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SUPREMO AMICUS
VOLUME 19 ISSN: 2456-9704
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www.supremoamicus.org
SUPREMO AMICUS
ISSN 2456-9704
PIF 6.242 _____________________________________________________________________________
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VOLUME 19
AUGUST, 2020
SUPREMO AMICUS
VOLUME 19 ISSN: 2456-9704
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PIF 6.242 www.supremoamicus.org i
EDITORIAL TEAM
Editor-in-chief
Birinder Singh
(Advocate, Punjab & Haryana High Court)
Co-Editor-in-chief
Prateek Mahajan
(Advocate, Punjab & Haryana High Court)
Managing Editor
Ivan Khosa
(Advocate, Punjab & Haryana High Court)
Senior Editor
Praduman Garg | Shivali Garg | Malkiat Singh Hundal
Advocate | Advocate | Advocate
P&H High Court | P&H High Court | P&H High Court
International Advisory from Other Streams
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Public Relation | Public Relation | Certificate Designer
(International Applicants) | (National Applicants) |
Adishail Gupta | Akhil Gupta | Nisha Ajmani
MBA, UIAMS, PU | MIM | M.PHIL
University of Maryland University of Manitoba
USA Canada
Associate Editors
National Executive | International Executive | Student Assistance
Mansi Singh | Manisha Ajmani | Rohit Singla
BA.LLB (HONS) | M.PHIl | LL.B
UILS, PU | Glasgow Caledonion University | Dept of Laws, PU
UK
Student Editors
Sanya Singh | Surner Singh | Sumit Verma | Shubham Gupta
5th year | 2nd Year | 4th year | 4th year
UILS, PU | UILS, PU | UILS, PU | UILS, PU
Ajay Pratap Grewal | Asmita Chakraborty | Sativ Bhalla | Aakash Negi
4th year | 2nd year | 4th year | 2nd year
UILS, PU | CNLU, Bihar | UILS, PU | UILS, PU
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Student Editors (2018-2019)
Pooja Kapur | Gaurav Hooda | Sarthak Makkar | Rekha Kumari
Amity Law School | Army Institute of | Gujarat National | Dept of Laws
Amity University Law, Mohali Law University Bhagat Phool
Singh Noida Gandhinagar Mahila Vishwa
Vidyalaya, Sonipat
Siddharth Baskar | Jatin Budhiraja | Pranav Kumar Kaushal | Kiffi Aggarwal
Amity University | Amity Law School | Bahra University | BPSMV, Sonipat
Noida Noida Shimla
Dixita | Mayank Vats | Leepakshi Rajpal | Adarsh Pandey
Banasthali Vidhyapith| Symbiosis Law | Symbiosis Law | City Academy Law
School, Hyderabad School, Hyderabad College, UP
Abhinav Verma | Maahi Mayuri
Campus Law Centre, Faculty of Law, | Bharati Vidyapeeth Deemed University,
University of Delhi Pune
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DISCLAIMER
No part of this publication may be reproduced or copied in any form by any means without
prior written permission of Editor-in-chief of Supremo Amicus. The Editorial Team of
Supremo Amicus holds the copyright to all articles contributed to this publication. The views
expressed in this publication are purely personal opinions of the authors and do not reflect the
views of the Editorial Team of Supremo Amicus. Though all efforts are made to ensure the
accuracy and correctness of the information published, the Editorial Team or the Publisher of
Supremo Amicus shall not be responsible for any errors caused due to oversight or otherwise.
© Supremo Amicus, All Rights Reserved
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EDITORIAL
Supremo Amicus is an online peer reviewed international journal on law and science. The
journal seeks to provide comprehensive information on different aspects of legal and scientific
field. It focuses on the advancement in science and law and the various challenges which are
before us in these fields.
The main purpose of the journal is to encourage original research in these fields and to publish
outstanding articles. It aims at providing good quality readable material to its readers and to
spread knowledge in the area of science and law. The journal welcomes students, research
scholars, academicians, and practitioners to present their studies on various topics
acknowledged by this journal and also provide them a platform for publication of their works.
With this thought, we bring forth this journal before you.
TEAM
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TABLE OF CONTENTS
1. MENTAL HEALTH- NOT A PERSONAL FAILURE By Aanya Agarwal and Visheshta Kalra……………………………………………………….1
2. CYBERCRIME IS THE BANE OF THE INTERNET: IS INDIA READY? By Aarushi Chopra………………………………………………………………………….…7
3. ANALOGOUS SCRUTINY OF REAL ESTATE LAWS IN INDIA AND BRITAIN By Aditi Joshi and Tushar Kumrawat………………………………………………………...12
