TAYLJ Vol 1 Issue 1

Truth & Youth
Law Journal
March, 2021
Volume 1, Issue 1
Expert Editorial Board
Editor-in-chief:
Dr. Brundaban Panda
Honorary Editor-in-chief:
Solicitor Jonathan Lim
Essama Chiba
Senior Editors:
AAG Ashutosh Anand
Prof. (Dr.) Mohd. Salim
Adv. Aastha Chadha
Adv. Abhishek Kamal
Student Editorial Board
Chief Student Advisor:
Rishi Raj Mukherjee
Student Editors:ò
Ashutosh Anand
Kaustubh Kumar
Mukund Ranjan
Nilanjana Saha
Pratham Singh
Rachna Kumari
Rajat Tanwar
Saumya Raj
Publishers:
Dipendu Das
Debarati Pal
Special thanks to:

Kabir Jaiswal
Harsh Mishra
Raj Shekhar
Anirudh P. Chandra
Ravi Ranjan
Kinshuk Sharma
Himanshu
Editorial Note
This issue will always hold a special position in the hearts of all
individuals associated with Truth and Youth. It is really
overwhelming to see the immense amount of hard work that the team
as well as the contributing authors have put in for the successful
release of the issue. The dreams that follow are even larger and it is the
zeal in these young students that keeps me engaged with them all
through the course of the activities taken up by them.
Recalling the first day that the team members had begun ideating the
release of the issue, I remember the great deal of confusion and
insecurities in their minds. The thought of the journal being in its
nascent stage always kept them on the edge but their perseverance
surpassed their diffidence.
Being closely connected to a number of students pursuing law,

provides me with the opportunity to expose myself to their ideas and
it awes me to see the efforts put in by all budding legal professionals in
general. I wholeheartedly wish, success comes chasing them in this
field and they propagate lawful inspiration on all citizens of the
nation.
- Aastha Chadha,
Advocate, High Court of Delhi
“It was pleasing to see the quality of submissions received for this issue. I appreciate the
young budding law students working hard to harness their skills.”
- Jonathan Lim,
triple qualified English solicitor
“I am impressed to see the coordination that the Administrative Body perseveres between
the contributing authors and the review members in order to complete the two-step review
procedure efficiently.”
- Essama Chiba,
retired Egyptian author and journalist
“Nothing is impossible on earth by the active influence of youth. Good wishes go for a
bright future for TAY. The contribution of time and efforts by the Student Editorial Board
is worthy of appreciation. The team was pivotal in selecting the best papers out of numerous
submissions for this issue.”
- Dr. Brundaban Panda,

Founder Principal of Khordha Law College and former Principal of Capital Law
College
“I am amazed to see the number of contributions covering almost all areas of law. This
definitely reflects the enthusiasm to excel in legal writing among these young authors.”
- Abhishek Kamal,
Advocate at Supreme Court of India and Delhi High Court
Cite this Volume as:
1 (1) TAY L.J. <page no.> (2021).
Disclaimer
All opinions, discussions, views and recommendations as to legal
stance, rights, etc. are solely those of the authors and not of the
Truth and Youth Law Journal (TAY L. J.) or its publishers. TAY
and its editors, publishers or partners make no representations or
warranties with respect to any opinion, direction, or advice of
legal/common nature or deliberation by any person following the
information offered or provided within or through the TAY L.J.
The journal and its publishers will not be liable for any direct,
indirect, consequential, special, exemplary, or other damages
arising therefrom.
1
The Right to Physical Hearing in International Arbitration in
Times of Pandemic
- Aparna Mallick
13
Bayer Corporation v. Union of India– A Fight between Necessity and
Cupidity
- Sivananda R.
21
The Ever-Mounting Crime of the Connected World: Identity
Theft
- Susan Joshy
30
Procedural Requirements for Performance of Marriage under The
Special Marriage Act, 1954
- Abhigna Valusa
40
Provisions Concerning Extra Territorial Jurisdiction Under the
Information Technology Act, 2000
- Sparsh Jain
49
Hong Kong: A Land Which Neither Let’s You Stay, Nor Let’s You
Leave
- Parishi Jain
54
The Legality of Prostitution in India: An Extensive Analysis
- Divvela Jyothirmai Anusha
TRUTH AND YOUTH LAW JOURNAL VOLUME I ISSUE 1
The Right to Physical Hearing in International Arbitration in

