and implementation. Continuous monitoring and evaluation ensure the sustainability and impact of interventions over time. Through this comprehensive approach, research can serve as a catalyst for meaningful change, advancing gender justice and empowerment for marginalized communities.

Sex workers should have access to legal protection.

Sex workers face violence and exploitation in their day to day life , which needs to be addressed through legal protection. Legal protection can ensure that sex workers are not exploited and not subjected to violence. Providing legal protection to sex workers can also ensure that they have access to healthcare and other necessary amenities. This can help reduce the spread of sexually transmitted infections and other health concerns. Sex workers should have the right to make their own choices without fear of reprisal or violence.

Bonded laborers should be freed from their bondage.

Bonded laborers are often subject to violence and exploitation. They often work in dangerous conditions and are not paid fairly. Bonded laborers may be forced to work in inhumane conditions for years without any hope of escape. It is crucial to free these laborers from their bondage and ensure that they have access to fair wages and safe working conditions. This can be done through stronger labor laws and better enforcement mechanisms. Bonded laborers should have the right to live free from exploitation and violence.

Differently abled persons should have access to equal opportunities.

Differently abled persons often face discrimination and barriers to education and employment. They also face barriers to accessing public spaces. It is crucial to provide accommodations to differently abled persons to ensure that they have access to equal opportunities. This can be done through stronger disability rights laws and better enforcement mechanisms. Differently-abled persons should have the right to access public spaces and participate in all aspects of society without discrimination.

The promotion of gender justice can be expensive.

Providing legal protection to sex workers, freeing bonded laborers, and providing equal opportunities for differently-abled persons can be expensive. However, the cost of not providing these protections can be much higher. Exploitation and violence against marginalized communities can have significant social and economic costs but it is crucial to invest in promoting gender justice to ensure that everyone has access to opportunities and protection from exploitation and violence.

Some may argue that sex work is inherently exploitative and should not be legalized.

Legalizing sex work may encourage trafficking and may not eliminate violence or exploitation against sex workers. However, criminalizing sex work does not eliminate these issues either. Legalizing sex work can help ensure that sex workers have access to legal protection and necessary services. It can also help to reduce the stigma associated with sex work and allow for better regulation to prevent trafficking and other forms of exploitation.

Some may argue that differently abled persons are not capable of participating in certain activities.

Differently abled persons may not be able to perform certain jobs or access certain public spaces. However, providing accommodations and accessibility can help ensure that differently abled persons have equal opportunities. It is crucial to recognize that differently abled persons have unique skills and abilities, and providing accommodations can help them participate fully in society. The cost of providing accommodations is outweighed by the benefits of promoting inclusion and equal opportunities for all.

Promoting gender justice for marginalized communities is crucial in ensuring that everyone has equal access to opportunities and protection from exploitation and violence. Legal protection for sex workers, freeing bonded laborers, and providing equal opportunities for differently abled persons are crucial steps towards achieving gender justice. While there may be costs associated with promoting gender justice, the cost of not doing so is much higher. It is crucial to invest in promoting gender justice to ensure a more just and equal society for all.

The idea of gender justice advocates for equal opportunities and rights for people of all genders. In terms of rights, duties, and opportunities, it aims to achieve equality between men and women as well as between different gender identities. It&#8217;s a comprehensive strategy that tackles the underlying causes of gender inequality and guarantees that women and other gender minorities can fully exercise their human rights.

In nations around the world, gender justice is still a major issue, particularly for marginalized groups including sex workers, bonded laborers, people with disabilities, and others. The implications and challenges for the marginalized are explored in this paper. It analyzes the intersectionality of gender, class, caste, and ability and proposes strategies for promoting gender justice and social inclusion. This paper advocates for a holistic approach towards addressing the complex issues faced by marginalized groups, through examining legal frameworks, social policies, and grassroots initiatives. Society can foster greater gender justice and inclusivity for all by prioritizing empowerment, protection, and representation.

Gender justice is extremely important for underprivileged groups since it affects many facets of social, political, and economic well-being. Gender, socioeconomic class, caste, ethnicity, ability, and other factors are common grounds for interlocking kinds of discrimination and exclusion experienced by marginalized groups, such as women, sex workers, bonded laborers, people with disabilities, and others. The following are some main justifications for why oppressed groups need gender justice:

<ol>
<li>Equal Rights and Opportunities: Gender justice assures that marginalized people have equal rights and opportunities, regardless of gender identity, sexual orientation, or socioeconomic status. It fosters equity in access to education, employment, healthcare, and other important services, allowing underprivileged groups to fully participate in society and realize their potential.</li>

<li>Protection against Discrimination and Violence: Discrimination, gender-based violence, and exploitation disproportionately affect marginalized groups, particularly women and gender non-conforming individuals. Gender justice requires developing legislative frameworks and social norms to protect marginalized people from discrimination, harassment, and violence inside their communities and throughout society.</li>

<li>Empowerment and Agency: Gender justice strengthens oppressed groups by acknowledging and magnifying their agency in decision-making. It entails creating leadership possibilities, offering access to education and skill training, and assisting grassroots activities that enable underprivileged people to advocate for their rights and interests.</li>

<li>Economic Empowerment: Gender justice is critical in creating economic empowerment and livelihood possibilities for marginalized populations such as women, sex workers, and bonded labourers. It entails tackling structural disparities in the labor market, ensuring fair salaries and working conditions, and providing disadvantaged people with access to credit, land, and other productive resources to help them better their economic situation and well-being.</li>
</ol>

Historical Background

India&#8217;s gender roles and norms have been a complex blend of tradition and modernity for centuries. Women were traditionally confined to the home, taking care of children and household chores, while men held power and provided family income. This social structure was further reinforced by customs like dowry and a preference for sons. However, in the early twentieth century, women&#8217;s political consciousness began to take shape, with women&#8217;s suffrage movements and the Indian independence movement leading to a surge in women&#8217;s activism. Economic liberalization and urbanization further accelerated this process, opening up new opportunities for women to participate in education sector and employment sector of the country. India&#8217;s legal system has played a crucial role in this process, decriminalizing discriminatory practices like Sati and female infant mortality. However , issues such as marital rape and slow judicial processes leave women vulnerable. India&#8217;s progress towards gender equality is not yet complete, with women often earning significantly less than men for the same work, leading to a gender pay gap and this escalates the wedge between the two genders in our country. Gender-based violence, domestic abuse, dowry-related crimes, and sexual harassment persist in India, resulting in female genital mutilation and neglect. To move towards a more equitable future, India needs to continue efforts in educating the public and focusing on financial empowerment, financial inclusion, and training for women. The evolution of gender roles and standards in India is a tale of perseverance, struggle, and steady progress, reflecting the fight for women&#8217;s rightful place in society. With continued social, legal, and economic reforms, India can move towards a future where both men and women can thrive and reach their full potential.

REVIEW OF LITERATURE

Legal Policy Interventions and Legislative Reform

Policy interventions and legislative reform are crucial mechanisms for promoting gender justice and addressing systemic inequalities. Governments and international organizations have a responsibility to enact laws and policies that protect the rights of marginalized groups and dismantle institutional discrimination. Examples of effective policy interventions include:

<ol>
<li>Anti-discrimination laws: Legislation prohibiting discrimination on the basis of gender identity, sexual orientation, race, ethnicity, disability, and other protected characteristics is essential for ensuring equal treatment and opportunities for all individuals.</li>

<li>Affirmative action policies: Measures such as quotas and targeted recruitment initiatives can help address historical inequities and increase representation of marginalized groups in education, employment, and political leadership positions.</li>

<li>Gender-responsive budgeting: Governments can integrate gender considerations into budgetary processes to ensure that public resources are allocated in a way that promotes gender equality and addresses the specific needs of marginalized communities.</li>

<li>Access to essential services: Policies aimed at expanding access to education, healthcare, housing, and social welfare programs can help alleviate the disproportionate impact of poverty.</li>
</ol>

The pursuit of gender justice is a delicate dance between legal advancements and the stubborn grip of social norms in India. Equality before the law and sex-based discrimination are guaranteed by the Indian Constitution. Affirmative action for women in education and government positions is envisioned in articles like 15(3)<a href="#_ftn2" id="_ftnref2">[2]</a> and 16(1)<a href="#_ftn3" id="_ftnref3">[3]</a>. <a>The Dowry Prohibition Act of 1961</a><a href="#_ftn4" id="_ftnref4">[4]</a> and the <a>Sexual Harassment of Women at Work Act of 2013</a><a href="#_ftn5" id="_ftnref5">[5]</a> are landmark pieces of legislation that address specific issues confronting women, providing legal protections against exploitation and neglect. Effectiveness of these laws remains a concern.

The social landscape offers a complex counterpoint. A deeply entrenched patriarchal system continues to impact daily life. Faith systems confine women to domestic duties, limiting educational and professional prospects.&nbsp; In many locales, the vehement preference for sons persists, resulting in practices like genital mutilation and apathy.

Despite these obstacles, societal structures also engender optimism. Women&#8217;s rights groups and activists tirelessly champion grassroots movements, educate the public about gender-based violence, and empower women to assert their rights. The critical issues of female feticide and girls&#8217; education are highlighted by campaigns like &#8220;Beti Bachao, Beti Padhao.&#8221;&nbsp; Public discourse and media portrayal have a significant impact on attitudes. Increased coverage of gender-based violence and discussions about women&#8217;s rights can foster a more welcoming environment.

True gender equality demands a comprehensive approach. Legal frameworks are vital, but without robust implementation mechanisms they remain mere promises. Changing ingrained social beliefs through educational initiatives and promoting positive media representations are equally important. Taking care of women financially and encouraging open-minded work environments lay the groundwork for lasting change. Engaging men and boys in conversations about gender equality is important to dismantling patriarchal structures and building a society where all genders can thrive.

The journey towards gender equality in India involves a constant dialogue between law and society. India can move towards a future where both men and women have the opportunity to flourish by bridging the gap between legal frameworks and social realities by bridging the gap between legal frameworks and social realities.

METHOD

Strategies for Promoting Gender Justice

The following are some essential tactics for advancing gender justice:

<ol>
<li>Changing Attitudes: Take sexist beliefs seriously and demolish damaging gender stereotypes. Education campaigns that question conventional gender norms and advance gender equality can accomplish this.</li>
</ol>

<ul>
<li>Strengthening the Voices of Women: Assist women&#8217;s groups by offering materials, instruction, and encouragement to be involved in decision-making. Their capacity to speak up for others and themselves is strengthened by this.</li>
</ul>

<ul>
<li>Education and Opportunity: Guarantee that everyone has equitable access to high-quality education and employment opportunities. This includes laws that close the gender pay gap, offer cheap child care, and support women pursuing careers in STEM.</li>
</ul>

<ul>
<li>Including a gender perspective in all facets of society is known as gender mainstreaming. This entails actively attempting to eliminate current disparities as well as taking into account how policies, programs, and initiatives will affect both men and women.</li>
</ul>

<ul>
<li>Shared Responsibility: Encourage equitable childcare and home chore distribution. This makes handling domestic work more equitable and balanced.</li>
</ul>

<ul>
<li>Bystander Intervention: Educate on how to spot and step in when there is harassment or violence against women. This fosters a culture of victim support and zero tolerance.</li>
</ul>

<ul>
<li>Legislative Advocacy: Encourage gender equality by supporting laws and regulations. Legislation pertaining to equal pay, reproductive rights, and domestic abuse may fall under this category.</li>
</ul>

Support equitable and balanced media representations of women and girls that dispel stereotypes and highlight positive role models.