4. ANALYSIS OF JAMMU AND KASHMIR DOMICILE LAW By Aditya Hawaldar………………………………………………………………………….17
5. THE OFFENCE OF OBSCENITY UNDER THE INFORMATION TECHNOLOGY
ACT, 2000 AND THE INDIAN PENAL CODE
By Advaith Raj………………………………………………………………………………..26
6. POLICE BRUTALITY AND FAKE ENCOUNTERS: AN INSIGHT ON COLD- BLOODED MURDERS
By Afifa Siddiqui and Suryansha Shikhar Singh……………………………………………...31
7. CRUELTY: A VITAL GROUND FOR DIVORCE By Ajay Sharma………………………………………………………………………………45
8. JUST WAR THEORY AND THE RIGHT TO UNIVERSAL HEALTHCARE: ANALYSING THE INTERNATIONAL HUMATIARIAN LAW IN LIGHT OF
GLOBAL PANDEMICS
By Akash Krishnan, Kushagra Gahoi, Manpreet Chaudhary, Alluri Manoj Sai and Anav
Kotecha……………………………………………………………………………………….53
9. IMPORTANCE OF EDUCATION IN POLITICS
By Aksha Tarannum………………………………………………………………………….63
10. S.53A, TRANSFER OF PROPERTY ACT - A SWORD TO ITS OWN SHIELD? By Aman Mehta………………………………………………………………………………67
11. INSURABILITY OF E-COMMERCE RISKS. WHAT INDIA CAN LEARN FROM USA?
By Aman Sinha, Aishwarya Sinha and Swati Sundarraj…………………………………….73
12. ‘INFODEMIC – ANOTHER PANDEMIC TO FIGHT By Anagha Narasimha C N…………………………………………………………………...81
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13. CRIME AGAINST WOMEN & MEDIA AS AN AIDE By Ananya Gadre and Anubhav Wani………………………………………………………..86
14. CULPABLE HOMICIDE AND MURDER By Anshul Mittal……………………………………………………………………………...93
15. SECONDARY MARKET: ISSUES AND REGULATORY FRAMEWORK By Antra Pandit………………………………………………………………………………98
16. FILIAL RESPONSIBILITY LAW IN INDIA: A CRITICAL ANALYSIS OF THE EXISTING LAW AND ITS PROPOSED AMENDMENT
By Anup Menon V…………………………………………………………………………...109
17. GEOGRAPHICAL INDICATIONS FOR FOOD PRODUCTS WITH SPECIAL REFERENCE TO INDIA
By Apoorva Chandrachur and Shreya Chamaria…………………………………………...120
18. FORCE MAJEURE’ AND THE ‘PANDEMIC’: A COMPREHENSIVE ANALYSIS UNDER THE INDIAN CONTRACT LAW
By Arpinderdeep Singh……………………………………………………………………...126
19. CASE COMMENT ON STATE DELHI ADMINISTRATION VS SANJAY GANDHI 1978 CR. L952 (SC)
By Ayelita Ghosh……………………………………………………………………………140
20. CHILD RIGHTS AND PROTECTION: AN INTERDISCIPLINARY FIELD OF LAW By Ayushi Sharma…………………………………………………………………………..144
21. A CRITICAL ANALYSIS ON PREVENTIVE DETENTION IN INDIA By B. vamshidhar Reddy…………………………………………………………………...155
22. THE FEMALE SOLDIER: NEED TO INDUCT WOMEN INTO COMBAT ROLES IN THE INDIAN ARMY
By Bhavna Shri Harsha……………………………………………………………………..169
23. EVALUATION OF APPLICABILUTY OF JUDICIAL INTERVENTION IN ARBITRATION PROCEEDINGS: ARBITRATION AND CONCILIATION ACT, 1996
By Bhavya Goswami………………………………………………………………………...179
24. THE EXISTING LEGAL FRAMEWORK OF INTELLECTUAL PROPERTY AND 3D PRINTING
By G. Priyadarshini and Y. Princy Beula…………………………………………………...187
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25. CRITICAL ANALYSIS OF JUDICIAL DECISIONS ON RESERVATION IN PROMOTION
By Harshit Jain……………………………………………………………………………...198
26. MARRIAGE (CONSENT TO RAPE) By Harshit Jain……………………………………………………………………………...210
27. PRESERVING JUSTICE, CONSTITUTIONALITY AND HUMAN RIGHTS IN TIMES OF COVID-19
By Harshit Sankhla………………………………………………………………………….217
28. MARITAL RAPE: THE ACT OF TRAUMA ON BODY AND MIND By Hely Kikani………………………………………………………………………………226
29. TREATY OF LISBON AND ITS IMPACTS ON COMPETITION LAW By Hemangini Shekhawat…………………………………………………………………...230
30. WILDLIFE CONSERVATION INTENTIONS IN INDIA By I.Nisha Padmavathy……………………………………………………………………..236
31. CONTRIBUTION OF INDIAN MEDIA : ‘YESTERDAY AND TODAY’ By Janhavi and Ujjwal Lohat……………………………………………………………….241
32. INDIA: A FORM OF ASYMMETRICAL FEDERATION By Komal Agrawal and Priyansh Agarwal…………………………………………………249
33. RIGHT TO ABORTION: A LIBERTY OF RIGHT AND CHOICE By K.R. Azad………………………………………………………………………………...255
34. RIGHTS OF ARRESTED PERSON- A CONSTITUTIONAL AND LEGAL ANALYSIS By Kunal Garg………………………………………………………………………………265
35. ANTI-TORTURE LAW- A COMPELLING NEED FOR STANDALONE LEGISLATION IN INDIA
By M. Sri Nikila and G.S. Shri Gayathri…………………………………………………….271
36. DEMOCRACY SANS FREEDOM OF SPEECH AND EXPRESSION VIS Á VIS FREE PRESS: A STUDY OF INDIAN SCENARIO
By Mayank Singh……………………………………………………………………………279
37. IMPACT OF COVID 19 ON ARBITRATION PROCEEDINGS; ONLINE DISPUTE RESOLUTION A WAY FORWARD
By Megha Shawani, Shubhangi Tiwari……………………………………………………...285
38. CHILD ABUSE By Mehak Aneja……………………………………………………………………………..292
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39. THE PLIGHT OF THE INDIAN JUDICIARY By Mohit Sirohi……………………………………………………………………………..297
40. WOMAN DIRECTOR- A PROVISION ON PAPER OR IN PRACTICE? By Nikita Ninad Bokil and Shiva Sah………………………………………………………..313
41. DECODING THE INTERPLAY OF STANDARD ESSENTIAL PATENTS AND COMPETITION LAW : AN INDIAN PERSPECTIVE
By Nishtha Pant……………………………………………………………………………..319
42. LEGAL AND PRACTICAL ASPECTS OF AIRCRAFT LEASING IN INDIA By Piyush Singh Phogat…………………………………………………………………….327
43. ENFORCEMENT OF FUNDAMENTAL RIGHTS: STUDY IN THE CONTEXT OF USA, SOUTH AFRICA AND INDIA
By Prachi Tyagi……………………………………………………………………………..332
44. A SOCIO LEGAL STUDY OF MARRIED MUSLIM WOMEN IN CONTEMPORARY INDIA
By Pragati Verma…………………………………………………………………………...341
45. INSTITUTIONAL ARBITRATION IN INDIA: THE WAY TO THE FUTURE By Pranav Raina and Devansh Agarwal……………………………………………………353
46. MYTH AND REALITY OF CAA By Priyamvada Singh……………………………………………………………………….361
47. FREEDOM OF SPEECH ART 19 VS SECTION 499 & 500 OF IPC, 1860 By Priyank Chudasama and Akshata Pai…………………………………………………..369
48. A DETAILED STUDY ON CITIZENSHIP AMENDMENT ACT 2019 By Pujarani Behera…………………………………………………………………………378
49. ABORTION LAWS IN INDIA: THE PARAMOUNT NEED FOR CHANGE By Rishika Rishabh………………………………………………………………………….391
50. A FALLACIOUS RESCUE TO REVERSE DISCRIMINATION: EWS By Rohit Choudhary and Rahul Sodhi………………………………………………………404
51. POLICE BRUTALITY- A LEGAL, CONSTITUTIONAL AND INTERNATIONAL PERSPECTIVE
By Rudra Rout………………………………………………………………………………411
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52. ARTIFICIAL WOMB - CRÈME DE LA CRÈME TO EXTRICATE PREMATURE BABIES?