Times of Pandemic
- Aparna Mallik
3rd year KIIT School of Law, KIIT Deemed to be University.
Abstract
The Remote hearing adopted the virtual hearing the most tangible impact of COVID-19 on the
arbitration. Across the globe the COVID-19 has sparked the global economy, political, societal
and has affected almost every facet of our lives. Arbitration has too no escape, it has to push out
from its comfort zone and adopt certain alternatives as virtual hearing. The arbitration rules and
national laws got a reality check for the immediate crises and proposed procedural and analytical
frameworks for remote hearings in International Arbitration. This article deals with the problems
as well as the solutions of the parties, counsel and witnesses grievances regarding the remote
hearing procedural. Furthermore, UNCITRAL arbitration rules in this crisis justify the right to be
heard. In Article 28(4) of UNCITRAL Law have specified that the arbitral tribunal may direct
witnesses and expert testimony to be examined through means of telecommunication, the parties
needed not to be physically present at the hearing. Further this article tests the potential challenges
to awards which is based on remote hearing, and parties allegations on the breaches of parties’
right to be heard and treated equally.
1|P a g e ©TRUTH AND YOUTH 2021

Introduction
Arbitration is a concept widely accepted in the legal system, where a different approach reflects in
the entire legal system. International arbitration is known to be the hybrid form of International
dispute resolution. The COVID-19 is one of the most significant contractions of the global
economy and it creates an adverse impact in every sector. So the arbitration proceedings have not
been immune from this effect as well. It led to adoption and promotion of electronic management
of tools. There is also a compulsion on the arbitral tribunals and parties to convene virtual hearing.
It is essential that the tribunals and the parties to be informed well mannered in which the
arbitration proceedings conduct. It is also equally important that the practitioners and arbitral
tribunal become familiar with the new resources which are available in this pandemic, particularly
electronic gears.
In April 2020, the ICC issued guidance note “possible measures aimed at mitigating the effects of
the covid-19 Pandemic”1. A group of leading international arbitral institutions2 issued a cumulative
statement seeking to promote stability and certain unstable economic environment caused due to
Pandemic, simultaneously assuring the users of arbitration that “pending cases may continue and
that parties may have their cases heard without undue delay”. In the first quarter of 2020 the SIAC
tribunals conducted the preliminary case management over telephonic and virtual conferences.
Aside, from the dramatic change in the landscape of arbitration, SIAC tribunals have successfully
executed numerous hearings remotely, which certainly includes the emergency interim relief and
evidentiary hearing.3
1
ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic,
International Chamber of Commerce.
2
The statement was joined, inter alia, by: the German Arbitration Institute (“DIS”); the International Court of
Arbitration of the International Chamber of Commerce (“ICC”); the American Arbitration Association (“AAA”)
and its International Centre for Dispute Resolution (“ICDR”); the International Centre for Settlement of
Investment Disputes (“ICSID”); the Korean Commercial Arbitration Board (“KCAB”); the London Court of
International Arbitration (“LCIA”); the Milan Chamber of Arbitration (“CAM”); the Hong Kong International
Arbitration Centre (“HKIAC”); the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”); the
Singapore International Arbitration Centre (“SIAC”); and the Vienna International Arbitral Centre (“VIAC”).
This Alert Memorandum will also address the Swiss Chambers’ Arbitration Institution (“SCAI”).
3
Chahat Chawla, International Arbitration During COVID-19: A Case Counsel's Perspective, Kluwer Arbitration
Blog (June 4, 2020), arbitrationblog.kluwerarbitration.com/2020/06/04/international-arbitration-during-covid-
19-a-case-counsels-perspective/?doing_wp_cron=1591731619.7565040588378906250000.