Data Collection and Analysis: To pinpoint areas in which advancement is required and to monitor advancement over time, gather and evaluate data on gender equality on a regular basis.

These are but a handful of the numerous tactics available for advancing gender justice. We can make the world more fair and just for everyone if we cooperate on both a personal and a systemic level.

Landmark Judgements

<a>Vishakha and Others v. State of Rajasthan (1997)</a><a href="#_ftn6" id="_ftnref6">[6]</a>:

This case, commonly known as the Vishakha case, addressed sexual harassment in the workplace and laid down guidelines to prevent and address sexual harassment. The Supreme Court of India recognized that sexual harassment violates the fundamental rights of women to equality and dignity in the workplace. The judgment provided a framework for employers to ensure a safe working environment for women and established the principle of strict liability for sexual harassment.

<a>National Legal Services Authority (NALSA) v. Union of India (2014)</a><a href="#_ftn7" id="_ftnref7">[7]</a>:

In this landmark case, the Supreme Court recognized the rights of transgender individuals and affirmed their right to self-identify their gender. The court directed the government to recognize transgender persons as a third gender and to provide them with affirmative action measures, including reservations in education and employment. The judgment was a significant step towards promoting gender justice for transgender individuals and challenging discrimination based on gender identity.

<a>Vishal Jeet v. Union of India (1990)</a><a href="#_ftn8" id="_ftnref8">[8]</a>:

In this case, the Supreme Court directed the state governments to identify and rehabilitate all bonded labourers in the country within a specified time frame. The court emphasized the importance of proactive measures to eradicate bonded labour effectively.

<a>Indian Young Lawyers Association v. State of Kerala (2018)</a><a href="#_ftn9" id="_ftnref9">[9]</a>:

In the case &#8220;Indian Young Lawyers Association &amp; Ors. vs. The State of Kerala &amp; Ors.&#8221; (2018), the Supreme Court of India ruled that the ban on women of menstruating age (10-50 years) entering the Sabarimala Temple in Kerala was unconstitutional. The Court held that the practice violated women&#8217;s right to equality, freedom of religion, and the right against discrimination. The 4:1 majority decision emphasized that such exclusionary practices were not essential to religion and infringed on fundamental rights. The verdict was a significant step towards promoting gender equality and ensuring women&#8217;s right to worship.

Jeeja Ghosh &amp; Anr. v. Union of India &amp; Ors. (2016)<a href="#_ftn10" id="_ftnref10">[10]</a>

This case involved discrimination against a person with cerebral palsy who was offloaded from a flight due to her disability. The Supreme Court held that the actions of the airline constituted discrimination and a violation of the rights of the person with disabilities. The court emphasized the need for sensitivity and inclusivity towards persons with disabilities in all sectors.

CONCLUSION AND SUGGESTIONS

Promoting gender justice for marginalized segments of society requires a multifaceted approach that addresses the intersecting forms of oppression they face. By understanding intersectionality, implementing inclusive policies, supporting grassroots movements, and embracing transformative justice approaches, societies can work towards creating a more equitable and inclusive world for all individuals, regardless of their gender identity or background. It is imperative that stakeholders across sectors collaborate and prioritize the voices and experiences of marginalized groups in the pursuit of gender justice and social transformation. Together, we can build a future where all individuals are treated with dignity, respect, and equality, regardless of their gender identity or expression. Promoting gender justice for marginalized groups of society necessitates a concerted effort across various domains. Firstly, there&#8217;s a crucial need for legal and policy reforms that safeguard the rights of marginalized genders, addressing intersectional discrimination and ensuring equitable access to justice. Education and employment opportunities must be made more accessible, particularly for marginalized women, transgender individuals, and minority communities, through initiatives like vocational training and affirmative action programs. Healthcare services should be tailored to the specific needs of marginalized genders, encompassing reproductive rights, mental health support, and combating HIV/AIDS. Gender-based violence must be confronted head-on, with comprehensive support services and prevention measures tailored to the unique challenges faced by marginalized groups. Community empowerment initiatives, driven by the communities themselves, can foster leadership, advocacy, and resilience. Media representation and awareness campaigns are vital in challenging stereotypes and fostering empathy. An intersectional approach is essential, recognizing and addressing the overlapping forms of discrimination faced by marginalized genders. Robust data collection and research are indispensable for evidence-based policymaking and program development. Corporate and institutional accountability measures are needed to ensure diversity, equity, and inclusion in all spheres of society. Finally, promoting political participation and representation for marginalized genders is crucial for amplifying their voices and advancing gender justice agendas at all levels of governance. Through these multifaceted efforts, we can work towards a more just and equitable society where every individual, regardless of gender or identity, has the opportunity to thrive.

References:

<a href="https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf">https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf</a>

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</div></figure>

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<blockquote class="wp-embedded-content" data-secret="8G9Otg3JcH"><a href="https://www.policycircle.org/society/supreme-court-sex-work-legal/">Explainer: Supreme Court ruling recognises sex work as a legal profession</a></blockquote><iframe class="wp-embedded-content" sandbox="allow-scripts" security="restricted" title="&#8220;Explainer: Supreme Court ruling recognises sex work as a legal profession&#8221; &#8212; Policy Circle" src="https://www.policycircle.org/society/supreme-court-sex-work-legal/embed/#?secret=WPEaGgfP9q#?secret=8G9Otg3JcH" data-secret="8G9Otg3JcH" width="600" height="338" frameborder="0" marginwidth="0" marginheight="0" scrolling="no"></iframe>
</div></figure>

<a href="https://nhrc.nic.in/sites/default/files/Women%E2%80%99s%20Rights%20in%20India%20complete_compressed.pdf">https://nhrc.nic.in/sites/default/files/Women%E2%80%99s%20Rights%20in%20India%20complete_compressed.pdf</a>

<a href="https://labour.gov.in/sites/default/files/thebondedlaboursystemabolitionact1976.pdf">https://labour.gov.in/sites/default/files/thebondedlaboursystemabolitionact1976.pdf</a>

<a href="https://www.barandbench.com/columns/evolution-of-disability-rights-in-india-tracing-how-the-path-was-paved-and-breaking-the-barriers-that-remain">https://www.barandbench.com/columns/evolution-of-disability-rights-in-india-tracing-how-the-path-was-paved-and-breaking-the-barriers-that-remain</a>

SHREYOSEE AICH

AMITY UNIVERSITY, NOIDA

<a href="#_ftnref1" id="_ftn1">[1]</a> HTI, traffickinginstitute.org/incontext-malala-yousafzai/ (06th June 2024)

<a href="#_ftnref2" id="_ftn2">[2]</a> India Consti.art15(3).

<a href="#_ftnref3" id="_ftn3">[3]</a> India Consti.art16(1).

<a href="#_ftnref4" id="_ftn4">[4]</a> The Dowry Prohibition Act,1961 No. 10, Acts of Parliament, 1961 (India).

<a href="#_ftnref5" id="_ftn5">[5]</a> Sexual Harassment of Women at Work Act,2013 No.30, Acts of Parliament,2013 (India).

<a href="#_ftnref6" id="_ftn6">[6]</a> Vishakha and Others v. State of Rajasthan AIR 1997 SC 3011

<a href="#_ftnref7" id="_ftn7">[7]</a> National Legal Services Authority (NALSA) v. Union of India AIR 2014 SC 1863

<a href="#_ftnref8" id="_ftn8">[8]</a> Vishal Jeet v. Union of India AIR 1990 SC 1412

<a href="#_ftnref9" id="_ftn9">[9]</a> Indian Young Lawyers Association v. State of Kerala AIR 2019 SCC 1

<a href="#_ftnref10" id="_ftn10">[10]</a> Jeeja Ghosh &amp; Anr. v. Union of India &amp; Ors. AIR 2016 SCC 761
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INTRODUCTION:

In the significant case of Dinesh Gupta vs. The State of Uttar Pradesh, the Hon’ble Supreme Court delivered its judgment with considerable surprise upon discovering several crucial facts that had previously been concealed from both itself and the lower courts. This case centred on the non-repayment of a large loan, amounting to crores, provided by the complainant to the accused parties.

The Supreme Court condemned the unethical behaviour of litigants who mislead the court with baseless facts and claims, asserting that such individuals should face stringent penalties and conditions to deter such conduct. The judgment brought attention to a vital issue within the legal system: the imperative to thoroughly investigate litigations founded on falsehoods, including the hiding of facts and forum shopping.

This case stands as a warning and a call to action, advocating for the meticulous examination of litigations to ensure they are not rooted in deception. It emphasizes the need for courts to take a strong stance against those who seek to exploit the judicial process for personal gain. By doing so, the legal system can preserve its integrity, prevent the misuse of judicial resources, and ensure that justice is delivered based on truth and fairness.

