Did India successfully overthrow the British Raj on Independence Day?

• Adv. Anwesha Ghosh
• Thu, 14 May 2020 02:36 PM

Did India really gain independence on August 15th, 1947? The appropriate response is NO. India was granted only a dominion status on August 15, 1947, yet we still unknowingly celebrate it as Indian Independence Day. Only on January 26th, 1950 when India became a republic was the word Dominion replaced by Republic.

A lot of people in India still consider that a Dominion status is equivalent to an absolute independent status. This is not a fact.  According to The Balfour Declaration of 1926 dominions are autonomous communities within the British Empire, united by a common allegiance to the Crown. Even the same mistaken belief was also held by all Congress leaders in those days who openly proclaimed that there was no difference between dominion status and independence. Although afterward, Subhash Chandra Bose proposed that independence meant the complete dissolution of any relationship with the British; and for this, he was labeled as a ‘terrorist’ and ‘foreign agent’.

At the beginning of freedom struggle, most political parties in India were in favour of dominion status, which would retain the monarch of the United Kingdom as the constitutional head of state of India, and preserve political powers for the British Parliament in Indian constitutional affairs. Even the Indian National Congress, and Mahatma Gandhi, felt dominion status was the first logical and necessary step. A resolution demanding complete independence as early as in 1927 was rejected for this very reason.

In December 1928, when the Indian National Congress passed a resolution demanding dominion status to India from the British, the empire rejected the idea, refusing to alter India’s ‘colony’ status. This aforementioned incident of rejection by the British Raj filled the Congress with fury, and such strong feelings fuelled the Lahore Session of the Indian National Congress in 1929, where the Congress finally voted for ‘Poorna Swaraj’.

In the aftermath when India became Independent on 15th August 1947, our country did not have its Constitution, and thereby it was dependent on the colonial Government of India Act, 1935. Until the Constitution in 1950 came into effect, India was still a constitutional monarchy and had no democracy or constitution in place. Back then, the head of state was King George VI who was designated as ‘King of India’, with Earl Mountbatten as the Governor-General. India’s citizens were denied the freedom to elect their own leaders who could run the country. It is only after the Constitution of India came into effect on 26th January 1950 our nation truly became a Republic which meant that we could have an elected Head of the State in the name of President who could be indirectly elected for a fixed period of five years by the people.

So now that we know the history behind our Nation being proclaimed as ‘Republic’, let’s analyze the journey of the Constitution of India from its inception. Under the leadership of Dr. Bhimrao Ramji Ambedkar as the chairman, the Drafting Committee for forming a permanent constitution of India was appointed. The committee worked with great vigor and took a period of 2 years 11 months and 18 days to make its final version which was ratified by the Constituent Assembly on 26 November 1949. But the Assembly still waited till 26^th January 1950 i.e. another two months from the date of enactment to enforce it, the reason being that, on 26^th January 1929 during the Lahore session of Congress, a resolution for ‘Poorna Swaraj’ was passed which we have earlier discussed in this article and hence the leaders of our country decided that there could be no better day than 26 January for the Constitution of India to come into being.

To conclude, I believe that as law students or practicing lawyers we should be aware of the historical background of this particular event to understand the true essence of the word ‘Republic’ as enshrined in the Preamble of our Constitution.

~ By Adv. Anwesha Ghosh, LL.M. Graduate of NLU Ranchi, Lawyer at V.H. Kanara and Associates Advocates, Jamnagar, Gujarat

Work from home: The New Work Culture

• Utkarsh Shukla
• Article
• Tue, 12 May 2020 12:35 PM

"Change is all about motion,

Motion is all about uncertainty,

And we are deeply uncomfortable with uncertainty."

Elizabeth Gilbert

Uncertain times never come with an alarm, and they teach us to live in an adverse situation. However uncertain situations might be, we adapt, we embrace it in our lives. With the outbreak of the Corona Virus, we came across such a condition in decades, when the whole world was almost locked inside their houses. People are afraid, anxious, stressed of the situation. But the situation is bringing a revolution at such a large scale, which otherwise would not have been possible -a digital revolution.

With the shutdown of the whole world, the work pattern has been impacted in the most severe ways. Initially, people avoided their works, but now, work is needed to be continued to sustain lives. Work from Home, that is, to continue their regular work from their places, rather than meeting in a common office, came as a wave due to the pandemic. This new working method has impacted the whole of traditional work ideology.