In accordance with all forms of remote hearings, the parties and tribunals must assess relevant
regulatory framework. The national laws and arbitration rules contain specific provisions in remote
hearing, it certainly allows the tribunal to effectuate hearings remotely.4
The arbitral tribunals have the power to decide on the remote hearings to grant under a specific
rule. Most national laws are silent on remote hearing. In the absence of any agreement between
the parties for remote hearing the onus of proof is upon the party applying it and one resisting it.
In the US, the federal rules of evidence under the rule 43 provides that in good cause and situation
compelling the court may permit testimony in open court by contemporaneous transmission from
different locations.5 In Australia, the test of court is silent in the statutory provision but it provides
that it possesses the power of remote hearing. It has the liberal test of allowing remote hearing in
any absence of considerable impediments.
On July, 2020 the Swiss Federal Tribunal issued a decision holding that the Pandemic does not
serve as a sufficient reasoning to thrust virtual hearings6 in court proceedings against the will of a
party. In UNCITRAL law connotes “hearing can be held in-person or remotely via technological
impediments.”7 The discretion is upon to hold a hearing in-person or remotely is on the issues at
stake, the desirability of witnesses and experts.
Statutory and Regulatory Framework of Remote Hearing
The specific provision and regulatory framework of remote hearing assessment completely
depends on chosen arbitration rules and applicable regulatory framework imposing the arbitration
agreement of the parties. There is no such right which imposes or prohibits remote hearing in any
national law or arbitration rules. If such remote hearing, national law or arbitration rules contain
4
“Dutch Civil Procedure Code, art. 1072b(4); UNCITRAL Arbitration Rules 2010, art. 28(4); London Court of
International Arbitration (LCIA) Rules, Art. 19.2; International Commercial Arbitration Court at the Chamber of
Commerce and Industry of the Russian Federation (ICAC) Rules.International Centre for Dispute Resolution
(ICDR) International Arbitration Rules, art. 20.2; Singapore International Arbitration Centre (SIAC) Rules, Art.
21.2; Arbitration Institute of the Stockholm Chamber of Commerce (SCC) Rules, Art. 28(2)”.
5
Rule 43(a) of Federal Rules of Evidence on taking the testimony.
6
Supra note 3.
7
UNCITRAL Notes on organizing Arbitral Proceedings, United Nations New York (2016),
www.uncitral.org/pdf/english/texts/arbitration/arb-notes/arb-notes-2016-e.pdf.

specific provision they are in permissive terms. There is no such National laws or arbitration rules
that is a mandate for remote hearing binding on the parties.
Few national law and arbitration contain provisions on remote hearing. In respect of pandemic
procedural rules were challenging for the claimants and arbitral institution as well. There was a
thread emerged in the midst of a pandemic of submission of requests for arbitration by electronic
mediums. Both ICC8 and AAA/ICDR9 mandates electronic submissions of request of arbitration
and any emergency documents. Article 1072b(4) of Dutch Civil Procedure Code provides that
“instead of a personal appearance of the a witness, an expert or a party, the arbitral tribunal may
determine that the relevant person have direct contact with the arbitral tribunal and insofar as
applicable, with others by electronic means”, so “the arbitral tribunal shall determine, in
consultation with those concerned which electronic means shall be used to this end and in manner
this shall occur.”10 The LCIA11 rules states that “the arbitral tribunal shall have the fullest authority
under the arbitration agreement to establish the conduct the conduct of a hearing, including
hearing take place by video or telephone conference or in person”12. Article 28(4) of UNCITRAL
(United Nations Commission on International Trade Law) rules provides that the witnesses and
experts may be heard remotely. As well remote hearing does not include for legal arguments under
the UNCITRAL Rules, and for any hearing of non-emergency arbitration or non- expedited merits
under ICC Rules. There is an irony that the UNCITRAL Rules brings out as it's difficult to
conceive the denial of legal arguments but testimony by witnesses or experts can be allowed
remotely. Moreover, the ICC Rules promotes the use of alternatives of physical hearing efficiently
with limited time and cost of consumption.
Most of the national law and arbitration rules is not expressive on the remote hearing it get in a
form permissive term. The right to a hearing is a fundamental right in international
8
See ICC, “urgent covid-19 message to DRS community ” dated (Mar. 17, 2020).
9
See AAA/ICDR, “Covid-19”.
10
Dutch Civil Procedure Code, art 1027b(4).
11
London Court of International Arbitration rules.
12
LCIA Rules, Art. 19. 2.

arbitration13.There is always a provision on the discretion of parties to request for a hearing 14 or