FACTUAL MATRIX:

<ol>
<li>Karan Gambhir, the proprietor of M/s D.D. Global Capital Pvt. Ltd. (hereinafter referred to as &#8220;the Company&#8221;), is the complainant in FIR No. 4, which was lodged against Sushil Gupta, Rajesh Gupta, Dinesh Gupta, Baljeet Singh, and others. Three private limited companies, namely BDR, Gulab Buildtech, and Verma Buildtech, were also implicated as accused. The individuals Sushil Gupta, Rajesh Gupta, and Dinesh Gupta are identified as the promoters of these companies.</li>

<li>Only two of the accused, Dinesh Gupta and Rajesh Gupta, approached the High Court to seek the quashing of the summoning order and the FIR. During the hearing, no indication was provided that any other accused had pending matters before either the Supreme Court or the High Court.</li>

<li>The complainant alleges that his company was induced to provide short-term loans of ₹5,16,00,000 to Gulab Buildtech and ₹11,29,50,000 to Verma Buildtech. These loans were later converted into debt equity under the pretext of promising high returns from the real estate business.</li>

<li>The shares were allegedly allotted at an exorbitant price, resulting in the complainant&#8217;s company acquiring a 21% shareholding in Verma Buildtech and a 4.53% shareholding in Gulab Buildtech. A share pledge agreement was purportedly forged, suggesting it had been executed in favor of Sushil Gupta, one of the accused (who is not a party to the present appeal). Additionally, a scheme of amalgamation was devised by Gulab Buildtech and Verma Buildtech to merge these companies with BDR, significantly reducing the complainant&#8217;s shareholding percentage. The complainant asserts that no notice of the proposed amalgamation was served on the company, and the amalgamation was approved by the Delhi High Court. Furthermore, the share certificates were allegedly never physically delivered to the complainant.</li>

<li>The complainant further contends that when he requested the return of the loan with interest, the accused initially sought additional time, citing a downturn in the real estate market. Subsequently, the accused began ignoring the complainant&#8217;s requests. This prompted the complainant to seek legal recourse against the accused, requesting the registration of a case for cheating and forgery. The complaint was filed with the address listed as &#8220;C/o A &amp; A Earth Movers, D-9, Sector-2, Noida Sector-20, Gautam Budh Nagar, U.P.&#8221;</li>

<li>Following an investigation, the police determined that a case was substantiated against the accused under Sections 420 (Cheating), 467 (Forgery of valuable security), and 120-B (Criminal Conspiracy) of the Indian Penal Code (IPC). A charge sheet was subsequently filed on December 29, 2020. The Chief Judicial Magistrate of Gautam Budh Nagar, through an order dated February 15, 2021, took cognizance of the matter and issued summons to the accused.</li>

<li>The appellants then filed petitions under Section 482 of the Criminal Procedure Code (Cr.P.C.) before the High Court, seeking to quash both the FIR and the summoning order dated February 15, 2021. These petitions were dismissed by a composite order of the High Court. Consequently, the appellants have challenged this decision in the present appeals.</li>

<li>The present appeals highlight complex issues related to financial transactions, corporate governance, and judicial processes in handling allegations of fraud and conspiracy within the corporate sector. The allegations against the accused involve significant amounts of money and claims of deceit and forgery, which have far-reaching implications for the stakeholders involved. The outcome of these appeals will likely set a precedent for how similar cases are adjudicated, emphasizing the importance of transparency and due diligence in corporate financial dealings and the judicial system&#8217;s role in addressing corporate fraud and maintaining legal and ethical standards in business practices.</li>
</ol>

ISSUES RAISED:

<ol>
<li>Is there a need for a review of the decision made by the Hon’ble High Court and for the FIR to be nullified?</li>

<li>Should civil proceedings be initiated instead of criminal proceedings in this matter?</li>

<li>Is it appropriate to uphold the decision rendered by the Hon’ble High Court?</li>
</ol>

CONTENTIONS OF THE APPELLANTS:

<ol>
<li>Mr. Kapil Sibal, Mr. Nakul Dewan, and Ms. Anjana Prakash, distinguished senior counsel for the appellants, contended that the complainant, who is the owner of the company, invested ₹5,16,00,000 in Gulab Buildtech and ₹11,29,50,000 in Verma Buildtech by acquiring equity shares. They highlighted that these investments were preceded by resolutions from the company&#8217;s Board of Directors explicitly approving the transactions. In a Board meeting on March 25, 2011, a resolution was passed authorizing the investment of ₹11,29,50,000 in Verma Buildtech&#8217;s equity shares. Similarly, on August 26, 2011, a resolution was passed approving the investment of ₹5,16,00,000 in Gulab Buildtech&#8217;s equity shares. Consequently, the complainant’s claim that these amounts were short-term loans contradicts the company’s records, which indicate these were intentional investment decisions.</li>

<li>In 2012, when the petition was filed seeking the amalgamation of Gulab Buildtech and Verma Buildtech with BDR, the Delhi High Court issued notice to all shareholders of the two companies on 09.07.2012 as per requirements. No objections were raised by the complainant or the company at that stage. On 20.02.2013, the scheme of amalgamation was approved by the Delhi High Court, pursuant to which the company became entitled to 3,74,280 shares of BDR. On 08.03.2013, Gulab Buildtech and Verma Buildtech requested the complainant to surrender the original share certificates to facilitate the issuance of new certificates.</li>

<li>Nearly one year after the amalgamation, on 31.01.2014, DD Global Capital Limited, the company of the complainant, filed an application before the Delhi High Court seeking the recall of the order of amalgamation, asserting that it was issued without notice to the company. The application was dismissed by the High Court on 15.03.2016, and the order attained finality as the company did not further challenge it. In those proceedings, a letter dated 08.10.2014, purportedly written by Sushil Gupta, one of the accused, claiming that the shares of the company with Verma Buildtech were pledged to him, was also submitted to the High Court.</li>

<li>More than two years after the dismissal of the company&#8217;s application by the Delhi High Court, the present complaint was filed with the police in Gautam Budh Nagar, based on which the FIR in question was registered on 29.07.2018.</li>

<li>The appellants argue that a purely civil dispute involving financial transactions between corporations is being misrepresented as a criminal case. Despite the fact that the company has no connection to Gautam Budh Nagar and all transactions occurred in New Delhi between New Delhi-based parties, the complaint was filed in Gautam Budh Nagar. Even the address provided by the complainant in the complaint, &#8216;C/o A &amp; A Earth Movers, D-9, Sector-2, Noida Sector-20, Gautam Budh Nagar, U.P.,&#8217; does not belong to the complainant or his company. These circumstances indicate that the intention was solely to harass the appellants.</li>

<li>In fact, the dispute among the parties has already been referred to arbitration by the Delhi High Court through an order dated 15.05.2019, and the company has already submitted its claim before the sole arbitrator.</li>

<li>These facts clearly demonstrate that no case has been established against the appellants. Furthermore, there are no allegations of document forgery against them. It was a straightforward business transaction, and coercive methods to recover dues should not be tolerated. In support of the appellants’ arguments, reference was made to the judgment of this Court in Randheer Singh v. The State of U.P. &amp; others, highlighting the complete absence of judicial scrutiny while issuing the summoning order, which is entirely non-speaking in nature. Additionally, the High Court failed to consider the arguments raised by the appellants.</li>
</ol>

CONTENTIONS OF THE RESPONDENT:

<ol>
<li>On the opposing stance, Mr. Vikas Singh, a distinguished senior advocate representing the respondent-complainant, argued that a significant short-term loan was extended solely at the insistence of the accused parties.</li>

<li>Subsequently, purported allocations of shares were made but never effectively transferred to the complainant. The entities, namely Gulab Buildtech and Verma Buildtech, to which these shares were purportedly allocated, underwent amalgamation with BDR. However, despite being a shareholder, the complainant allegedly received no notification during this amalgamation process. Consequently, the amalgamation resulted in a substantial reduction in the company&#8217;s shareholding percentage.</li>

<li>Furthermore, emphasis was placed on a correspondence suggesting that the company had pledged its shares to Sushil Gupta, implying the potential involvement of forged documentation. Additionally, reference was made to an order dated 20.02.2013 issued by the High Court in Co. Pet. No. 287 of 2012, highlighting the interconnectedness between the accused individuals.</li>

<li>The financial documents of Gulab Buildtech and Verma Buildtech were also utilized to showcase that the sum advanced by the complainant was classified as &#8216;current liabilities,&#8217; drawing upon Indian Accounting Standards to expound on the definition of &#8216;current liabilities,&#8217; which encompasses short-term loans.</li>

<li>The crux of the argument presented is that the accused parties, allegedly acting in concert, perpetrated a substantial fraud against the complainant by deceitfully promising inflated returns. It is asserted that there are no deficiencies in the High Court&#8217;s judgment, and therefore, the appeals should be dismissed.</li>
</ol>

FINDINGS:

<ol>
<li>The court has reviewed the arguments presented by both parties and examined the evidence on record.</li>

<li>On July 29, 2018, an FIR was registered based on a complaint filed by the second respondent. However, discrepancies were noted regarding the addresses provided, suggesting an attempt to mislead jurisdiction. The complainant provided misleading addresses for D.D. Global and the accused parties, reflecting false jurisdiction.</li>

<li>The falsity of the addresses provided was established during the filing of the charge-sheet. Additionally, it was revealed that the complainant concealed material facts regarding the merger of Gulab Buildtech and Verma Buildtech with BDR.</li>

<li>Despite being aware of the merger, the complainant did not disclose relevant information and filed a complaint with the police years later, alleging criminal behaviour. The court noted a deliberate delay in initiating litigation and observed that the transaction in question was purely commercial in nature.</li>

<li>Furthermore, an arbitrator was appointed to settle the dispute among the parties, indicating the availability of alternative dispute resolution mechanisms.</li>

<li>Given these considerations, the court concluded that the FIR amounted to an abuse of the legal process and ordered its quashing. The respondent, Karan Gambhir, was directed to pay costs of ₹25 lakhs within four weeks, with the amount to be distributed equally to SCBA &amp; SCAORA for the benefit of their members.</li>
</ol>

Date: January 11, 2024

ANALYSIS:

In the present case, Section 482 of the Code of Criminal Procedure (Cr.P.C) was effectively invoked by both the appellants and the court to address the issues at hand. The matter came to light during the final stage of appeal, where it became apparent that the respondent had made frivolous statements and claims with the intention of improperly characterizing a civil matter as a criminal case.

To bolster their arguments, the appellants cited the judgment of the Hon’ble Supreme Court in the case of Randheer Singh vs. The State of Uttar Pradesh &amp; Ors. This legal precedent provided additional support to the appellants&#8217; position.

A pivotal moment in the case occurred when it was discovered that the complainant had provided incomplete addresses for the accused individuals, Rajesh Gupta and Dinesh Gupta, falsely indicating them as residents of Sector 20, Gautam Budh Nagar, Uttar Pradesh. Similar inaccuracies were found in the case of Verma Buildtech and Gulab Buildtech. This deliberate manipulation of addresses was indicative of the respondent&#8217;s attempt to fabricate jurisdiction where none existed.

This revelation underscored the respondent&#8217;s ill-intentioned efforts to misrepresent the nature of the case, transforming what should have been a civil proceeding into a criminal matter. Such actions not only undermined the integrity of the legal process but also reflected a blatant abuse of legal mechanisms for personal gain.

CONCLUSION:

In the case of Dinesh Gupta vs. The State of Uttar Pradesh, presided over by the distinguished bench comprising Justice Vikram Nath and Justice Rajesh Bindal, renowned for their bold and principled judgments, a precedent of judicial integrity was set. Notable among their decisions is the case of Kusha Duruka vs. The State of Odisha, where the bench, in a display of unwavering commitment to justice, levied a fine of Rs. 10,000 on a litigant for attempting to deceive the court and disrupt the administration of justice, ultimately leading to the dismissal of the case.