Let’s first discuss its direct advantages and disadvantages;-

Advantages

One of the major benefits is the comfort of the employees. As the employees will work from home, they will self-administer the work. When a person goes to an office, s/he is expected to follow some ethics and norms. These norms include clothes, attire, self-maintenance, but this reduces their concentration from the work itself. But when there is no tangible office space, they are not invested in the secondary code of ethics, and hence can be more concentrated.

To work from home also saves a lot of time and money. Many workers spend hours in commuting to their workplace. This incorporates many parts of income of low wages workers. But this hurdle is also overcome by the new working style. Food in the office is also a major investment. People spend a lot of money on food in the office, still are not able to get proper nutritious food. This not only affects their wealth but also their health. In-home, everyone will get home-cooked food, and hence this will increase concentration.

The most important benefit is the flexibility of the schedule. In nine-to-five working the pattern, workers try to spend the time on work, just to go home. But this new pattern has encouraged the employees to work according to their will. They feel responsible and self-reliant. People try to finish their task in lesser time. Hence, they do the same amount of work in much lesser time. Many employees including professors who work at more than one place can now easily manage parallel work.

The new pattern has not only affected the employees, but also the employers. Initially, it will reduce a lot of investment on their part. They will not have to pay for fancy offices and their maintenance. They will not have to invest in many office supplies as well. Hence, they can invest the same amount in a more productive income-generating field to earn a profit.

Another major benefit for the employers is that they can hire the best employees from all around the globe, defeating all the geographical boundaries. They can easily assign different work to different people who can coordinate among themselves. This will also reduce management investment.

Disadvantages

Along with many advantages, there are certain disadvantages and problems in work from a home pattern. First and foremost, the lack of a proper working environment. At home, people are generally with their families. Hence, their concentration is diverted at many other places. Employees also lack seriousness and determination. They sometimes take long power naps, invest more than the required time at lunch and they are not able to differentiate between work and rest time. The nine-to-five job becomes a 24-hour job, where they are unable to manage their work. They lack a routine. As all of them work according to their comfort, they spend almost all day in parts on work rather a usual long continuous work time. This leads to an unmanaged ambiguous and unhealthy working practice. The feeling a lack of boundaries on when a person should start working, when should s/he get up and go to sleep when to log off of social media and more can feel like true liberation. This feeling gradually morphs into a feeling of being out of control for many who don't expect it.

Communication problems also play a major role. Every employee is at a different place connected through a virtual network. Hence, they lack coordination. Many a time, a team lacks its efficiency due to just one or two employees. When many people are working together and there is co-dependent, then these communication problems take a bigger role. As every person follows his/her schedule, they often lack a common work time.

Another problem is the lack of equipment and facilities, which are available in the office not home. These include various objects like multiple computers, printers, scanners and various facilities like internet, canteen and crèche. This results in the loss of efficient work.

There are some problems for the part of employers as well. Initially, administration problem. It is difficult to administer the work of so many employees without physical interaction. It takes a lot more time in coordination and problem-solving. They are unable to analyze the stress among the workers. There is also the risk of security of important information.

Efficiency and Productivity

Work from home, although became popular due to the Covid-19 outbreak, still was a culture in many domains of works, including the IT sector. This raises a question for the employers: Which is more productive for their work- work from office or home?

Air tasker surveyed to study the same in 2019 among US employees. Researchers polled 1,004 full-time employees among which, 505 were people who worked remotely. The study found that working from home increases productivity and leads to healthier lifestyles. It was found that on average a remote employee worked 1.4 days more every month. The difference in focus was not much (8% loss of focus in remote employees as compared to 6%). It also states that ‘long commutes caused 1 in 4 respondents to quit a job at some point.’ Workers saved $4523 on fuel, 408 hours a year (commuting time). According to Softchoice’s 2017 study Collaboration Unleashed, 74% of workers would switch jobs for the opportunity to work off-site more often. A similar study shows that remote employees lost 27 minutes per day on distractions, as opposed to the 37 minutes distracted office workers lost. A research was conducted by Nicholas Bloom of Stanford Institute for Economic Policy Research based on a randomized control trial on 1,000 employees of Ctrip, a Chinese travel company. It revealed that working from home for nine months led to a 13 per cent increase in performance – almost an extra day of output per week – plus a 50 per cent drop in employee-quit rates. The experiment was so successful that Ctrip rolled out working from home to the whole firm. A study also found that when faced with a creative task, people were more productive working from home.

Some other researchers show opposite results. According to Nicholas Bloom (Stanford Institute for Economic Policy Research), “We are home working alongside our kids, in unsuitable spaces, with no choice and no in-office days”. A 2012 study found that people performed “dull” tasks better in a controlled cubicle setting than they did in a less-structured remote environment.