the parties to be agreed to arbitration on documents basis only. According to some authors,
remote hearings do not meet the threshold requirement for hearing in National laws or Arbitration
Rules. However, answering why a remote hearing would not reach these requirements even
applying international arbitration proceedings?. The first argument would be the physicality of the
parties, in the exchange of arguments or evidence is simultaneous. The party should get a live
mode of discussions. Then the next argument would be the very essential that is the
communication technology, there must be vivid transmission of audio and video. The ICC has
made explicit on the Guidance Note of COVID-19 that the requirements can be met by remote
hearing.15 In Article 24(2) of ICC rules is referred to as a gearing of various participants exchanging
arguments or evidence “in person” with each other, irrespective of any physical meeting or
remotely.
Remote Hearing in Absence of Parties Agreement
In this part of it deals with the cases where one party requests for a remote hearing contrarily the
other party opposes the procedure and asserts for a physical hearing. In this scenario, the arbitral
tribunal has to be considerate and balance on the importance of right to be heard equally16 and the
tribunal's obligation to conduct the proceedings in an expeditious course of action.17
i. Tribunal’s Power to order for remote hearing:Two parties in conflict on remote hearing the
tribunal have to decide to conduct remote hearing. This decision is viewed on the basis of the
right to request a hearing. As detailed before some of the national laws and arbitration laws
have the principle . In Article 25(2) of ICC Rules it is provided that “the arbitral tribunal shall
hear the parties together in person if any of them so requests” which does not bar the parties
13
The UNCITRAL Arbitration rules: A commentary 601( 2013).
14
Swedish Arbitration Act, § 24(1), Arbitration Law of the people’s Republic of China Art. 47.
15
“Guidance Note on Possible Measures Aimed at Mitigating the Effect of the COVID-19 Pandemic”, ICC (9
Apr. 2020).
16
The UNCITRAL Arbitration rules: A commentary 601(oup 2013).
17
Dutch Civil Procedure code art 1036, English arbitration act Section 33(1)(1), French Civil procedure code Art.
1510, Swiss Private International Law Act, Art. 183(3).

from remote hearing procedure in absence of any agreement between the parties’. ICC
Guidance Note held that “if the parties agree, or the tribunal determines implies the possibility
to proceed with remote hearings in the absence of parties’ agreement.18” Though there is the
power of the tribunal to conduct remote hearing still its stands incorrect as there is
unrestricted power provided to the tribunal. The tribunals must be careful along with all the
circumstances to determine whether a remote hearing is appropriate in the specific
circumstances or case.
ii. Onus on the party one applying for Remote Hearing and the party resisting the remote
hearing: There is an important question of the party having the onus of proof. The party bears
the onus of proof as to whether a remote hearing should proceed and to which party should
bear onus of proof to be upon the discretion of the Courts. As earlier, its mentioned that
remote hearings are not specific to international arbitration19. In the case Anil Sawant v.
Geoffrey Ramsey20 the onus of showing “compelling circumstances” which the party applied
for remote hearings. In the case of Australian Medical Imaging Pty ltd. v. Marconi Medical
system Australia pty ltd.21 The court applied a stringent test imposing the party to test onus
of proving why it would be necessary for the party to apply for remote hearing. So there could
be an intermediate solution whereby the court does not require to have either to show for or
against the conduct of remote hearing. But it could be the most effective provision and
solution for court and parties to remote hearing with the consent of parties.
Witness and Expert Testimony
If there is a remote hearing of testimony and witness the question arises whether their cross-
examination is effective as to where the witness or expert is physically present?. It would be an
uncertainty to access the credibility of witness or testimony as of no verbal cues and trick to
scrutinize the person’s witnesses. The National courts sometimes refer to the essence of oral
18
ICC, Gudiance Note.
19
Supra note 3.
20
Civil Action No. 3:07–cv–980 (VLB).
21
(2001) 53 NSWLR .

exchange between the parties, witnesses and counsel22, and it stated that technical difficulties “are
considerable and markedly interfere with the giving of the evidence and particularly, with cross
examination.23
In Article 28(4) of UNCITRAL Law have specified that the arbitral tribunal may direct witnesses
and expert testimony to be examined through means of telecommunication, the parties needed
not to be physically present at the hearing.24
In a case SGS Societe Generale de surveillance S.A. v. Republic of Paraguay25 the witness statement
was accepted by the remote hearing. This international arbitration seated in Singapore applied the
SIAC rule of 2016 of conducting an oral hearing virtually including participants of witnesses,
arbitrators, experts from different time zones.26 The tribunal requested the parties to be flexible
and cooperative to each other to explore and seat for the new method of conducting expert
witness conferencing by way of a video conferencing.
However, courts around the world aligned with the view that remote cross examination can be
done efficiently and there shall be no such disadvantages for the cross-examination because of
virtual hearing.27 The cross-examination concerns that a heard witness or expert might be in any
cause tampered or with undue influence. Through in practice a representative is sent by the cross-
examining party to sit with the person who testifies to ensure that the witness is free from any
undue influence. However, without the physical presence of a person with the witness might be
impossible and expensive as well in this pandemic. This risk should not prevail as it requires a
good amount of highly dishonest behaviour on the side of the party that the tribunal could very
well notice and thus destroy the credibility of the witness and expert.
22
Maxi Scherer, 2020, 'Remote Hearings in International Arbitration: An Analytical Framework', Journal of
International Arbitration, vol. 37, no. 4.
23
Dorajay Pty Ltd. v. Aristocrat Leisure Ltd. [2007] FCA 1502,(Federal Court of Australia). Hanson- Young v.
Leyonhjelm (No 3) [2019] FCA 645 at(Federal Court of Australia).
24
See,. UNCISTRAL Law art.28(1).
25
SGS Société Générale de Surveillance S.A. v. The Republic of Paraguay, ICSID Case No. ARB/07/29.
26
Kluwer Arbitration blog, arbitrationblog.kluwerarbitration.com.
27
ICI Australia Ltd. v. Commissioner of Taxation (29 May 1992, unreported, Commissioner of taxation v.
grbich.1993.