By S. Aparna and G.Srividhya Iyer…………………………………………………………421
53. INDIAN LEGAL ANALYSIS ON CHILD SEXUAL ABUSE: POCSO ACT 2012 By Sanjana Srivastava………………………………………………………………………437
54. PRATISPARDHA KANOON: THE COMPETITION WATCHDOG By Shambhavi Anand………………………………………………………………………..449
55. ADVANTAGES OF INTERNATIONAL COMMERCIAL ARBITRATION By Shardul Srivastava………..……………………………………………………………..457
56. REACTION TO THE PANDEMIC: A NEW ECONOMIC SYSTEM By Sharmeen Shaikh………………………………………………………………………...462
57. IMPACT ON NON-PAYMENT OF PART OR ENTIRE OF THE SALE CONSIDERATION
By Shashank Sridhar………………………………………………………………………..468
58. ENVIRONMENT PROTECTION: INDIAN ENVIRONMENTAL LAWS AND THE NEW CHALLENGE OF COVID-19 PANDEMIC
By Shashwat Tibrewal………………………………………………………………………477
59. VELLORE CITIZEN WELFARE FORUM V UNION OF INDIA, AIR 1996 SCC 2715 By Shefali Soni………………………………………………………………………………489
60. GREEN CONSUMERISM AND SUSTAINABLE CONSUMPTION By Shivi Chhaberiya………………………………………………………………………...493
61. JUDICIAL INTERVENTION: IS SECTION 34 CREATING AN ENDLESS LOOP? By Shreya Gopal.Ar…………………………………………………………………………503
62. INTERNATIONAL LABOUR STANDARDS AND ITS APPLICATION IN INDIA: THE ANALYSIS
By Shreya Saxena and Gunjan Maji………………………………………………………...512
63. ETHNIC CLEANSING OF ROHINGYA MUSLIMS: VICTIMS OF RACIAL KILLING AND HUMAN RIGHTS INFRINGEMENTS
By Sidrah Jami……………………………………………………………………………...524
64. ABORTION: A TABOO IN INDIA By Sonali Khare……………………………………………………………………………..536
65. EMERGING DYNAMICS AND DIMENSIONS OF ARBITRATION By Sri Hari. R……………………………………………………………………………….542
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66. THE US-IRAN CONFLICT AND THE BREACH OF INTERNATIONAL LAW By Subodh Singh…………………………………………………………………………….550
67. REALIZATION OF THE RIGHTS OF LGBTQ+ COMMUNITY By Sujan Ganesh……………………………………………………………………………560
68. ADULTERY IN INDIA By Surabhi Chhabra………………………………………………………………………...565
69. NO LOCKDOWN OF DOMESTIC VIOLENCE DURING COVID-19 By Susan Baisil……………………………………………………………………………...570
70. INTO THE SHADOWS: INTERWOVEN VOICES OF SILENCES AND VIOLENCE'S AGAINST WOMEN IN PRISONS
By Trisha Mukherjee………………………………………………………………………..581
71. QUINTESSENTIAL QUESTIONS TO LYNCHING By Tusha Singh and Sagaarika Singh……………………………………………………….595
72. RULE OF LAW By Upasana Borah………………………………………………………………………….607
73. RULE OF RABBLE: UPRISING MOBOCRACY By Vaneet Kaur Sokhi and Anishika Garg…………………………………………………..616
74. COVID-19: INFERENCE ON LAW FIRMS IN INDIA By Vasundhara Mahajan and Rhythm Aggarwal……………………………………………626
75. EUTHANASIA IN INDIA – AN ANAYLYTICAL STUDY By Vibhu Aggarwal…………………………………………………………………………635
76. DRACONIAN MEASURES OF DRAGON: HONG KONG SECURITY LAW By Vishwan Upadhyay………………………………………………………………………645
77. THE JURISPRUDENCE OF DHARMA IN THE HINDU EPICS By Vrinda Jain………………………………………………………………………………650
78. COVID 19 PANDEMIC SITUATIONS: - UNDERSTANDING THE LAW, RIGHTS AND RESPONSIBILITIES
By Yashwanth Hariharan.R and John Seema.B……………………………………………..655
79. CYBERCRIME: A SURVEY FOR PERCEPTION OF ADULTS By Yatharth Chauhan……………………………………………………………………….672
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MENTAL HEALTH- NOT A
PERSONAL FAILURE
By Aanya Agarwal and Visheshta Kalra
From Amity Law School, Noida
ABSTRACT
We live in a society in which an issue like
mental health is a stereotype and people
generally avoid accepting the fact that they
are having mental illness also it is seen as a
sign of weakness, not only the lower strata
but also the well-educated class struggle to
accept this fact. In countries like India, this
issue is more serious and the mindset of
people needs to be changed. We have to
acknowledge this truth that mental health is
as important as physical health and there is
no shame in having a mental illness. Also,
the laws and regulations are quite different
for the people suffering from severe mental
disorders and their rights are not the same
as of a normal person, in this paper, these
topics are discussed at length and an
attempt has been made to provide a clear
view to the readers.
INTRODUCTION
“Just because you don’t understand it doesn’t mean it isn’t so”
- Lemony Snicket
According to WHO ‘Mental health could be
a state of well-being during which a person
realises his or her own abilities, can address
the conventional stresses of life, can work
productively and is ready to create a
contribution to his or her community.’
Individuals with mental disorders are
powerless against misuse and infringement
of their essential rights. Such maltreatment
or infringement may happen from various
components in the public eye including
organisations, relatives, parental figures,
experts, companions, random individuals
from the network, and law implementing
offices. This sets a basis for a defensive
instrument to guarantee proper, sufficient,
convenient, and altruistic social insurance
administrations. Such defensive
components incorporate authoritative
arrangements and strategies to guarantee
that the privileges of this helpless gathering
are secured.
Mental health isn't only a concept that
alludes to somebody's mental and
enthusiastic prosperity, but is a condition of
mental and enthusiastic prosperity where a
person can utilize their intellectual and
passionate capacities, fulfil the quality need
and capacities within the general public.
Mental illnesses ought not to be thought of
uniquely in contrast to physical ailments.
Truth be told, the two are indivisible. Since
the whole body is associated and
intertwined, the two can’t be isolated. The
mind is an organ, simply like everything
else within the body and might be harmed
like every other part. When the mind is sick,
it's not disengaged in just the cerebrum, but
influences the whole body. Substance
misuse, self-damage, and self-destruction
are extremely normal and threatening in
those individuals with dysfunctional
behaviours. The disgrace encompassing
dysfunctional behaviour shields individuals
from getting the help they need with one
expecting to indicate signs of improvement
and makes them shroud their agony.
Few types of mental health problems:
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A person can be diagnosed with various
kinds of mental health issues, some of
which are briefly discussed below-1
1. Panic Attacks and Anxiety: A panic attack is an abrupt scene of exceptional dread that
triggers extreme physical responses when
there is no genuine risk or clear reason. Fits
of anxiety can be exceptionally startling. At
the point when fits of anxiety happen, you
may believe you're losing control, having a
cardiovascular failure, or in any event,
kicking the bucket.
2. Bipolar disorder: Bipolar confusion is a psychological instability set apart by
extraordinary movements in a state of mind.
Manifestations can incorporate an
incredibly raised disposition called
craziness. They can likewise incorporate
scenes of sadness. Bipolar confusion is
otherwise called bipolar illness or hyper
discouragement. Individuals with bipolar
confusion may experience difficulty
overseeing the regular day to day existence
errands at school or work or looking after
connections.
3. Depression: Depression is named a state of mind issue. It might be portrayed as
sentiments of pity, misfortune, or outrage
that meddle with an individual's regular
exercises. Individuals experience
wretchedness in various manners. It might
meddle with your day by day work,
bringing about lost time and lower
efficiency. It can likewise impact
connections and some constant wellbeing
conditions.
4. Drugs - recreational drugs & alcohol: A drug can be characterised as any substance
that is assimilated into the body of a living
life form and causes a rotation in the typical
body working. On numerous occasions,
1Bipolar Disorder, Mind (June 30, 2020, 10:25 AM),
https://www.mind.org.uk/information-
support/types-of-mental-health-problems/
these substances are utilized to treat the
manifestations of illness or to fix them.
There are likewise tranquilizes that
individuals take for reasons other than
restorative. Recreational medications are
psychoactive substances that adjust
cerebrum working. Individuals like to take
these substances since it briefly changes the
manner in which they think, feels, and see.
Liquor is the most mainstream of every
recreational medication
5. Phobias: A phobia is an unreasonable and nonsensical dread response. The effect of
fear can extend from irritating to seriously
impairing. Individuals with fears regularly
understand their dread is silly, however
they're not able to take care of business.
Such feelings of trepidation can meddle
with work, school, and individual
connections.
6. Self-harm: Self-hurt, otherwise called self-injury, is characterised as the deliberate,
direct harming of body tissue, managed
without the goal to end it all. Different
terms, for example, cutting and self-
mutilation have been utilized for any self-
hurting conduct paying little heed to a self-
destructive goal.
Scale of problem in India:
Mental health in a nation where
fundamental luxuries like clean water,
power, food, instruction, and lodging are
painfully missing isn't unexpected, yet
profound disgrace additionally adds to the
forswearing and disgrace around the
subject, cutting across lines of religion,
class, position and sexual orientation.