Psychological effects

Our daily interactions are shown to reinforce our sense of well-being and belonging in a community. But today, millions are being forced to work from home, resulting in loneliness and isolation. Researches show that these can be “twice as harmful to physical and mental health as obesity.” For those who are accustomed to and appreciative of conventional office life and a steady rate of social interactions at the office, the shift to remote work might cause a relatively mild, deterioration of mental health. A 2019 survey by cloud infrastructure company Digital Ocean found that 82% of remote tech workers in the U.S. felt burnt out, with 52% reporting that they work longer hours than those in the office, and 40% feeling as though they needed to contribute more than their in-office colleagues. Another research shows that 54% of remote workers and 49% of office workers said they felt "overly stressed during the workday," 45% of remote workers and 42% of office workers "experienced high levels of anxiety during the workday," and 37% of remote workers and 35% of office workers said they "procrastinated on a task until its deadline." 

In 2019, State of Remote Work conducted a survey which showed that 49 per cent of remote workers claimed that their greatest challenge is related to mental health. 22 per cent are unable to unplug from work, 19 percent suffer from loneliness, and 8 percent struggle with motivation. In the UK, businesses lose £100m every year due to workplace stress, depression and anxiety. A 2017 United Nations report found that 41% of remote workers reported high-stress levels, compared to just 25% of office workers.

One study of 1,100 workers found that the 52% who worked from home at least some of the time were more likely to feel left out and mistreated, as well as unable to deal with the conflict between themselves and colleagues.

Environmental Benefits

Work from home not only benefits individuals in many ways but also the world we live in. When people will work from, there will be no need to commute to work, the automobiles will not be crowded on the streets. According to global warming reports, an average car emits about six tons of carbon dioxide every year. Air pollution is reported to be one of the world’s largest health and environmental problems, contributing to 9% of deaths globally. From 2005 to 2013, India emitted 20.54 billion tons of carbon dioxide equivalent (CO₂), with emissions growing annually by 5.57 percent. Work from Home helps to reduce greenhouse gas emissions. It will also lead to less consumption of the fuels contributing to a greener environment.

Work from home will help in reducing solid waste as well. In offices, much of the work and documentation is in the hard copy form. According to reports, the average office worker generates about 2 pounds worth of paper and paperboard products every day and uses 10,000 sheets of paper per year. But when each person will work from home, sitting at different places, these hard copy documents will automatically convert into soft copy. Energy can also be saved. On average, large office buildings in the US use an average of 20 kilowatt-hours (kWh) of electricity and 24 cubic feet of natural gas per square foot annually. This usage will be reduced in homes, mainly because the employee feels responsible and has to pay the bill himself/herself.

On the other hand, we cannot deny that the work from home has increased the use of the internet and devices. The global information and communication technology (ICT) ecosystem has a huge environmental impact such that its carbon footprint is on a par with the entire aviation industry’s emissions from fuel. According to Gartner consultants, the internet was responsible for 2% of global emissions in 2007, outstripping the carbon footprint of the aviation industry. Even the manufacture of this device leads to a large amount of pollution. An average computer needs 240 kg of fuel, 22 kg of chemicals and 1500 litres of water. The increase in these usages of such devices will also lead to a large amount of resource use. A controversial article entitled “Power, Pollution and the Internet” in The New York Times put the figure at 30 billion watts of electricity usage in 2011, “roughly equivalent to the output of 30 nuclear power plants”. The CEET reports that the internet now accounts for 1.5% to 2% of the world’s energy consumption.

Conclusion

The Covid-19 pandemic is not only a health disaster but also a mediator for change in work culture. And whether we like it or not, work from home is a big revolution which will continue to exist even after lockdown. Although it has many positive as well as a negative effect, we should embrace it, better the positives, and overcome the negatives. Mental health should be given special attention by both employers and employees. After all, we are human and can adapt ourselves to all adverse situations.

Change can be scary, but you know what’s scarier?

Allowing Fear, to stop you from Growing, Evolving and Progressing.

Mandy Hole.

RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

• Bhavni Sahai
• Legal Notes
• Tue, 26 May 2020 03:02 PM

There is a divergence of opinion on the question as to whether International Law and Municipal Law on the various national laws can be said to form a unity being manifestations of a single conception of law or whether International Law constitutes an independent system of law essentially different from the Municipal Law. International Law has developed in a form which is different from that of Municipal Law. The relation has been categorized traditionally been characterized from monist or dualist perspective.