In examining the matter at hand, it becomes evident that the inappropriate invocation of jurisdiction merely scratches the surface of a deeper issue. The crux of the matter revolves around agreements and financial transactions, squarely falling within the purview of commercial and civil laws. However, the respondent&#8217;s decision to exploit the criminal justice system suggests ulterior motives, potentially driven by personal vendetta rather than a genuine pursuit of justice, as aptly observed by the court.

This exploitation of the Indian criminal justice system not only tarnishes the image of the legal framework but also undermines the foundational principles of natural justice. Nevertheless, the judgment rendered in this case serves to bolster citizens&#8217; trust in the legal system, reaffirming its commitment to the ethos of &#8220;by the people, for the people.&#8221; It underscores the judiciary&#8217;s unwavering dedication to upholding justice and ensures that the integrity of the legal process remains paramount, instilling confidence in the populace and reinforcing the notion that justice prevails for all within the Indian Legal System.

REFERENCES:

<ol start="1">
<li><a href="https://indiankanoon.org/doc/112935934/">https://indiankanoon.org/doc/112935934/</a></li>

<li><a href="https://bnblegal.com/news/supreme-courts-firm-hand-slaps-rs-25-lakhs-penalty-on-complainant-puts-an-end-to-unscrupulous-litigation-tactics/">https://bnblegal.com/news/supreme-courts-firm-hand-slaps-rs-25-lakhs-penalty-on-complainant-puts-an-end-to-unscrupulous-litigation-tactics/</a></li>

<li><a href="https://main.sci.gov.in/supremecourt/2022/7498/7498_2022_8_1501_49396_Judgement_11-Jan-2024.pdf">https://main.sci.gov.in/supremecourt/2022/7498/7498_2022_8_1501_49396_Judgement_11-Jan-2024.pdf</a></li>

<li><a href="https://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=008002270000">https://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=008002270000</a></li>

<li><a href="https://main.sci.gov.in/jonew/cl/2024-01-11/F_J_1_98_49396.pdf">https://main.sci.gov.in/jonew/cl/2024-01-11/F_J_1_98_49396.pdf</a></li>

<li><a href="https://indiankanoon.org/doc/134836139/">https://indiankanoon.org/doc/134836139/</a></li>

<li><a href="https://scourtapp.nic.in/supremecourt/2022/7498/7498_2022_8_1501_49396_Judgement_11-Jan-2024.pdf">7498_2022_8_1501_49396_Judgement_11-Jan-2024.pdf (scourtapp.nic.in)</a></li>

<li><a href="https://mynation.net/judgments/dinesh-gupta-vs-state-of-uttar-pradesh-11-01-2024/">https://mynation.net/judgments/dinesh-gupta-vs-state-of-uttar-pradesh-11-01-2024/</a></li>
</ol>

SHREYOSEE AICH

AMITY UNIVERSITY, NOIDA
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Abstract

This research paper examines the constitutional challenges faced by indigenous communities in India regarding tribal rights and land disputes. Despite constitutional provisions and international commitments, indigenous communities continue to encounter obstacles in protecting their ancestral lands and preserving their cultural heritage. The paper critically analyses the implementation gaps in constitutional provisions, explores the impact of development projects on indigenous lands, and evaluates the legal remedies available to safeguard their rights. Additionally, it delves into India&#8217;s international obligations, particularly under the International Labour Organization (ILO) Convention No. 169, and assesses the implications for indigenous communities. The paper aims to contribute to the ongoing discourse on indigenous rights and recommends valuable insights for policymakers, legal practitioners, and advocates working towards the realization of indigenous rights in India.

Keywords: Tribal rights, land disputes, indigenous communities, constitutional challenges, land ownership, cultural preservation, development projects, legal remedies, International Labour Organization (ILO), customary laws, constitutional safeguards, Scheduled Tribes, Forest Rights Act, Panchayat (Extension to Scheduled Areas) Act (PESA), self-governance, sustainable development.

Introduction

India, a diverse nation with a rich cultural heritage, is home to numerous indigenous communities, commonly referred to as tribal or Adivasi communities. These communities have a deep connection to their ancestral lands, which are not only a source of livelihood but also hold immense cultural, spiritual, and historical significance. However, despite constitutional provisions and international commitments aimed at safeguarding their rights, indigenous communities in India continue to face numerous challenges, particularly in relation to land disputes and the protection of their tribal rights.

The Indian Constitution recognizes the unique status and vulnerabilities of indigenous communities and seeks to protect their rights through various provisions. Article 244(1) of the Constitution empowers the President to declare certain areas as Scheduled Areas, where specific safeguards and protective measures are implemented to ensure the welfare and advancement of tribal communities. Additionally, the Fifth Schedule of the Constitution outlines the administration and governance of these Scheduled Areas, emphasizing the preservation of tribal autonomy and their customary laws.

Despite these constitutional provisions, indigenous communities in India continue to face a multitude of challenges in protecting their land rights. Land disputes, often arising from competing interests between indigenous communities, non-tribal settlers, and state authorities, have become a contentious issue. The lack of clarity in defining tribal lands, inadequate implementation of protective measures, weak land titling systems, and legal ambiguities contribute to the persistence of land disputes and the erosion of tribal rights.

This research paper aims to critically analyse the constitutional challenges faced by indigenous communities in India concerning tribal rights and land disputes. It will examine the gaps in the implementation of constitutional provisions and relevant laws, assess the impact of development projects on indigenous lands, and explore the legal remedies available to protect the rights and interests of indigenous communities.

Furthermore, this paper will delve into the international obligations of India, particularly in light of the International Labour Organization (ILO) Convention No. 169 concerning the rights of indigenous and tribal peoples. It will assess India&#8217;s compliance with these obligations and analyse the implications for indigenous communities in terms of land rights, self-governance, and cultural preservation.

By shedding light on the constitutional challenges faced by indigenous communities in India and analysing the legal framework surrounding their rights and land disputes, this research paper aims to contribute to the ongoing discourse on indigenous rights and promote the development of a more inclusive and equitable legal framework in India. It seeks to provide valuable insights and recommendations for policymakers, legal practitioners, and advocates working towards the realization of indigenous rights in India.

Historical context: The Genesis of Tribal land disputes

The historical context of tribal land disputes in India can be traced back to the colonial era when British rule brought about significant changes in land ownership and administration. The British introduced various land laws and policies that undermined the traditional land rights of tribal communities. The zamindari system, forest laws, and land acquisition for infrastructure development led to the dispossession and marginalization of tribal communities.

Overview of Tribal Communities and their Connection to Land in India

Tribal communities in India are diverse and constitute a significant portion of the population. They have distinct cultural, social, and economic practices deeply intertwined with their connection to land. Land holds immense value for tribal communities, serving as the foundation of their livelihoods, cultural identity, and spiritual beliefs. Tribal communities often practice subsistence agriculture, gather forest produce, and engage in traditional occupations closely tied to the land. Land is not merely an economic resource for survival but also a source of community cohesion, intergenerational knowledge transmission, and cultural heritage preservation.

Prevalence of Land Disputes Faced by Tribal Communities

Land disputes have been pervasive and persistent challenges for tribal communities in India. These disputes arise due to various factors:

a. Encroachment by Non-Tribal Settlers: Many tribal communities live in remote and resource-rich areas, making their lands attractive to non-tribal settlers, commercial interests, and government development projects. Encroachment often leads to displacement, loss of access to resources, and conflicts over land ownership.

b. Forest Conservation and Wildlife Protection Measures: Forest conservation policies, such as the establishment of protected areas and wildlife sanctuaries, have resulted in the relocation of tribal communities from their ancestral lands. These displacements have led to conflicts between conservation objectives and tribal rights.

c. Infrastructure Development: Large-scale infrastructure projects, including mining, dams, and industrialization, often result in the acquisition of tribal lands. Inadequate compensation, lack of consultation, and displacement without proper rehabilitation have fueled land disputes and social unrest.

d. Ambiguous Legal Framework: Ambiguities in land laws, particularly concerning tribal land rights and the recognition of customary practices, contribute to land disputes. Inconsistent interpretation and implementation of laws further exacerbate the problem.

In conclusion, tribal land disputes in India have deep historical roots and continue to pose significant challenges for tribal communities. These disputes impact their socio-economic well-being, cultural identity, and rights over land and resources. Addressing these disputes requires a comprehensive approach, including legal reforms, recognition of customary practices, consultation with tribal communities, and equitable land governance policies that prioritize tribal rights and sustainable development.

Constitutional Safeguards for Indigenous Communities

The Indian Constitution provides constitutional safeguards for indigenous communities, commonly referred to as Scheduled Tribes (STs), through various provisions. These safeguards aim to protect their distinct identity, culture, and socio-economic interests. In this analysis, we will critically examine the constitutional safeguards for tribal rights, focusing on the provisions under the Fifth and Sixth Schedules of the Indian Constitution, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Forest Rights Act), and the role of the Panchayat (Extension to Scheduled Areas) Act, 1996 (PESA) in protecting tribal land rights.

Constitutional Safeguards for Tribal Rights

Fifth Schedule: The Fifth Schedule of the Indian Constitution provides special provisions for the administration and governance of Scheduled Areas, which are predominantly inhabited by STs. It empowers the Governor of each state to regulate and protect tribal land, prohibit transfer of land from tribal individuals to non-tribals, and oversee the welfare and development of STs.

Sixth Schedule: The Sixth Schedule applies to certain tribal areas in the north eastern states of Assam, Meghalaya, Tripura, and Mizoram. It establishes autonomous district councils (ADCs) with legislative, executive, and financial powers to govern these areas. ADCs have the authority to make laws on various subjects, including land, forests, and social customs. They play a crucial role in preserving the tribal identity and promoting self-governance.

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Forest Rights Act):

The Forest Rights Act was enacted to recognize and vest forest rights and occupation of forestland in forest-dwelling Scheduled Tribes and other traditional forest dwellers. It provides for the recognition of individual and community rights over forestland, access to forest resources for livelihood purposes, and the conservation and management of forests. The Act aims to rectify historical injustices and empower tribal communities to protect their traditional rights and cultural heritage.

Role of the Panchayat (Extension to Scheduled Areas) Act, 1996 (PESA) in Protecting Tribal Land Rights:

PESA was enacted to extend the provisions of the 73rd Constitutional Amendment Act, which deals with the establishment and functioning of Panchayats (local self-government institutions), to the Scheduled Areas. PESA seeks to empower tribal communities by granting them self-governance rights over local resources and decision-making processes. It recognizes the traditional social and justice systems of STs and provides them with the authority to regulate and manage their natural resources, including land.

PESA plays a crucial role in protecting tribal land rights by requiring the consent of the Gram Sabhas (village assemblies) for land acquisition and major development projects in Scheduled Areas. It also mandates the involvement of Gram Sabhas in the planning and implementation of various developmental programs and schemes.