Mental health ought not to be dealt with
flippantly under any conditions, however,
less so in India, where around one out of
https://www.mind.org.uk/information-support/types-of-mental-health-problems/bipolar-disorder/about-bipolar-disorder/https://www.mind.org.uk/information-support/types-of-mental-health-problems/bipolar-disorder/about-bipolar-disorder/
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three individuals looking for clinical
assistance could be experiencing sorrow,
implying that somewhere in the range of 23
million might be needing psychological
wellness care at some random time. India
likewise has probably the most noteworthy
pace of self-destruction on the planet,
losing more than 220,000 per year as
indicated by World Health Organization
information; an understudy ends it all
consistently in India.
The treatment hole for emotional well-
being in India is faltering, with scarcely
5,000 specialists and 2,000 clinical analysts
in a nation of 1.3 billion. Mental
consideration represents a minuscule 0.06%
of India's human services spending plan. In
Bangladesh, the number is at 0.44% not
endlessly higher, yet it's despite everything
better.2
One of the biggest tragedies faced in the
country in the field of mental health is the
Erwadi Tragedy, 2001- Erwadi fire incident
is an accident that occurred on 6 August
2001, when 28 inmates of a faith-based
mental asylum died in the fire. All these
inmates were bound by chains at Moideen
Badusha Mental Home in Erwadi Village in
Tamil Nadu.
India’s outlook towards mental illness:
The what-will-human say mindset is far-
reaching to such an extent that some town
programs have connected mental
administrations to the nearby sanctuaries
with the goal that individuals can look for
help in the pretence of strict action to stay
2 Vikram Zutshi, India’s attitude towards mental
health issues is depressing, Qrius (July 4, 2020, 6:45
AM), https://qrius.com/indias-attitude-towards-
mental-health-issues-is-depressing/ 3 Vikram Zutshi, India’s attitude towards mental
health issues is depressing, Qrius (July 7, 2020,
away from the disgrace of presentation.
This mindset is proliferated in no little
measure by the harsh and musically
challenged perspectives toward
psychological well-being. For example,
Indian government officials and open
characters frequently scorn their rivals by
weaponising terms like "imbecilic," "hard
of hearing," "intellectually not well,"
"impeded," “bipolar," "incapacitated,"
"dyslexic" and “schizophrenic.”3
Psychological wellness circumstance in
India requests dynamic approach
intercessions and asset assignment by the
legislature. To decrease the disgrace around
psychological wellness, we need measures
to prepare and sharpen the network/society.
This can happen just when we have
steadiness across the country exertion to
teach the general public about mental
ailments. We additionally need steps to
interface the patients with one another by
framing an organization, so they could tune
in and bolster one another. Besides,
individuals encountering emotional well-
being issues ought to get similar access to
sheltered and successful consideration as
those with physical medical issues.
Furthermore, dysfunctional behaviour
should compulsorily be put under the ambit
of extra security. This will help individuals
to see psychological instability with a
similar focal point as they use for physical
maladies.4
10:45 PM), https://qrius.com/indias-attitude-
towards-mental-health-issues-is-depressing/ 4 Dr. Ramon Llamba, What India must do to solve
its mental health crisis?, The Economic Times, (July
8, 2020, 4:30 PM),
https://health.economictimes.indiatimes.com/news/
industry/what-india-must-do-to-solve-its-mental-
health-crisis/74314862
https://qrius.com/indias-attitude-towards-mental-health-issues-is-depressing/https://qrius.com/indias-attitude-towards-mental-health-issues-is-depressing/https://qrius.com/indias-attitude-towards-mental-health-issues-is-depressing/https://qrius.com/indias-attitude-towards-mental-health-issues-is-depressing/https://health.economictimes.indiatimes.com/news/industry/what-india-must-do-to-solve-its-mental-health-crisis/74314862https://health.economictimes.indiatimes.com/news/industry/what-india-must-do-to-solve-its-mental-health-crisis/74314862https://health.economictimes.indiatimes.com/news/industry/what-india-must-do-to-solve-its-mental-health-crisis/74314862
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India with a populace of more than a billion
houses, is one of the most noteworthy
numbers of - intellectually sick people, who
require long haul care. With under 10%
accessibility of the in-patient care required
for exceptionally sick patients and short of
what one therapist accessible for one lakh
Indians, the gap between assets and
prerequisites still remains excessively wide.
Because of this wide gap, an enormous
number of mental patients don't get
sufficient treatment and experience the ill
effects of long-standing sickness and
coming about of incapacity. A huge number
of the patients who do manage to reach the
brighter side of this illness, arrive so late,
that by then the disease gets incessant and
impervious to treatment.
Nexus between mental health and law:
The laws influencing Mental Illness are
often categorised in the following manner -
‘Hard’ and ‘Soft’ Laws.
A. "Hard" laws allude to laws that are official and enforceable globally or locally. In
India, some of the hard laws about mental
health include The Mental Health Act,
1987; The Protection of Human Rights Act,
1993; Persons with Disability Act, 1995;
The National Trust Act, 1999; Protection of
Women from Domestic Violence Act,
2005; Protection of Children from Sexual
Offences Act, 2012, and related legislation.
Prominent statutory legislation regulating
narcotics is the Narcotic Drugs and
Psychotropic Substances (NDPS) Act
1985.5
B. "Soft" laws, in turn, are not official. Be that as it may, these laws if all around built and
mirror an expansive agreement can turn
into a model for future enactment. To
explain this in simpler words, soft laws are
5 Pratima Murthy, B. C. Malathesh, C. Naveen
Kumar, and Suresh Bada Math, Mental health and
the law, PMC (July 5, 2020, 8:25 AM),
not laws, they are simply rules or policies
that are quasi-legal and not binding. It is
argued that these policies could become
permanent over the due course of time.
Some examples include the National
Mental Health Policy 2014 and the National
Mental Health Programme.
There have been a few amendments over
the course time, some of such revisions may
happen to improve the law, right blunders,
improve value, make the arrangements
progressively severe, or to ensure that the
law is consistent with international
conventions.
Indian laws regulating treatment of
persons with mental disorders:
The connection between psychiatry and law
frequently becomes an integral factor at the
hour of treatment of PMI (person with
mental illness). Treatment of PMI
frequently includes a decrease in individual
freedom of mental patients. The vast
majority of the nations in the World have
laws managing the treatment of mental
patients. Although there are intricate
portrayals of different types of mental
issues in different treatises in Ayurveda, the
consideration of the intellectually sick in
the refuges in India is a British
development. After the takeover of the
organization of India by the British crown
in 1858, countless laws were ordered with
hardly a pause in between for controlling
the consideration and treatment of
intellectually sick people in British India.
Some of these laws are:
1. Mental Health Act, 1987: The MHA has had some positive features while the rest
have been the target of critic ever since its
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC52
82613/
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5282613/https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5282613/
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founding. It is claimed to be concerned
fundamentally with the lawful
methodology of permitting, controlling
confirmations, and guardianship matters of
PMI. Human rights issues and
psychological wellness care conveyance
are not appropriately tended to in this Act.
2. Persons with Disability Act, 1995: PDA-95 was ordered in 1995 to expel separations in
the sharing of formative advantages versus
non-crippled people and to forestall misuse
and abuses of people with incapacity
(PWD). It accommodated obstruction-free
condition and explained duties regarding
the administration to design procedures for
exhaustive improvement programs, to
exceptional arrangement for the
incorporation of PWD into the social
standard. Under PDA-95, mental
impediment and dysfunctional behaviour
are arranged as states of incapacities. Along
these lines, the PMI is qualified for benefits
accessible to PWD as given under the Act.