International Law

According to the Black’s Law Dictionary

“International Law” is defined as: “The legal system governing the relationship between nations; more modernly the Law of International relations  embracing  not only nations but also such participants as  International organizations and individuals (such as those who invoke their human rights or commit war crimes)”

International law is the set of rules generally regarded and accepted as binding in relations between states and nations. It differs from national legal systems in that it only concerns nations rather than private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform.

The term "international law" can refer to three distinct legal disciplines:

• Public international law, which governs the relationship between provinces and international entities. It includes these legal fields: treaty law, law of sea, international criminal law and the laws of war or international humanitarian law.
• Private international law, or conflict of laws, is a body of law developed to resolve private, non-state disputes involving more than one jurisdiction or one foreign law element, which addresses the questions of :

1. which jurisdiction may hear a case, and
2. the law concerning which jurisdiction applies to the issues in the case.

• Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.

The two traditional branches of the field are:

• Jus gentium  : is the body of treaties, U.N. conventions, and other international agreements [law of nations] – Law is common to all nations
• Jus inter gentes: agreements between nations

Municipal Law

According to the Black’s Law Dictionary

“Municipal Law” is defined as: “The ordinances and other laws applicable within a city, town or other local government entity”.

Basically, Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels. While, as far as the law of the state is concerned, these may be distinct categories of law, international law is largely uninterested in this distinction and treats them all as one. Similarly, international law makes no distinction between the ordinary law of the state and its constitutional law.

Article 27 of the Vienna Convention on the Law of Treaties provides that, where a treaty conflicts with a state's municipal law (including the state's constitution), the state is still obliged to meet its obligations under the treaty. The only exception to this rule is provided by Article 46 of the Vienna Convention, where a state's expression of consent to be bound by a treaty was a manifest violation of a "rule of its internal law of fundamental importance.”

Relationship between International and Municipal Law

It is important to understand how international law principles become part of domestic law, and to explain what happens if the rules conflict. The theories of monism and dualism are the two main theories that explain the relationship between international and municipal law.

• Monism

In this theory, all law is part of a universal legal order and regulates the conduct of the individual State. The difference in the international sphere is that the consequences are generally attributed to the State. Since all law is part of the same legal order, international law is automatically incorporated into the domestic legal order. Some monist theorists consider that international law prevails over domestic law if they are in conflict; others, that conflicting domestic law has some operation within the domestic legal system.

• Dualism

This theory holds that international law and domestic law are separate bodies of law, operating independently of each other. Under dualism, rules and principles of international law cannot operate directly in domestic law, and must be transformed or incorporated into domestic law before they can affect individual rights and obligations.

The main differences between international and domestic law are thought to be the sources of law, its subjects, and subject matter. International law derives from the collective will of States, its subjects are the States themselves, and its subject matter is the relations between States. Domestic law derives from the will of the sovereign or the State, its subjects are the individuals within the State, and its subject matter is the relations of individuals with each other and with government.

• Harmonisation

Neither monism nor dualism can adequately explain the relationship between international and domestic law, and alternative theories have developed which regard international law as having a harmonisation role. If there is a conflict, domestic law is applied within the domestic legal system, leaving the State responsible at the international level for any breach of its international law obligations.

Position of International Law with the Constitution framework of India

The drafters of the Indian Constitution have been extremely vague in defining the status of international law in the municipal sphere. Our Constitution provides little guidance as to the relationship between international law and municipal law. This ambiguity looms large in the absence of any debate in the Constitutional Assembly on the subject and the studied silence of Constitutional pundits.

The primary issue is whether our Constitution makes a mere textual disposition of the relationship of International Law and Municipal Law. Apart from the express provisions of the Constitution, we also need to rely on actual State practice. Article 51(C)[1] (which falls within the realm of the Directive Principles that are non-justifiable in character) of the Constitution specifically mentions International Law and imposes a duty on the state to respect it. But the jurisdiction of the court to enforce them in the domestic arena has been limited by virtue of Article 37. In this backdrop, it is interesting to take note of 'The Regulating Act of 1873', which directed all Courts in India to act in accordance with "equity, justice and good conscience". On the basis of this principle, Common Law rules were transplanted into the Indian Municipal Law. It seems that India has barely deviated from its preconstitutional position in the matters of basic canons governing the principles of International law and Municipal Law.