Critical Analysis:

While the constitutional provisions and laws mentioned above provide a framework for safeguarding tribal rights, there are several challenges in their effective implementation. Some of the critical issues include:

Weak Implementation: Despite constitutional safeguards, there have been instances of inadequate implementation and enforcement of tribal rights. Lack of awareness, bureaucratic hurdles, and limited resources often hinder the effective protection of tribal rights.

Conflicts and Displacement: The rapid pace of development projects, including infrastructure and industrial activities, has resulted in conflicts over land and displacement of tribal communities. The balance between developmental needs and the protection of tribal rights remains a challenge.

Inadequate Recognition of Community Rights: The Forest Rights Act recognizes individual and community rights over forestland. However, there have been concerns regarding the recognition and vesting of community rights, leading to the exclusion of many deserving tribal communities.

Limited Autonomy: While the Fifth and Sixth Schedules and PESA aim to provide autonomy to tribal communities, the extent of self-governance and decision-making powers granted to them is often limited. The involvement of state and central authorities in tribal governance can constrain the exercise of their autonomy.

The Indian Constitution recognizes the right and safeguards of indigenous communities, but the effective implementation of these provisions remains a challenge. To ensure the meaningful empowerment and protection of tribal rights, there is a need for increased awareness, capacity building, and participatory decision-making processes involving tribal communities. Strengthening the institutions responsible for the implementation of these safeguards and addressing the existing gaps and challenges are essential for securing the rights and well-being of indigenous communities in India.

Challenges in Implementing PESA (Panchayats (Extension to Scheduled Areas) Act):

The Panchayats (Extension to Scheduled Areas) Act, commonly known as PESA, aimed to empower tribal communities by providing them with self-governance rights. However, its effective implementation has been hindered by several challenges:

1. Lack of Awareness and Capacity Building: Tribal communities often lack awareness of their rights under PESA, while government officials may not understand the Act&#8217;s provisions. Capacity-building programs are necessary to educate both communities and officials.

2. Inadequate Devolution of Powers: PESA mandates the devolution of powers to Gram Sabhas, but in practice, this transfer of authority has been limited. Centralization of decision-making undermines the autonomy intended by PESA.

3. Conflicts with Other Laws: PESA can conflict with state laws, especially regarding land acquisition and resource management, leading to legal ambiguities and challenges in implementation.

4. Inadequate Financial Resources: Insufficient allocation of funds to Gram Sabhas hampers their ability to deliver services and undertake development activities as mandated by PESA.

5. Political Interference: Political interests may oppose the devolution of power under PESA, leading to resistance and hampering its effective implementation.

Addressing these challenges requires raising awareness, ensuring devolution of powers, resolving legal conflicts, providing adequate resources, and mitigating political interference.

Land Acquisition Laws and their Impact on Tribal Rights

Land acquisition laws have historically marginalized tribal communities, impacting their rights in various ways:

1. Loss of Ancestral Lands: Tribal communities often lose their ancestral lands due to land acquisition for development projects, disrupting their traditional way of life and cultural practices.

2. Displacement and Loss of Livelihoods: Land acquisition frequently leads to the forced displacement of tribal communities, resulting in the loss of livelihoods and social dislocation.

3. Violation of Free, Prior, and Informed Consent: Land acquisition processes often disregard tribal communities&#8217; consent, violating their right to self-determination and meaningful participation.

4. Inadequate Compensation and Rehabilitation: Compensation and rehabilitation measures for displaced tribal communities are often insufficient, exacerbating their marginalization and impoverishment.

5. Environmental Impacts: Land acquisition for development projects can have adverse environmental consequences, disproportionately affecting tribal communities dependent on natural resources.

To protect tribal land rights, fair land acquisition processes, recognition of customary land rights, adequate compensation and rehabilitation, and meaningful participation of tribal communities are essential.

Several challenges persist in protecting tribal land rights

1. Historical Injustices and Land Alienation: Historical injustices, including colonization and land dispossession, have deprived tribal communities of their traditional lands, undermining their self-governance and cultural practices.

2. Development Projects and Displacement of Tribals: Development projects often displace tribal communities, disrupting their livelihoods and cultural heritage.

3. Issues with Implementation of Protective Legislation: Despite protective legislation, enforcement remains inadequate due to limited awareness, bureaucratic hurdles, and resistance from vested interests.

4. The Concept of Ownership and Traditional Practices: Tribal communities&#8217; communal land ownership clashes with mainstream legal frameworks, leading to conflicts and legal uncertainties.

To address these challenges, awareness-building, meaningful participation, legal reforms, and sustainable development strategies are necessary to safeguard tribal land rights within the broader legal framework.

To address the challenges in implementing PESA (Panchayats (Extension to Scheduled Areas) Act) and protecting tribal land rights, several strategies can be employed

Enhance Awareness and Capacity Building: Conduct targeted educational campaigns to raise awareness among tribal communities about their rights and the provisions of PESA. Provide capacity-building programs for both tribal communities and local authorities to empower them in exercising their rights and fulfilling their responsibilities under PESA.

Ensure Adequate Devolution of Powers: Strengthen the devolution of powers to the Gram Sabhas by transferring decision-making authority on various matters, such as land acquisition, resource management, and social justice. This will help in promoting self-governance and autonomy at the local level.

Harmonize PESA with Other Laws: Address conflicts between PESA and other laws, particularly those related to land acquisition and development projects. Ensure that PESA is harmonized with other legal frameworks to avoid legal ambiguities and inconsistencies in its implementation.

Strengthen Institutional Mechanisms: Improve the institutional mechanisms for the implementation of PESA at the state and district levels. Provide adequate personnel, infrastructure, and financial resources to support the effective functioning of the Gram Sabhas.

Promote Meaningful Participation and Consultation: Encourage the participation of tribal communities in decision-making processes related to land acquisition and development projects. Ensure that their free, prior, and informed consent is obtained, and they have a say in the planning and implementation of projects that may affect their lands and livelihoods.

Recognize Customary Land Rights: Acknowledge and respect the communal or collective relationship that tribal communities have with land, based on their traditional practices and customs. This will help in addressing the disconnect between legal frameworks and traditional practices, reducing conflicts, and promoting the recognition and protection of tribal land rights.

Address Historical Injustices and Land Alienation: Work towards addressing historical injustices and land alienation by recognizing customary land rights and providing adequate compensation mechanisms for displaced communities. This will help in promoting social justice and ensuring the protection of tribal land rights.

Ensure Adequate Compensation and Rehabilitation: Provide adequate compensation and rehabilitation measures for displaced tribal communities, ensuring that they are not left in a vulnerable and marginalized state. This will help in mitigating the negative impacts of land acquisition on tribal land rights.

Promote Sustainable Development: Design and implement development projects in a manner that respects tribal land rights and minimizes their negative impact. This includes conducting comprehensive environmental and social impact assessments, promoting sustainable livelihood alternatives for displaced tribal communities, and integrating indigenous knowledge and practices into development planning.

Empower Tribal Communities: Support tribal communities in asserting their land rights effectively. This includes providing access to justice mechanisms, promoting community-led land governance models that recognize and respect traditional land practices, and empowering tribal communities to engage in legal processes.

Role of Traditional Customary Practices in land dispute

The role of traditional customary practices in land disputes is significant in preserving tribal autonomy and resolving conflicts within the community. These practices prioritize community consensus, mediation, and restorative justice over formal litigation. They reflect the community&#8217;s collective wisdom, values, and systems of governance.

Traditional customary practices can provide a framework for resolving conflicts in a manner that is culturally appropriate and acceptable to the tribal community. They often prioritize community consensus, mediation, and restorative justice over formal litigation. They may involve community elders, customary leaders, or traditional institutions as intermediaries in the resolution process.

The role of traditional customary practices is not without challenges. Their recognition and application within the formal legal framework can be complex, as they may differ from mainstream legal principles and procedures. Balancing the preservation of customary practices with the need for legal certainty, uniformity, and constitutional safeguards requires careful consideration.

In recent years, efforts have been made to strike a balance between traditional customary practices and the statutory legal system. Legislation such as the Panchayat (Extension to Scheduled Areas) Act, 1996 (PESA) seeks to empower tribal communities and recognize their traditional governance systems within the framework of decentralized administration.

In conclusion, the role of traditional customary practices in land disputes is significant for preserving tribal autonomy, promoting community consensus, and maintaining cultural integrity. Recognizing and integrating these practices into the legal framework can contribute to more inclusive and effective resolution of land disputes in tribal areas.

Balancing Development Needs with Tribal Rights

Balancing development needs with tribal rights is a significant constitutional challenge in India. The government&#8217;s development agenda often involves infrastructure projects, industrialization, or resource extraction, which can potentially infringe upon the rights of indigenous and tribal communities to their ancestral lands and resources. Constitutions typically provide for the protection of fundamental rights, including the rights of indigenous and tribal peoples. However, conflicts arise when the government&#8217;s development agenda clashes with the rights of these communities.

Courts play a crucial role in interpreting and applying constitutional provisions to strike a balance between development and tribal rights. They must carefully consider the principles of proportionality and reasonableness to ensure that the government&#8217;s actions do not disproportionately harm the rights and interests of indigenous and tribal communities.

Defining and Recognizing Customary Land Rights

Another constitutional challenge is the recognition and definition of customary land rights. Indigenous and tribal communities often have unique customary practices and traditional systems of land ownership and resource management. However, these customary rights are not always explicitly recognized or protected in constitutional frameworks.

Constitutions should provide clear provisions that acknowledge and protect the customary land rights of indigenous and tribal peoples. This involves defining the scope and extent of these rights, including rights to possession, use, and control of ancestral lands and resources. Additionally, constitutional provisions should ensure that these rights are not undermined or extinguished without the free, prior, and informed consent of the affected indigenous or tribal communities.

Ensuring Effective Participation of Tribals in Decision-Making Processes:

The effective participation of indigenous and tribal communities in decision-making processes is essential to uphold their constitutional rights. These communities have a right to participate in matters that affect their ancestral lands and resources, including decisions about development projects, land use planning, and natural resource exploitation.

Constitutions should guarantee mechanisms for meaningful and inclusive participation, such as consultation and consent processes, for indigenous and tribal communities. This requires ensuring that their voices are heard, their perspectives are considered, and their consent is obtained before any decisions are made. Governments must create avenues for dialogue and engagement that respect the cultural and traditional practices of these communities. The constitutional framework should also provide remedies and mechanisms to address grievances and disputes arising from inadequate or non-existent participation.

The Role of the Judiciary in Upholding Constitutional Safeguards

The judiciary plays a crucial role in upholding constitutional safeguards for indigenous and tribal peoples&#8217; rights over their ancestral lands and natural resources. Courts interpret constitutional provisions and ensure that the rights of these communities are protected and enforced.