3. United Nations Conventions for Rights of Persons with Disabilities, 2006: UNCRPD
was adopted in December, 2006. It was
ratified by the Parliament of India in May,
2008. It is an international treaty which
identifies the rights of disabled people as
well as the obligations on Parliament and
the NI Assembly to promote, protect and
ensure those rights. It aims to ensure that
disabled people enjoy the same human
rights as everyone else and that they can
participate fully in society by receiving the
same opportunities as others.6
4. Indian Contract Act, 1872: According to Indian Contract Act, 1872, any person of
sound mind can make a contract. Section 12
of the Act stipulates that a person is said to
6 What is UNCRPD?, Equality Commission (July 8,
2020, 2:20 PM),
https://www.equalityni.org/Delivering-
Equality/Addressing-inequality/UNCRPD-
Disability/What-is-UNCRPD
be of sound mind for the purpose of making
a contract, if, at the time when he makes it,
he is capable of understanding it and of
forming a rational judgment as to its effect
upon his interest. A person, who is usually
of unsound mind, but occasionally of sound
mind, may make a contract when he is of
sound mind. A person, who is usually of
sound mind, but occasionally of unsound
mind, may not make a contract when he is
of unsound mind. It means a PMI who is
currently free of the psychotic symptoms
can make a contract, whereas a person who
is currently intoxicated or delirious cannot
make a contract.
5. Marriage and divorce: Under Hindu Marriage Act, 1955, conditions in respect
of mental disorders, which must be fulfilled
before the marriage, solemnised under the
Act, are as follows.7
1. Neither party is incapable of giving a valid consent as a consequence of
unsoundness of mind.
2. Even if capable of giving consent, must not suffer from mental
disorders of such a kind or to such
an extent as to be unfit for marriage
and the procreation of children.
3. Must not suffer from recurrent attacks of insanity.
CONCLUSION
"It's okay to not be perfect. It's okay to make
mistakes. It's okay to do something that you
hadn't done, because if we don't do those
things, we never grow."
-Dawn Stanyon
7 Conditions for a hindu marriage, India code (July
11, 2020, 9:55 PM),
https://www.indiacode.nic.in/show-
data?actid=AC_CEN_3_20_00004_195525_15178
07318992§ionId=38571§ionno=5&ordern
o=5
https://www.equalityni.org/Delivering-Equality/Addressing-inequality/UNCRPD-Disability/What-is-UNCRPDhttps://www.equalityni.org/Delivering-Equality/Addressing-inequality/UNCRPD-Disability/What-is-UNCRPDhttps://www.equalityni.org/Delivering-Equality/Addressing-inequality/UNCRPD-Disability/What-is-UNCRPDhttps://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00004_195525_1517807318992§ionId=38571§ionno=5&orderno=5https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00004_195525_1517807318992§ionId=38571§ionno=5&orderno=5https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00004_195525_1517807318992§ionId=38571§ionno=5&orderno=5https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00004_195525_1517807318992§ionId=38571§ionno=5&orderno=5
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In our nation, the disclosure of
psychological sickness is frequently trailed
by refusal and wavering to look for help.
Despite its gigantic social weight,
emotional wellness stays an untouchable
subject that is vulnerable to age-old marks
of disgrace, biases, and fears. Even though
psychological issues can be restored or
controlled, a great many people will in
general hide their issues away from plain
view and endure peacefully. In addition to
the fact that we need to effectively cultivate
mindfulness about psychological well-
being, we additionally need to make
mindfulness about the idiocy of the marks
of disgrace appended to emotional
wellness, to annihilate them.
The articulation "mental disorder" signifies
psychological sickness, captured or
deficient improvement of the brain,
psychopathic confusion, or some other
issue or inability of the brain and
incorporates schizophrenia. The
articulation "psychopathic disorder"
signifies a tireless issue or incapacity of the
brain (regardless of whether including sub-
typicality of knowledge) which brings
about strangely forceful or truly flighty
direct concerning the next gathering, and
whether it requires or is defenceless to
clinical treatment.
In the irrefutable setting that each general
public needs laws in different territories to
keep up the prosperity of its kin,
psychological well-being care is one such
significant zone that requires fitting
enactment.
Mental healthcare facilities can be
improved in our country by continuous
implementation of region psychological
well-being program in a staged way with
help of sufficient administrative and money
related data sources is the need of the day.
Prepared psychological well-being care
work force, treatment, care and restoration
offices ought to be made accessible and
available to the majority. This must be
made conceivable by the sharing of duty by
government and non government
associations devoted to the reason for
mental health.All the clinical schools of our
nation ought to have a different branch of
psychiatry to guarantee satisfactory
preparing of students and progressively
number of postgraduate psychiatry learners.
Our country can fight mental heath issues
unanimously when the community is well
versed with the problems. For example,
government and private players need
arrangements for emotional wellness
disease as they assume a huge job in helping
the general public to battle against it. An
unmistakable position on psychological
well-being will assist everybody in
acknowledging how genuine a danger it is.
Schools and universities need to deal with
psychological well-being mindfulness,
sharpening and distributed help to
guarantee that no individual feels so far
harmed that he/she concludes that life does
not merit living any longer.
Each division in our country needs
psychological well-being strength
preparing for individuals who are a piece of
that industry to manage the negative impact
of burnout just as harsh encounters to have
on our emotional wellness.
General emotional wellness strategy ought
to be presented and legitimised which
ensures that help is accessible to anybody
and every individual who is connecting
with others about close to home and expert
issues that weigh intensely at the forefront
of their thoughts and soul.
*****
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CYBERCRIME IS THE BANE OF
THE INTERNET: IS INDIA READY?
By Aarushi Chopra
From Amity Law School, Noida
Scope of the Article
Statement of problem:
This article highlights the issue of the
increasing threat of cybercrime in India
with main emphasis on whether India is still
ready to deal and tackle with this growing
menace and what steps have been taken
place by the Indian government to deal with
this situation proactively.
Limitations:
Over the span of approving and examining
resources that the researcher has depended
upon, it has been unequivocally felt that the
ambit of this zone of law is still under
development, particularly in India
Introduction
Cybercrime is the bane of the internet and
new technologies generate new
opportunities of more innovative ways
of doing crimes and this threat is growing
multi fold in this new world of digitization
and growing technology. As the world is
becoming digital, crime is also moving
towards virtual space from physical space.
It is going through a massive change in its
modus operandi and it is going to multiply
whether we like it or not.
According to a study from the University of
Maryland, there is a cyberattack once every
39 secs. This shows how the technical
evolution have outpaced the defence as well
as security tactics of private organisations
and the governments all over the globe.
We are in this digital age where our virtual
identity has become an important aspect of
our day to day lives. We are now just a
bundle of numbers or codes in numerous
computer databases owned by corporations
and government. With the evolution of
cyberspace which is taking place at an
unprecedented pace, especially in the
developing economies, the exploitation of it
by utilising it in it’s true essence has made
people generate millions and millions of
dollars. Earlier, cyberthreats were hardly of
any value but now when we see it, it is
disruptive and has become rather
destructive. So with the scale of
cyberattacks increasing with each passing
day, not only India but all countries across
the globe cannot afford to ignore this threat.
What is Cybercrime?
Cybercrime refers to all the illegal activities
carried out by using technology as an
instrument. It is a criminal act which targets
a computer, network device or a computer
network.
An important feature of cybercrime is its
nonlocal character: acts can be done in
jurisdictions which are separated by vast
distances. This is also a severe problem for
law enforcement since international
cooperation is needed for previously local
or even national crimes now. For example,
if a person uses his computer to access child
pornography in a country which does not
ban child pornography, then is that
particular individual committing a crime in
a country where such data is illegal? Where
will cybercrime exactly take place?