It is a well-established principle that constitutional conventions may also breathe through legislative or constitutional enactments;[2] So, the common law rules automatically became unwritten Constitutional law of a supplementary character. It is an important principle of Constitutional interpretation that every provision of the Constitution must be given effect to. Therefore, these rules continue to be in force in the Indian legal setting by virtue of Article 225 and 37 of the Constitution of India. These provisions are based on the universally recognised principle that law once established, continues until changed by some competent legislative power. The Indian Independence Act, 1947 also incorporated the same principles under section 18(3). Therefore, such practices will be of binding nature in International Law as well as in the Municipal sphere. Hence under Article 372 of the Constitution such practices will have the force of law and India will be bound to observe the same. A composite reading of the Articles 51(c),253 and 372 suggest that India has not deviated from the common law position. Therefore, India will have the same legal practice of treating customary International Law as part of the law of the land provided that it is not inconsistent with the existing statutory provisions and the national charter.

Regarding treaties they have to be transformed into enabling legislation. In the Indian context, the ratification of a treaty doesn't ipso facto transform it into domestic law. The nonobstante clause under Article 253 of the Constitution bestows on the Parliament exclusive competence to legislate upon the treaties entered into by the Government of India.

However, Dr. P.C. Rao aptly cautions that by virtue of Article 73, "The executive power extends to all transactions which bring the Union into the relation with any foreign country or other international person". Accordingly, when there is a controlling executive; recourse cannot be had to principles of Customary International Law. Nor can such principles override the case law.

Supreme Court has held in several cases such as Vishakha vs. State of Rajasthan, Randhir vs. Union of India, Unnikrishnan vs. State of Karnataka, that domestic laws of India, including the constitution are not to be read as derogatory to International law. An effort must be made to read the domestic law as being in harmony with the international law in case of any ambiguity. At the same time, the constitution is still the supreme law of the land and in case of any directly conflict the constitution will prevail.

The above inspection of the Constitutional provisions amply clarifies the status of international law in the domestic field.

Conclusion

There are mainly two theories- monistic and dualistic which are used to study the relationship between the internal and international law. Monistic theory is based on natural law which suggests that internal law as well as international law is a part of the same law and there is no need for separation between them. But the dualistic theory which is based on positive law says that domestic law and international law are separate entities. The nation state need not obey international law unless it accepts to do so. Though both theories has its own place in international law, few countries in this world follow pure dualism or monism. The countries follow international law when it is in their favour and do not follow when it is not. This is what we can see in the international scenario.

Defamation: Types and Legality

• Amrita Bhatt
• Legal Notes
• Sat, 09 May 2020 03:52 PM

IS DEFAMATION TORT OR CRIME?

Defamation is a process of lowering the reputation of any person. It can be done either in oral or in writing in the form. When it is done in written form then it is called libel and when it is done oral form then it is termed as slander. The defamation is basically publication of false statements against the claimant without his consent with the intention to lower his reputation. It is considered as an offense because it causes damages to the claimant in the form of lowering social or political reputation. Which results in financial and economical loss to the claimant.

The basic elements of defamation are-

-The statement should be published.

- The statement should be false.

-The statement should refer to the claimant.

Categories of defamation in India-

1. Criminal defamation
2. Civil defamation

a)Criminal defamation is dealt with under section 499- 500 of Indian Penal Code (IPC) Any person who is charged for defamation under criminal law should be charged for punishment along with damages. The punishment for defamation under criminal law is imprisonment for 2 years or more with or without fine

According to IPC crime defamation will take place when any person publishes any statement with the intention to lower the reputation of the claimant and the statement published is false. The statement should refer to the claimant only during this situation the plaintiff can institute a case of defamation against the defendant.

R Naik Vs Union of India[1]

In this case section, 499 and 500 of IPC were challenged by the plaintiff for criminal defamation. The validity of section 499 and 500 became academic in this case.

b) Civil defamation is dealt under tort law as a general rule it only focuses on libel that is the written defamation statement and does not focus on slander that is the oral defamation statement. In order to prove that the statement libelous. The claimant has to prove that-

-The statements are false.

-The statements are written.

-The statements are defamatory.

-The statements are published.

Ram Jethlalmana vs Subramyam Swami[2]

In this case, the court held that the statement made by the defendant was irrelevant. The aim was to destroy the image of the person. The defendant made the statement with the intention to lose the reputation by linking his name with the corrupt company. The statement ruins the social and political republican of the plaintiff. The plaintiff was awarded 5 Lakhs by the defendant.

Conclusions

From the above two cases, we can say in India defamation is both tort and crime. In the case of tort civil laws are applied. Where punishment is not given only damages are given. And in the case of Crime criminal laws are applied and along with damages, punishment is also given. In criminal law, defamation is considered as a bailable offense.