Judicial review allows courts to examine the constitutionality of laws, policies, and actions that may impact indigenous and tribal rights. They have the responsibility to determine whether the government&#8217;s actions comply with constitutional provisions and international human rights standards. Courts can strike down or modify laws or policies that violate the constitutional rights of indigenous and tribal communities.

Furthermore, the judiciary can provide remedies and relief to affected communities when their rights have been infringed. This may include ordering the recognition of customary land rights, halting or modifying development projects, or awarding compensation for damages caused.

In conclusion, constitutional challenges related to indigenous and tribal peoples&#8217; rights over their ancestral lands and natural resources require a delicate balance between development needs and tribal rights. Defining and recognizing customary land rights, ensuring effective participation of tribes in decision-making processes, and the role of the judiciary in upholding constitutional safeguards are vital aspects in addressing these challenges. By appropriately addressing these issues within the constitutional framework, governments can protect the rights of indigenous and tribal peoples while promoting sustainable development.

Examples of development projects that have led to displacement or negatively impacted tribals in India include:

Large-scale infrastructure projects such as dams, mining operations, and industrial projects. These projects often require the acquisition of land, which can result in the displacement of indigenous communities from their traditional territories. The construction and operation of these projects can also lead to environmental degradation, loss of livelihoods and disruption of cultural practices.

Forest conservation and protected areas: Efforts to conserve forests and establish protected areas have sometimes resulted in the eviction of tribal communities who have traditionally inhabited and depended on these areas for their livelihoods. These communities are often accused of illegal encroachment and are forcibly relocated without adequate compensation or alternative means of sustenance.

Urbanization and urban development projects: As cities expand and urban infrastructure is developed, tribal communities living in or near urban areas can face displacement due to land acquisition for infrastructure projects, housing developments, or commercial purposes.

To minimize the interference of non-tribal interests in the decision-making process, the following measures can be considered:

Strengthening the implementation of the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA): PESA grants autonomy to tribal gram sabhas (village assemblies) in decision-making processes related to land, resources, and governance within scheduled areas. Ensuring the effective implementation of PESA can empower tribal communities and reduce the influence of non-tribal interests.

Promoting inclusive and participatory governance: Engaging tribal communities in decision-making processes through mechanisms such as consultations, public hearings, and the involvement of community-based organizations can help ensure that their voices and interests are taken into account.

Strengthening legal protections: Enacting and enforcing laws and policies that explicitly protect the rights and interests of tribal communities can help safeguard their decision-making processes from non-tribal interference. These protections should include provisions for free, prior, and informed consent (FPIC) and meaningful participation of tribal communities in projects and policies that affect their lands and resources.

Enhancing awareness and capacity-building: Increasing awareness among tribal communities about their rights, legal frameworks, and decision-making processes can empower them to actively participate and assert their interests. Capacity-building initiatives can help build the skills and knowledge necessary for effective engagement in decision-making processes.

Conflicts between the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) and other laws in India can arise due to overlapping jurisdictions and conflicting provisions. Some examples include:

Land acquisition laws: PESA grants tribal gram sabhas the power to regulate land acquisition and transfer of land within scheduled areas. However, other laws, such as the Land Acquisition Act, may provide separate procedures and authorities for land acquisition, creating a conflict of jurisdiction.

Forest laws: The Forest Rights Act (FRA) of 2006 recognizes the rights of tribal communities and other traditional forest dwellers over forest lands. However, there can be conflicts between the provisions of PESA and FRA regarding the ownership and management of forest resources within scheduled areas.

Mining and environmental laws: The extraction of minerals and implementation of environmental regulations can sometimes clash with the rights and interests of tribal communities. Conflicts may arise regarding the control and use of natural resources, as well as the potential environmental impacts of mining activities.

The implementation of PESA can be strengthened at the state and district levels through the following measures:

Capacity&#8211;building and awareness: Providing training and support to local government officials, administrators, and community leaders on the provisions and objectives of PESA can enhance their understanding and implementation of the law.

Institutional support: Establishing dedicated institutions or cells at the state and district levels to facilitate the implementation of PESA can help ensure its effective execution. These institutions can provide guidance, monitor compliance, and address grievances related to tribal governance and rights.

Adequate financial and administrative resources: Allocating sufficient financial and administrative resources to the local self-governance institutions, such as gram panchayats, can enable them to carry out their functions effectively. This includes providing support for capacity-building, infrastructure development, and delivery of public services.

Regular monitoring and evaluation: Instituting mechanisms for monitoring and evaluating the implementation of PESA can help identify gaps and challenges, enabling timely interventions and corrective measures. Regular review and reporting can also promote accountability and transparency in the process.

Potential solutions to address resistance and opposition faced in implementing PESA include:

Awareness and education: Increasing awareness among tribal communities, non-tribal stakeholders, and the general public about the objectives, benefits, and provisions of PESA can help dispel misconceptions and build support for its implementation.

Dialogue and consultation: Engaging in meaningful dialogue and consultation with all stakeholders, including tribal communities, non-tribal interests, and government authorities, can foster understanding, address concerns, and find mutually acceptable solutions.

Conflict resolution mechanisms: Establishing effective mechanisms for conflict resolution, such as mediation or arbitration, can help address disputes and conflicts that arise during the implementation of PESA. These mechanisms should be accessible, impartial, and culturally sensitive to ensure fair outcomes.

Capacity&#8211;building and support: Providing technical assistance, training, and support to tribal communities, local government officials, and other relevant stakeholders can strengthen their capacity to navigate the complexities of implementing PESA. This includes building skills in governance, legal literacy, advocacy, and negotiation.

Incentives and benefits: Offering incentives or benefits to stakeholders who actively support and participate in the implementation of PESA can help generate greater buy-in and cooperation. This could include providing financial support, recognition, or preferential access to resources or development opportunities.

Legal remedies available for violations of tribal land rights in India include:

Constitutional remedies: Tribal communities can approach the courts for the enforcement of their fundamental rights guaranteed under the Indian Constitution. These include the right to equality, right to life and personal liberty, right to property, and the right to preserve their culture and heritage.

Specific legislation: The Forest Rights Act (FRA) of 2006 provides legal remedies for violations of tribal rights over forest lands and resources. The Act recognizes and vests forest rights in tribal and other traditional forest-dwelling communities and provides mechanisms for the recognition and protection.

Recommendations and the way forward:

a) Strengthening the implementation of existing legal frameworks:

To ensure the effective protection of tribal land rights, it is crucial to strengthen the implementation of existing legal frameworks. This can be achieved through the following steps:

Ensuring that relevant government agencies are adequately resourced and empowered to enforce existing laws and regulations.

Establishing mechanisms for regular monitoring and reporting on the implementation of legal frameworks, including the identification and addressing of any challenges or loopholes.

Engaging in dialogue with tribal communities to understand their needs and concerns and to ensure that their perspectives are taken into account in the implementation of legal frameworks.

b) Addressing the loopholes in legislation:

Identifying and addressing loopholes in legislation is essential for the effective protection of tribal land rights. This can be achieved through the following steps:

Conducting a comprehensive review of existing legislation to identify any gaps or inconsistencies that may undermine the protection of tribal land rights.

Engaging in a participatory process to amend or revise existing legislation to ensure that it adequately protects tribal land rights.

Ensuring that new legislation is developed in consultation with tribal communities and is informed by their traditional knowledge and practices.

c) Promoting awareness and education on tribal land rights:

Raising awareness and education on tribal land rights is crucial for empowering tribal communities to assert their rights and to ensure that their voices are heard in decision-making processes. This can be achieved through the following steps:

Developing targeted awareness campaigns and educational programs to inform tribal communities about their rights, legal mechanisms available for land protection, and strategies for asserting their rights effectively.

Collaborating with civil society organizations, community leaders, and educational institutions to develop and deliver educational programs that promote awareness of tribal land rights.

Incorporating land rights education into school curricula to ensure that future generations are equipped with the knowledge and skills to protect their land rights.

d) Exploring alternative development models that respect tribal communities:

Alternative development models that respect tribal communities and their land rights are essential for ensuring sustainable and inclusive development. This can be achieved through the following steps:

Engaging in dialogue with tribal communities to understand their development needs and aspirations and to co-create development models that align with their priorities.

Supporting sustainable livelihood options that respect tribal communities&#8217; traditional knowledge and practices.

Ensuring that tribal communities have a meaningful say in decision-making processes that affect their lands and resources.

Incorporating traditional knowledge and practices into development planning processes to ensure that they are culturally sensitive and environmentally sustainable.

In conclusion, the recommendations emphasize the importance of strengthening the implementation of existing legal frameworks, addressing legislative gaps, promoting awareness and education on tribal land rights, and exploring alternative development models that respect tribal communities. By taking these actions, governments, policymakers, and relevant stakeholders can contribute to the protection and promotion of the ancestral lands and natural resources of indigenous and tribal peoples, ultimately fostering a more inclusive and equitable society.

Conclusion

The issue of tribal land rights in India is a complex and multifaceted challenge that requires a comprehensive approach to ensure their protection. The Indian Constitution provides constitutional safeguards for indigenous communities, but the effective implementation of these provisions remains a challenge. The historical context of land dispossession and marginalization of tribal communities during the colonial era has left a lasting impact on their land rights.

Despite the constitutional provisions, tribal communities continue to face challenges in protecting their land rights due to factors such as land disputes, encroachment by non-tribal settlers, and inadequate implementation of protective measures. The lack of clarity in defining tribal lands, weak land titling systems, and legal ambiguities contribute to the persistence of land disputes and the erosion of tribal rights.

To address these challenges, further research could focus on the following areas:

Strengthening the implementation of existing legal frameworks: Conducting a comprehensive review of existing legislation to identify gaps or inconsistencies that may undermine the protection of tribal land rights. Engaging in a participatory process to amend or revise existing legislation to ensure that it adequately protects tribal land rights.

Promoting awareness and education on tribal land rights: Developing targeted awareness campaigns and educational programs to inform tribal communities about their rights, legal mechanisms available for land protection, and strategies for asserting their rights effectively. Collaborating with civil society organizations, community leaders, and educational institutions to develop and deliver educational programs that promote awareness of tribal land rights.

Exploring alternative development models that respect tribal communities: Engaging in dialogue with tribal communities to understand their development needs and aspirations and to co-create development models that align with their priorities. Supporting sustainable livelihood options that respect tribal communities&#8217; traditional knowledge and practices. Ensuring that tribal communities have a meaningful say in decision-making processes that affect their lands and resources. Incorporating traditional knowledge and practices into development planning processes to ensure that they are culturally sensitive and environmentally sustainable.

Addressing the role of traditional customary practices in land disputes: Investigating the potential for integrating traditional customary practices into the legal framework to promote more inclusive and effective resolution of land disputes in tribal areas.

Assessing the impact of international obligations on tribal land rights: Analysing India&#8217;s compliance with international human rights standards and conventions, such as the International Labour Organization (ILO) Convention No. 169, and their implications for tribal land rights, self-governance, and cultural preservation.