Types of cybercrime:
Cyber criminals are professionals who are
very organised and use advanced
techniques. Others are just some novice
hackers. Hence, Cybercrime attacks can
commence wherever digital data exists,
along with an opportunity and motive.
Cybercrimes do not really occur in a
vacuum but are in fact distributed in nature.
Therefore, cybercriminals mainly rely on
https://www.britannica.com/topic/crime-law
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various other actors to finish the crime for
them like a malware creator who uses the
dark web to sell the code. They use
numerous attack vectors for the cyberattack
and are constantly developing to new
techniques for achieving their goals without
getting detected or arrested.
Most cybercrimes fall under the following
two categories:
I. Crimes that targets computer networks or devices (example: to
gain access to a computer)
II. Crimes using computers as an accessory to a criminal act
(example: online identity theft used
to steal funds from a bank account)
III. Crime using computer as a weapon for an attack (for example: DoS
attack -denial of service)8
Cybercrimes can be mainly bifurcated into
the following 3 kinds:
A. Cybercrime against persons (cyber harassment, online libel or slander,
child pornography, identity theft,
spoofing, credit card fraud)
B. Cybercrime against property (DDOS attack, hacking, theft of IP,
computer vandalism, computer
squatting, virus transmission)
C. Cybercrime against nations (cyber warfare, cyber vandalism)
The following are some standout
cybercrimes to watch out for:
1. Internet and email fraud 2. ATM fraud 3. Wire fraud 4. Software piracy 5. Botnets 6. PUPs 7. Exit scam
8 “Cybercrime types, examples, and what your
business can do”, exabeam,
8. Cyberextortion (demand of money to prevent a threatened attack)
9. Ransomware attacks (is a type of cyberextortion)
10. Crypto jacking (mining of cryptocurrency using resources not owned by hackers)
11. Cyberespionage (access of company or govt data by hackers)
Taking the example of Equifax, an
American credit monitoring company
was hit by a massive data breach which
impacted over 143 million customers. The
attackers found a vulnerability in Equifax’s
open source software which allowed them
to access all the sensitive files of the
company. The data stolen not only included
full names, birth dates, social security
numbers, addresses but also included
around 200,000 credit card numbers and
200,000 additional documents that
contained personal-identifying
information. Even the way in which the
breach was handled was widely criticized
which shows how there is a real need for
notification procedures for breaches.
Another example is the Uber breach where
hackers stole personal data of around 57
million riders and drivers. Uber paid the
attackers $100,000 to keep the data safe and
to keep quiet about the breach. The data
stolen included names of the riders and
drivers, their phone numbers and email
addresses. Even the driver’s license of some
drivers were stollen.
With the rapid increase in cybercrimes all
over the world, it has become a major threat
to all those who use the internet, with
millions of user’s data stolen over the past
few years. This has created a major dent in
many economies.
Is India Ready?
https://www.exabeam.com/information-
security/cyber-crime/
https://www.exabeam.com/information-security/cyber-crime/https://www.exabeam.com/information-security/cyber-crime/
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As India embarks on its journey to Digital
India, the challenge to address the issues of
cybersecurity needs to take place on a war
footing basis. Even companies are now
opting for cyber insurance policies. In fact,
according to the DSCI report, around 350
cybersecurity policies have been sold to
Indian companies till 2018, which is an
increase of 40% from those in 2017.9 But
certainly isn’t not enough since these
insurances can help cover losses only to
some extent and at the end of it the impact
of data breaches are not solely confined to
monetary losses.
The government of India has attempted to
form a cybersecure nation for all is citizens
and businesses. They had decided to launch
an updated version of the National
Cybersecurity Policy this year (2020),
which is all ready and will be announced to
the public soon as said by the National
Cybersecurity Coordinator Mr. Rajesh Pant
at an Assocham event. There were also a
few initiatives taken by the Indian
government in 2019 towards drafting of the
above mentioned policy:
1. CERT-in: Indian Computer Emergency Response Team
It is the National Agency developed to
handle the country’s cybersecurity. It
became operational in 2004 and its basic
aim is to respond to any computer security
incident when they occur, report its
vulnerabilities and to promote IT security
practices.
2. NCIIPC: National Critical Information Infrastructure
Protection Centre
9Shomiron Das Gupta, Is India Cybersecurity -
Ready In 2020?, Silicon India,
https://startup.siliconindia.com/viewpoint/ceo-
insights/is-india-cybersecurity-ready-in-2020-nwid-
23052.html
It was created by the central government
under Sec 70A of the Information
Technology Act, 2000 to protect
information infrastructure for critical
sectors of the nation from unauthorised
access, use, modification, disruption,
disclosure, etc. which include: power and
energy, telecom, transport, BFSI, strategic
and public enterprises.
3. Cyber Surakshit Bharat The Ministry of Electronic and Information
Technology (MeitY) launched this
initiative to spread awareness about
cybercrime, build capacity and enable
government departments on steps to be
taken for creating a cyber resilient IT set up.
It also aims at conducting workshops for
citizens as well as businesses to educate
them on the cybersecurity practices that can
be taken place.
4. Cyber Swacchta Kendra The Ministry of Electronic and Information
Technology (MeitY) launched this
initiative. It is a cleaning bot used for
analysing malware and detecting botnot
infections. It also aims at notifying, enable
cleaning and secure systems to prevent
further infections.
5. Personal Data Protection Bill, 2019
This is the most important initiative taken
by the Indian government. As the name
suggests, this bill aims to protect the
personal data of individuals in India from
being processed by government, companies
incorporated in India, foreign companies. It
also aims at establishing a Data Protection
Authority for the same.
https://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.htmlhttps://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.htmlhttps://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.html
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India also has an Information Technology
Act, 2000 (IT Act) which deals with
cybersecurity and cybercrimes. This act
provides protection for transactions taking
place through electronic interchange and
electronic communications. It also aims at
safeguarding electronic data, information,
records, and prevent any kind of unlawful
or unauthorised use of a computer system.
Cybercrimes like hacking, phishing, denial-
of-service attacks, malware attacks,
electronic theft and identity fraud are
specifically punishable under this act.
There are also some relevant rules which
are framed under the IT Act like:
i. The Information Technology (Reasonable security practices and
procedures and sensitive personal
data or information) Rules 2011 (the
SPDI Rules). It recommends
reasonable security practices and
procedures which can be
implemented for collecting as well
as processing personal or sensitive
personal data.
ii. The Information Technology Intermediaries Guidelines Rules,
2011, under which intermediaries
are required to implement
reasonable security practices and
procedures for making their
computer resources and information
contained in them secure.
There are other laws too that contain
provisions related to cybersecurity which
includes the Indian Penal Code, 1860 (IPC)
which punishes offences such as
defamation, cheating, criminal intimation
and obscenity even including the ones
committed in cyberspace, and then we have
the Companies (Management and
Administration) Rules, 2014 (the CAM
Rules) which are framed under the
Companies Act, 2013 requiring companies
to make sure that all security systems as
well as the electronic records are safe and
secure from any unauthorised access or
tampering.
Furthermore, there are also some sector-
specific regulations like the Reserve Bank
of India (RBI), the Department of
Telecommunication (DOT), the Securities
Exchange Board of India (SEBI) and the
Insurance Regulatory and Development
Authority of India Act, 1999, who have
mandated certain cyber security standards
that are to be maintained by their regulatory
entities like banks, telecom service
providers, insurance companies and other
listed companies.