By focusing on these areas, further research can contribute to the ongoing discourse on indigenous rights and promote the development of a more inclusive and equitable legal framework in India. It is crucial to continue the dialogue and take action to protect the ancestral lands and natural resources of indigenous and tribal peoples, fostering a more inclusive and equitable society.
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BY: POONAM

INTRODUCTION

FACTS OF THE CASE

According to Section 19(1)(a) of the Competition Act of 2002, the &#8220;Informants&#8221; filed a complaint against Google LLC and Google India Private Limited (collectively referred to as &#8220;Opposite Parties&#8221; or &#8220;Google&#8221;), alleging, among other things, that Google abused its dominant position in mobile operating system markets in violation of Section 4 of the Competition Act. Google LLC (formerly Google Inc.), a wholly owned subsidiary of Alphabet Inc., is a Delaware limited liability corporation that focuses on search, advertising, operating systems, platforms, and enterprise services. Google offers a number of IT services, including online search, which is accessible via applications and partner websites. Google also provides advertising services and operates several platforms, including Chrome, Gmail, Google Drive, Google Maps, Android, Google Play, and YouTube. Google India Private Limited, a wholly owned indirect subsidiary of Alphabet Inc. and Google LLC, is also involved in these initiatives. The informants allege that Google abuses its dominant power by: (1) requiring smartphone and tablet makers to preinstall only Google&#8217;s own applications or services to access any component of GMS, impeding the development and market access of competing mobile applications or services; (2) bundling specific Google applications and services with additional ones, preventing the development and market entry of competing applications and services; and (3) prohibiting Indian manufacturers

ISSUES OF&nbsp; THE CASE

Issue I: Is the mandatory pre-installation of the whole GMS suite under MADA regarded an imposition of unfair conditions on device manufacturers, violating Sections 4(2)(a)(i) and 4(2)(d) of the Act?

Issue II: Has Google maintained its dominant position in the online search industry, thereby excluding competing search apps in contravention of Section 4(2)(c) of the Act?

Issue III: Did Google use its dominating position in the Play Store to strengthen its dominance in online general search, violating Section 4(2)(e) of the Act?

Issue IV: Did Google engage in abusive activity by linking the Google Chrome App to the Play Store, violating Section 4(2)(e) of the Act?

Issue V: Did Google engage in oppressive activity by linking the YouTube App to the Play Store, violating Section 4(2)(e) of the Act?

JUDGEMENT

COMPETITION COMMISSION OF INDIA

In line with Section 27 of the Act, the CCI assessed fines on Google and ordered the corporation to stop infringing Section 4. To back up these assertions, it is critical to define the important markets in which the company operates, taking into account both product and geography. Market power and dominating position are assessed, with emphasis on whether the business can function independently of competition. The assessment seeks to identify true competitors capable of restricting behavior.

Market definition takes into account aspects such as product interchangeability, pricing, and consumer preferences in order to comprehend competitive restrictions. When examining dominant position, the qualities stated in Section 4 are considered to evaluate if the company has a large market influence.

The obligation for device manufacturers to pre-install the whole Google Mobile Suite (GMS) under MADA puts them at a disadvantage because they cannot delete it, despite their prominent position.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL

Following the NCLAT verdict, Google filed an appeal contesting the CCI&#8217;s finding that it misused its dominant position in the Android mobile device ecosystem. Google contended that the decision will hurt Indian users and raise the cost of such gadgets in the nation.

However, the Honorable Tribunal rejected to award a stay of execution for the CCI sentence. It stated that it would issue an order only after consulting with all parties involved. Additionally, Google was ordered to pay 10% of the penalty amount.

SUPREME COURT

Google petitioned the Honorable Supreme Court, challenging the NCLAT&#8217;s order. The Supreme Court stated in its conclusion that while the appeal is still ongoing before the NCLAT, it is inappropriate to render a decision on the merits of the arguments offered by the parties. Providing an opinion on the merits at this time may have an impact on the continuing proceedings before the NCLAT. The Supreme Court stressed that the CCI&#8217;s judgments cannot be viewed as lacking jurisdiction or including an obvious error that necessitates intervening in the appeal at the interim stage. The Supreme Court asked the NCLAT to determine the dispute by March 31, 2023.

DEFECTS OF THE LAW

The lawsuit was governed by the Competition Act of 2002. It particularly addressed the widespread occurrence of anticompetitive activity and cartels&#8217; abuse of dominating market positions. These cartels, which are frequently supported by political authorities, have significant power over smaller firms, resulting in negative effects on competition. Unfortunately, smaller producing firms sometimes choose not to raise concerns about such misbehavior, aggravating the market&#8217;s unequal structure.

CONCLUSION

The ongoing litigation concerns claims against Google for abusing its dominating position in the Indian market, which are comparable to issues seen in Europe. The European General Court has penalized Google for infringing Article 102 of the TFEU and Article 54 of the European Economic Area Agreement, citing anticompetitive contractual constraints imposed on Android device manufacturers and mobile network operators.

Similarly, Google has used India&#8217;s vague interpretation of competition laws to its benefit. Compliance with the CCI&#8217;s decision would entail extensive changes to Google&#8217;s policies regarding the Play Store and third-party businesses, posing a difficult task to the internet giant. Implementing these rules may result in financial losses for Google and serve as a disincentive to other tech behemoths dominating the industry.

Following the decision in Google LLC v Competition Commission of India, an important precedent has been set for individuals who violate India&#8217;s competition laws. Google&#8217;s obvious misuse of its dominating position, as demonstrated by the required pre-installation of Google apps for Android users, leaves no room for alternative service providers. As a result, the fine imposed on Google is justified, considering its abuse and exploitation of market dominance to restrict both major and minor market participants.

BIBLIOGRAPHY

<ol start="1">
<li>Aneesh Raj &amp; Chirantan Kashyap, Abuse of dominance: An analysis of CCI order in Google case. CBCL(Centre for Business &amp; Commercial Laws).</li>

<li>Aarti Sonawane, Google V. Competition Commission of India- A Case Review. Mondaq(Connecting knowledge &amp; People).June 07, 2023</li>

<li>Kashish Awtani, Abuse of Dominant Position By Google Case Analysis of Google V. CCI. Brain Booster Articles. May 7, 2023</li>

<li>ICSI.EDU. CCI Imposed penalty on google for abusing dominant position- A case analysis. November 2022.</li>

<li>Business Standards. refuses to stay CCI&#8217;s order of Rs 936 crore penalty on Google. NCLAT, January 28 2023</li>

<li>Padmakshi Sharma.Will Same Steps Taken In Europe Be Followed In India?&#8217;: Supreme Court Asks Google In Challenge To CCI Order Over Android Dominance.&nbsp; Live Law, 16 January 2023.</li>
</ol>

<a></a>GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY

University School Of Law And Legal Studies

&nbsp;Case Comment:&nbsp; Google V. CCI

Programme &#8211; BA LLB(HONS)&nbsp;

Semester &#8211; IV

Submitted to : &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Submitted by:&nbsp;

Amikus Qriaee&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Poonam
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<h5 class="wp-block-heading">I. Introduction</h5>

The compulsory imposition of financial charges by governments on persons and corporations is known as taxation. Taxation is important to accomplish tasks like raising money to pay for public services, dividing the wealth to encourage social justice, monitoring behaviour to solve social issues (such as tobacco, alcohol, or carbon emissions to discourage their consumption), stabilising the economy through fiscal policy, and guaranteeing the provision of necessities for the general public. This includes infrastructure (roads, bridges, public transportation), national defence, public education, healthcare, and social welfare programs. Thus, to maintain a just and functional society, taxes are necessary.

But what is pink tax? Now Men and women need similar products in day-to-day life however, when the goods and services are marketed for women and for which the men pay lesser is termed as pink tax. <a href="#_edn1" id="_ednref1">[i]</a>The difference is that the government does not receive the extra money when a pink-coloured product is sold (the female version) for more than a blue one (the male version). These women-focused products are usually similar in ingredients, textiles, appearance, description and marketing to the men’s products. <a href="#_edn2" id="_ednref2">[ii]</a>The corporations are the only ones who benefit from the &#8220;pink tax&#8221;. The term &#8220;pink tax was coined in the mid-1990s in California when the Gender Tax Repeal Act of 1995 in the USA, forbade price discrimination on services.&#8221;<a href="#_edn3" id="_ednref3">[iii]</a> This gender-based price discrimination is found in several consumer goods, such as clothing, toys for children, personal care products, personal care services, senior care services, and auto services. In addition, the cost of women&#8217;s hand tools, hair colour, and undergarments is frequently more than that of men despite the unequal pay package.

<h5 class="wp-block-heading">II. Understanding the Pink Tax Globally and in the Indian Context</h5>

Different States in the USA are pursuing legislation like the Gender Tax Repeal Act of 1995 <a href="#_edn4" id="_ednref4">[iv]</a>and the “Pink Tax Repeal Act” Bill of 2021 <a href="#_edn5" id="_ednref5">[v]</a>to address this problem and advance justice and equity in the consumer marketplace. Similarly, the UK has initiated the Gender-based Pricing (Prohibition) Bill.<a href="#_edn6" id="_ednref6">[vi]</a> The countries in the European Union like France, Germany, along with countries like Canada, Australia and New Zealand have taken steps to address the problem of the pink tax.

India too is not exempt from this phenomenon as it hosts many multinational companies that sell products at a higher rate for women’s personal care products, clothing, and other services. “For example, a disposable blue or black colour razor for men costs around Rs. 20, while a pink disposable razor for ladies’ costs around Rs. 55. This is also true with salon services where a haircut for men, for example, costs around Rs. 150, whereas a haircut for ladies might cost up to Rs. 600 or even more. On similar lines, one of the most generic 150 ml deodorants for men costs ₹114, whereas the cost of an essential women&#8217;s deodorant of the same quantity starts from ₹136 onwards on the e-commerce platform.”