Though India has taken a few steps and is
still taking more towards strengthening its
cybersecurity, it still needs to invest more
around this area, as these aforementioned
initiatives and laws can only help to an
extent. Strong legal foundation and policies
is the need of the hour. While we are
working on Digital India, we also need to
work more on cyber safety by making the
government, private institutions and
educational institutions work together.
Policies made by the government should
endure that both public and private entities
are equipped enough to tackle any
challenges of cybersecurity. Private entities
invest huge amounts on finding solutions
but it is needed to be understood with the
help and support from the government
which will make them well equipped to deal
with such incidents.
Besides all this, what also needs to be
looked into is the regulation of the role of
software developers and software product
companies. Such companies are pushing
software with evident vulnerabilities which
is easily exploited by cybercriminals. What
is even more important is the speed and
agility that is there while we counter these
crime. So to stay one step ahead of the
attacker, one needs to continuously adjust
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and improve and the technology needs to
constantly evolve.
Conclusion:
India is still way far behind and has to catch
up if it wants to be at par with other
developed countries on readiness
parameters of cyber security infrastructure.
More serious initiatives need to be taken
with a more focused and well-defined
approach along with a skilled cyber team.
Since cybersecurity is of national
importance, there is a need for more public
awareness-raising campaigns and
education so as to promote the training of
needed specialists in cybersecurity. Finally,
considering the global nature of cyber
threats, it is important to note that
cybersecurity cannot be addressed in
isolation and an international approach also
needs to be sought. The key elements to
achieve an effective approach in
cybersecurity is the coordination as well as
collaboration between various governments
and private sector entities from around the
globe. India has entered into various
cybersecurity related bilateral agreements
with various countries and we hope more
such agreements will be signed soon.
To make Digital India crime free, we need
a two-pronged approach, where firstly, we
establish a nationwide hygiene campaign to
pre-empt attacks likely to occur due to
human error and secondly, we need to
strengthen existing laws and enforce them
procedure on security agencies. Therefore,
with sufficient amount of nationwide
awareness on cybersecurity, strong policies
and initiatives, India will definitely be able
to fight major cyber threats more efficiently
and effectively, avoiding heavy damages.
References:
1. “Cybercrime types, examples, and what your business can do”,
exabeam,
https://www.exabeam.com/informa
tion-security/cyber-crime/
2. Shomiron Das Gupta, Is India Cybersecurity - Ready In 2020?,
Silicon India,
https://startup.siliconindia.com/vie
wpoint/ceo-insights/is-india-
cybersecurity-ready-in-2020-nwid-
23052.html
*****
https://www.exabeam.com/information-security/cyber-crime/https://www.exabeam.com/information-security/cyber-crime/https://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.htmlhttps://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.htmlhttps://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.htmlhttps://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.html
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ANALOGOUS SCRUTINY OF REAL
ESTATE LAWS IN INDIA AND
BRITAIN
By Aditi Joshi and Tushar Kumrawat
From Indore Institute of Law
ABSTRACT
Real estate law is the field of law that
governs purchasing, using and selling of
land precisely. This law is related to how
people acquire property and how they make
use of the property they own. Real estate
law is also known as real property law.
Different countries have different laws
relating to real estate. In the following write
up we are going to have a comparative
analysis between the real estate laws
between India and United
Kingdom/Britain.
Introduction
It is called “Real” estate because it is related
to real property. Real property is land in
contrast with personal property or assets
like jewellery, objects, vehicles, etc.
Fixtures that lies above the land and are
attached to it, such as buildings and other
structures are a part of real estate.
Before the mid-nineteenth century, the
standards governing the transfer of real and
individual property on an intestacy were
very unique. In spite of the fact that this
division doesn't have a similar importance
any longer, the difference is still significant
due to the fundamental differences between
the two categories. An example is the real
fact that land is immovable, and in this
manner the guidelines or the laws that
governs it must differ by mode of its
utilisation. A further purpose behind the
10 Real estate law, Justia
(https://www.justia.com/real-estate/)
differentiation is that rules of the legislation
is often drafted employing the traditional
terminology.
The division of land and assets has been
condemned as being not acceptable as a
reason for arranging the standards of
property law since it focuses consideration
not on the proprietary interests themselves
yet on the objects of those interests.
Real property can be classified into:
1. corporeal hereditaments – tangible real property (land or other
structures)
2. incorporeal hereditaments – intangible real property ( an
easement of way, etc)
There are various aspects of this law like
purchase financing, zoning, title, deeds,
taxes and estate planning, etc.
Real estate law is closely tied to various
other areas of law For example, the sale of
real estate is governed by the contract law,
and mandates that such contract be in
writing. There are various specific types of
torts and crimes that apply to real estate. For
example, trespass refers to entering the land
of another without authority to do so, and it
can be a crime or the subject of a civil
lawsuit. Real estate is also subject to special
provisions in family law, such as the rights
of a spouse in the marital home.10
Real estate in India is administered and
impacted by a unique combination of State-
specific and Federal laws, whereas real
estate in Wales and England are majorly
governed by two main pieces of legislation,
The law of property Act, 1925 and The land
Registration Act, 2002.
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There are several land related laws in India,
the same is with many other countries.
Every law has a different and separate
function in protecting rights to land.
Talking about India.
1) Transfer of Property Act, 1882- A Central Act that provides general and basic
principles of movable as well as immovable
property, for example lease, mortgage, sale,
exchange, part performance and lis
pendens.
The states are required to adopt the
provisions of this Act.
2) Registration Act, 1908 and Indian Stamps Act, 1899- These Acts govern laws
relating to requirement for registration of
various deeds, instruments as well as
documents relating to transfer of interest in
immovable property and payment of stamp
duty.
3) Indian Easement Act, 1882- The laws relating to easementry rights to immovable
property are governed under this Act.
4) The Indian Contract Act, 1872- The laws related to contracts in India are governed
under this Act such as capacity to enter into
contract, execution, implementation,
breach and remedies available, etc.
5) Land Revenue Codes- There are many states in India who have formulated their
own land revenue codes by which laws
relating to agricultural land-holding, types
of tenancy, land revenue etc are governed.
6) The Real Estate (Regulation and Development) Act, 2016 (RERA)- RERA
governs development, marketing and sale
of real estate developments and projects in
11Real Estate Laws In India (
https://www.lawsenate.com/publications/articles/re
order to protect interests of purchasers in
the real estate sector.
Some of the features of RERA are as
follows:
a) Under this Act, each state needs to establish a Real Estate Regulatory Authority. The
authority can be approached by the
purchaser in the event of any complaints
against a developer.
b) According to this Act, it is compulsory to enlist each under development property
where land is over 500 sq. meter or
incorporates eight apartments.11
c) Neglecting to enrol and register project under authority ambit may prompt
punishment up to 10% of the project cost.
d) As a purchaser, you have to pay just for carpet area and not for an overly built
region.
e) The manufacturer needs to put 70% of the cash got from the purchaser into an
alternate record. This cash will be
withdrawn when the project is completed.
This will stop misbehavior of manufacturer
of utilizing cash raised for one anticipate for
another undertaking.
f) The builder should give five-year guarantee to any auxiliary deformities in the structure.
g) The developer needs to distribute all right data about the project, for example, venture
plan, design, endorsement of the
administration, land title and anticipated
date of fulfillment. This data ought to be
accessible with RERA.
7) Foreign Exchange Management Act, 1999- FEMA governs the sale and purchase
of immovable property in India by various
foreign entities.
Real estate laws in England
al-estate-laws-india.pdf) Accessed on 26/07/2020 at
3:50 pm
https://www.lawsenate.com/publications/articles/real-estate-laws-india.pdfhttps://www.lawsenate.com/publications/articles/real-estate-laws-india.pdf
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There are two main pieces of legislation
that underpin Real estate in England and
Wales:
The Law of Property Act, 1925 and the
Land Registration Act, 2002.
The former one introduced some major
reforms in the Real estate sector and also
consolidated and modernised pre-existing
real estate laws.
The ownership of land, many of the rights
and obligations which are related to it must
be registered at the Land registry, which is
a government agency. The regime of land
registration is given under the Land
Registration Act, 2002 and related
regulations.
However, it is to be noted that these two
Acts are not at all all-inclusive. There are
other legislation that governs various
aspects of the real estate law for example,
the execution formalities for contracts and
deeds.
Relevancy of International laws to real
estate
Indian perspective:
Several concepts or principles recognised
under International law have been
historically adopted in some or the other
form in the various legislations which
govern real estate in India for example,
rights of agriculturalists to fair
compensation in case of acquisition of
lands by the Government of India.
However, International laws do not have a
direct applicability in India.12
UK perspective:
The real estate sector is governed by the
laws of domestic jurisdictions. Due to
which, legal formalities and requirements
relating to real estate are left untouched by
International Laws. However, transactions
12 Supra.1
relating to real estate are not ring-fenced
and various areas of real estate have an
International element. For example,
Environmental policies and laws in the UK
often derive a web full of International
agreements.
Ownership
Indian perspective:
There was a time when right to property
was recognised as a fundamental right
under the Constitution of India but now, it
is a constitutional right and not a
fundamental right. Article 300-A of the
Constitution mandates that no person shall
be deprived of his property save by
authority of law, embodying the doctrine “
eminent domain” which provides for the
acquisition of private property by the
government in the interest of public.
Also, States are given the power to legislate
as well as impose legal restrictions on the
ownership of lands by various classes of
people such as- land owners with leasehold
rights, cultivation rights, transferable or
non-transferable rights, mortgagees, land
owners belonging to SC/ST categories, etc.
We may also find that in certain states,
ownership of real estate has been limited
such that non-agriculturalists are not
allowed to buy agricultural lands in that
state.
Further, under the current foreign exchange
norms, no person living outside India can
acquire any immovable property within
India, except if permitted.
UK Perspective:
Any person who is above the age of 18,
whatever his nationality may be is eligible
to buy and sell freehold property without
any restriction.13
13 A Brief Legal Guide to Investing
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Types of Rights over land
Indian Perspective:
Wide variety of rights over land are
recognised in India and they vary diversely
in their nature. They are-
a) Freehold Rights: These refer to absolute right, title and interest of land against the
world.
b) Leasehold Rights: These rights refer to absolute rights and interest to hold and use
a property by a tenant or lessee, as per the
terms of the lease deed for a fixed tenure.
These are rights in rem.
c) Licence Rights: These refer to right of a licensee to occupy or use a property on a
non-exclusive basis. Here, no easement or
interest is created in the proipertry in favour
of the licensee. These are rights in
personam.
d) Easement Rights: These refer to the right which the owner or the occupier of the land
possesses for the purpose of enjoyment of
land. One such example can be right of
passage.
e) Development Rights: These are unused rights which allow builders to make
changes to their property within the limits
imposed by the local authorities or the
government.
f) Subsurface Rights: These are the rights to the earth below the land and any such
substance which can be found under the
surface.
UK PERSPECTIVE:
There are different categories of rights over
immovable property which are recognised
in England and Wales, some of which are
as follows:
in Real Estate in the UK (
https://www.mayerbrown.com/-
/media/files/perspectives-
events/publications/2015/02/a-brief-legal-guide-to-
investing-in-real-estate-
in/files/brieflegalguidetoinvestinginrealestateinuk/fi
a) Ownership Rights: Under this there are three types of ownership interest: Freehold,
Leasehold and Commonhold.14
b) Legal Rights: They must be created by deed such as legal charges.
c) Equitable Rights: Many of these are created by contract such as agreement of sale.
d) Other Rights: These may contain rights that arise without any documentation. For
example perspective rights.
System of Land Registration
Indian Perspective:
Indian law does not stress upon registration
of the title or the land. Instead, it focusses
on the registration of the documents under
which the title is transferred in accordance
with the Registration Act, 1908.
UK Perspective:
In England and Wales, every unregistered
land must be registered on occasion such as
grant of lease, grant of mortgage, and the
grant of lease for more than seven years.
CONCLUSION
As striking as the outcomes of this analysis
may be, the fact is that the organisation of
assets across international borders is also
equally risky. Appropriate means of
protection are an exact, individual
clarification, a tax ruling and, where
appropriate, a tax contract. Legal,
descriptive, analytical and comparative
procedures have been deployed in order to
govern the likely impact of technological
change on the dissemination of legal risk
with particular reference to India and UK.
The impact is the extent to which a change
in transactional process may inadvertently
leattachment/brieflegalguidetoinvestinginrealestatei
nuk.pdf) accessed on 29/07/2020 at 12:45 pm 14 Ashurst, Real estate rights and registration in the
United Kingdom
(https://www.lexology.com/library/detail.aspx?g=e
f7e38a9-973c-47c0-bcf8-9bdf69b230d0)
Accessed on 01/07/2020, 4:05 pm
https://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.lexology.com/library/detail.aspx?g=ef7e38a9-973c-47c0-bcf8-9bdf69b230d0https://www.lexology.com/library/detail.aspx?g=ef7e38a9-973c-47c0-bcf8-9bdf69b230d0
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affect risk. Risk being the significance of
change and the likelihood of that
consequence having a adverse effect.
*****
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ANALYSIS OF JAMMU AND
KASHMIR DOMICILE LAW
By Aditya Hawaldar
From Maharashtra National Law
University, Mumbai
Abstract
On 5th August 2019, two Jammu and
Kashmir specific provisions, Article 35-A
and 370, were abrogated and diluted
respectively and the Jammu and Kashmir
Reorganisation Act, 2019 was passed. As
per the provisions of this act, the State of
Jammu and Kashmir was reorganised and
re-constituted into the Union Territory of
Jammu and Kashmir and the Union
Territory of Ladakh. The reorganisation
prompted fears of demographic change in
Jammu and Kashmir in absence of a state
domicile law which would shield the local
residents of J&K from outside competition
in education and employment. Taking
cognizance of the public opinion, the
Central Government enacted the Jammu
and Kashmir Reorganisation (Adaptation of
State Laws) Order in April 2020, which
introduced new eligibility criteria for the
grant of domicile status in the territory by
inserting a new section dedicated to the
same in the Jammu and Kashmir. This
paper aims to analyse whether the new
domicile law sufficiently protects the rights
of locals in employment, employment and
acquisition of land. To this effect, the paper
begins with a thorough explanation of the
concept of domicile as it has evolved in
English common law and Indian case law.
This is followed by a brief account of
eligibility criteria for domicile status in
different Indian states and an enumeration
of the law’s salient features, which also
15 Dicey, A., Morris, J., Collins, L. and McClean, J.,
1949. Dicey And Morris On The Conflict Of Laws.
6th ed. London: Stevens, p.87.
includes comparisons with the previous
law. Lastly, the paper offers a critical
perspective on the law and suggests
possible modifications / suggestions which
would assist in fulfilling the law’s