Indian culture weighs heavily on the appearance of women where they are required to be presentable. The pink tax negatively affects women as the products are marketed in such a way that makes women think that if they use normal products then it is too harsh for the skin or will harm them in some way which is not true. Also, the packaging is usually colourful, has pictures of women on it, floral designs, attractive, and so forth. Low-income women who are often paid less than men are disproportionately affected by the pink tax, which forces them to choose between necessities and other fundamental requirements in the household. Because of this, the cycle of poverty and inequality persists, making it more difficult for these women to pay for basic needs like food, housing, and medical care. To make matters worse, the pink tax also widens the income disparity between men and women.<a href="#_edn7" id="_ednref7">[vii]</a> In India, men make 82% of the labour pay while women make only 18% for similar work, according to the World Inequality Report 2022. With fewer women having their own money at their disposal, it means they have to depend on others like their father or their husband to sustain them. India has a salary equality score of 0.62 and ranks 135th out of 146 countries in the World Economic Forum (WEF) report from 2022 on the gender gap index. This demonstrates how severe the gender pay gap is in India and how it affects the pink tax debate, as women may find it harder to bear the higher costs associated with gender-based pricing. “During the COVID pandemic, women’s unemployment rate skyrocketed to 12.8 per cent between February and April 2020, while men’s unemployment rate rose to only 9.9 per cent”. This further impacted women’s purchasing power within the economy.<a href="#_edn8" id="_ednref8">[viii]</a> In addition, the pink tax also exasperates &#8220;period poverty&#8221; wherein a woman is unable to buy even basic menstrual hygiene products every month. This has led to many campaigns around the world advocating for the elimination of the so-called &#8220;tampon tax,&#8221; which refers to consumer taxes like value-added tax (VAT) that most countries impose on products like sanitary pads, tampons, menstrual cups, and liners.<a href="#_edn9" id="_ednref9">[ix]</a>

<h5 class="wp-block-heading">III. Legal and Regulatory Framework</h5>

The Constitution of India under Articles 14, 15, and 16 emphasises that no citizen shall be subjected to discrimination based on caste, sex, race, or religion. Thus, women too should not be discriminated against based on the products marketed to them with higher price rates.<a href="#_edn10" id="_ednref10">[x]</a> There is no specific legislation in India yet wherein this issue is directly addressed, however, other statutes can be used in the interim to tackle this issue:

<ul>
<li>Consult the Consumer Protection Act, 2019 to Section 2(28) which mentions misleading advertisements and Section 2(47) which mentions unfair trade practices. Furthermore, The Central Consumer Protection Authority can also initiate an inquiry into the matter where an aggrieved woman can file a complaint with either the district, state, or national commission under the Consumer Protection Act.</li>

<li>The Competition Act, 2002 under Section 4 a (ii) prohibits an enterprise in India from abusing its dominant position wherein if an enterprise or a group directly or indirectly, imposes unfair or discriminatory— prices in the purchase or sale (including predatory prices) of goods or services.<a id="_ednref11" href="#_edn11">[xi]</a></li>

<li>Tampons and sanitary pads were quickly targeted for revocation when they were classified as luxury goods and subject to a 12% tax. There were challenges and petitions, one of which collected more than 400,000 signatures. The initiative known as &#8220;blood tax,&#8221; or &#8220;Lahu ka Lagaan&#8221; in Hindi, was successful when India&#8217;s temporary finance minister, Piyush Goyal, declared that sanitary pads were 100% tax-free.<a id="_ednref12" href="#_edn12">[xii]</a></li>
</ul>

There is no specific case law or landmark judgment to tackle this issue yet.

<h5 class="wp-block-heading">V. Challenges and Barriers to Addressing the Pink Tax</h5>

Some different issues and challenges pose as challenges and barriers to addressing the pink tax.

<ul>
<li>Lack of awareness among women</li>
</ul>

Many women are not aware of the Pink Tax&#8217;s existence or scope in the products they use which makes it challenging for them to identify instances in which they are being unfairly charged. Their inability to speak up for themselves and oppose unfair pricing practices stems from this ignorance. Recently in 2024 Biocon chairperson Kiran Mazumdar-Shaw on her Twitter (X) handle, sharply reacted to a video on &#8216;Pink Tax&#8217;. She condemned the bias, urging women to boycott such products.

<ul>
<li>Lack of action by companies</li>
</ul>

Concerns over profitability, market perception, or internal prejudices may be the reason why several global corporations, such as Gilette, GAP, and others, are reluctant to confront the Pink Tax. The progress towards gender equality in pricing is restricted in the absence of aggressive initiatives by firms to eradicate gender-based pricing inequalities.

<ul>
<li>Lack of knowledge about Implementation Bodies</li>
</ul>

There are insufficient enforcement mechanisms due to the lack of knowledge among consumers. Many people are unaware that registered users can complain online with the National Consumer Helpline portal of the Ministry of Consumer Affairs, Food and Public Distribution. They need to register themselves with the portal to file or lodge their complaints online and also check the status of already filed complaints. Additionally, the Integrated Grievance Redressal Mechanism (IGRAM) states that grievance officers must acknowledge a complaint within 48 hours and resolve it within one month.

<ul>
<li>Lack of corporate accountability</li>
</ul>

It is difficult to hold companies responsible for their pricing decisions when there is a lack of transparency and accountability in corporate processes. In the absence of accountability and transparency procedures, businesses might be free to carry out discriminatory pricing practices. Therefore, it is important to be a smart shopper and encourage purchases from establishments with gender-neutral pricing <a href="#_edn13" id="_ednref13">[xiii]</a>

<h5 class="wp-block-heading">V. Probable Solution to outlaw this inequality</h5>

Several approaches may be used to deal with the problems caused by the Pink Tax. Promoting informed consumer behaviour is essential so that women make knowledgeable purchase decisions. Furthermore, incorporating successful legislative proposals from other nations into the Indian context can aid in the official outlawing of the Pink Tax. Another useful strategy is to use the legal system through Public Interest Litigation (PIL). PILs can promote legislative changes and increase public awareness of unfair pricing practices. Moreover, online public sign campaigns and petitions can support consumer activism. In addition, cultural and sociological factors that perpetuate these inequities should also be questioned.

<h5 class="wp-block-heading">VI. Conclusion</h5>

The Pink Tax is a major problem that requires a variety of approaches to be solved. Customers must be made aware of gender-based price discrepancies in addition to formalising discriminatory pricing practices through the adoption of legal efforts from other countries. Public campaigns and Public Interest Litigation (PIL) are useful tools for advocating policy changes and increasing public awareness. To successfully eliminate gender-based price discrepancies, however, issues such as a lack of knowledge, corporate inertia, and inadequate knowledge on enforcement mechanisms must be addressed. These disparities are sustained by societal norms and deeply rooted cultural practices, necessitating careful analysis and intervention.

-Annie Cardoz

Adv.Balasaheb Apte College of Law, Mumbai.

<a href="#_ednref1" id="_edn1">[i]</a>Amy Fontinelle, What is the pink tax? Impact on women, regulation, and laws Investopedia (2023), https://www.investopedia.com/pink-tax-5095458 (last visited Apr 6, 2024).

<a href="#_ednref2" id="_edn2">[ii]</a> Yang, J., García Pérez, M., Bouzid, N. and Madroñal Colomé, N., 2020. Bye bye pink tax: The Gillette case study. <a href="about:blank">Chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://repositori.upf.edu/bitstream/handle/10230/46278/Yang_etalt_byebyepinktax_MUDFI2.pdf?sequence=1&amp;isAllowed=y</a>

<a href="#_ednref3" id="_edn3">[iii]</a> Lane Gillespie, The pink tax: Latest updates and Statistics Bankrate (2023), https://www.bankrate.com/personal-finance/pink-tax-how-women-pay-more/#key-insights (Accessed: 12 March 2024). (last visited Apr 6, 2024).

<a href="#_ednref4" id="_edn4">[iv]</a> Code section (no date) Law section. Available at: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=51.6. (Accessed: 14 March 2024).

<a href="#_ednref5" id="_edn5">[v]</a> (No date) H.R.3853 &#8211; 117th Congress (2021-2022): Pink Tax Repeal &#8230; Available at: <a href="https://www.congress.gov/bill/117th-congress/house-bill/3853/all-actions?s=1&amp;r=10&amp;overview=closed">https://www.congress.gov/bill/117th-congress/house-bill/3853/all-actions?s=1&amp;r=10&amp;overview=closed</a>

&nbsp;(Accessed: 12 March 2024).

<a href="#_ednref6" id="_edn6">[vi]</a> Gender-based Pricing (Prohibition) Bill (no date) Parliamentary Bills. Available at: <a href="https://bills.parliament.uk/bills/2724%20">https://bills.parliament.uk/bills/2724</a> (Accessed: 12 March 2024).

<a href="#_ednref7" id="_edn7">[vii]</a> Manisha (2023) Pink tax: An examination of gender-based pricing disparities and implications for women’s Economic Equality, Legally Flawless (2024), <a href="https://legallyflawless.in/pink-tax-examination-gender-pricing-disparities-implications-womens-economic-equality/#google_vignette">https://legallyflawless.in/pink-tax-examination-gender-pricing-disparities-implications-womens-economic-equality/#google_vignette</a> (last visited Apr 6, 2024)

<a href="#_ednref8" id="_edn8">[viii]</a>Hannah Guo, Think pink: Analyzing the history and future of the Pink Tax The Varsity (2022), <a href="https://thevarsity.ca/2022/01/09/history-and-future-of-pink-tax/#:~:text=The%20pink%20tax%20in%20Canada&amp;text=Ontario%20attempted%20to%20introduce%20a,against%20the%20Human%20Rights%20Code">https://thevarsity.ca/2022/01/09/history-and-future-of-pink-tax/#:~:text=The%20pink%20tax%20in%20Canada&amp;text=Ontario%20attempted%20to%20introduce%20a,against%20the%20Human%20Rights%20Code</a> (last visited Apr 6, 2024).

<a href="#_ednref9" id="_edn9">[ix]</a> Kalyani B Nair, Discrimination taxation: Is pink tax a boon or Bane? Taxscan (2024), <a href="https://www.taxscan.in/discrimination-taxation-is-pink-tax-a-boon-or-bane/360931/#google_vignette">https://www.taxscan.in/discrimination-taxation-is-pink-tax-a-boon-or-bane/360931/#google_vignette</a>

&nbsp;(last visited Apr 6, 2024).

<a href="#_ednref10" id="_edn10">[x]</a> Vedanti Vanjari, Pink tax Legal Service India &#8211; Law, Lawyers and Legal Resources, <a href="https://legalserviceindia.com/legal/article-9185-pink-tax.html#google_vignette">https://legalserviceindia.com/legal/article-9185-pink-tax.html#google_vignette</a>

&nbsp;(last visited Apr 6, 2024).

<a href="#_ednref11" id="_edn11">[xi]</a> The Competition Act 2022

<a href="#_ednref12" id="_edn12">[xii]</a> BBC India Scraps Tampon tax after campaign, BBC News (2018), <a href="https://www.bbc.com/news/world-asia-india-44912742">https://www.bbc.com/news/world-asia-india-44912742</a>

&nbsp;(last visited Apr 6, 2024).

<a></a><a href="#_ednref13" id="_edn13">[xiii]</a> Rajat Saxena ‘A LEGAL STUDY OF THE APPLICABILITY OF PINK TAX IN INDIA ’ (2022) , International Journal of Creative Research Thoughts, 10(8).

<a href="about:blank">chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://ijcrt.org/papers/IJCRT2208172.pdf</a>
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