In a physical hearing the witnesses might be stressed and confused in the courtroom. The witness
is less alike to “remain conscious of the nature and solemnity of the occasion and of his her
obligations''28. So, the witness has to be examined under the eyes of the counsel and party, which
might lead to conscious or unconscious interference in absence of remote testimony.
Apart from all the hurdles the remote hearing involves witness or expert testimony to be vigilant
and judicious preparation. There are also technical frameworks that the court shall take into
account. Before the parties, witnesses, expects to participate in remote hearing tribunals must
ensure a stable and good interest connection and electronic impediments. This cannot be taken
granted in the national court proceedings,29 since the tribunal cannot match the accurate set-up
but can nevertheless be less acute in international arbitration proceedings. Moreover, the tribunal
make certain that there are not many connections as it likely to be issue in the connections and
other technical errors. The Singapore International Commercial court has test remote set-up
before deciding “whether it was sufficiently satisfied with the quality in order to proceed with the
remote hearing”30. The tribunals first go for testing round whether to proceed with remote hearing
or not then go for test for set-up. Though this procedure might add up some extra costs still the
courts consider it be of importance for a fair and just remote hearing.
There a question arises “Does the lex arbitri provide for a right to physical hearing in
International Arbitration?
To this Australia31, focus of the report is on international arbitration under the IAA. The IAA
adopts and gives effect to model law which “has the focus of law in Australia.”
It certainly refuses any rights to a physical hearing in arbitration as expressly mentioned. The only
express rights are for the parties to be treated “with equality” and have a “reasonable opportunity”.
The “reasonable opportunity” test is modification of the”full opportunity” required by model
28
Supra note 22.
29
See Capic, para 85, Menin, supra n. 6(“noting that the so-called
cyber-divide can be an important issue when considering the use of technology in national courts”).
30
Supra note 22.
31
Lucy Martinez & Jay Tseng, Australia arbitration law review survey,
cdn.arbitration-icca.org/.

law32. the modification confirms that it “is intended to give arbitral tribunals a wider degree of
flexibility in controlling arbitral proceedings without removing requirements for the parties to be
treated with equality and have an appropriate opportunity to make out their case”33. Thus under
IAA, the arbitration targets for the fair and equal chances for physical hearing. The courts have
rejected challenges to award issued after remote hearing, thus this an implied connotation for
rejecting any right to a physical hearing in arbitration. In the case of Sino Dragon Trading Ltd.
V.Boble Resources International Pte Ltd34 many of the disputes arose regarding the remote
hearing which was resolved by UNCITRAL arbitration. There were various “technical difficulties
in the mode of communication”. The planned video link did not work, a “split format” was
adopted, witnesses unable to access relevant documents. Here the tribunal noted that “highly
unusual circumstances” leads to the unsatisfactory examination facts. The FCA stated that “the
conduct of the party who complains of a lack of procedural fairness or a lack of equality is relevant
to any asserted inability to present its case or any asserted lack of opportunity in that respect” 35.
Finally the FCA found that ““the mode of evidence by telephone or video conference, although
less than ideal compared with a witness being physically present, does not in and of itself produce
‘real unfairness’ or ‘real practical injustice”36.
Procedural Structure of Remote Hearing
Onset of remote hearing there are numerous issues the tribunal and the parties need to consider
before the remote hearing. The procedural orders must include as follows:
● The Technical set-up of equipment and other connections impediments.
32
Article 18 of the Model law, “a party to arbitral proceedings is taken to have been a full opportunity to present
the party’s case if the party is given a reasonable opportunity to present the party’s case.”).
33
Revised Explanatory Memorandum, International Arbitration Bill 2010.
34
Sino Dragon Trading Ltd v Noble Resources International Pte Ltd [2016] FCA 1131.
35
Supra note 33.
36
Supra note 33.

● There must be training sessions for the parties, council and witnesses and provide technical
assistance as required.
● Assigning potential time zone differences between participants.
● The preparation and use of hearing impediments, electronic documents shared during remote
hearing.
● The procedure to deal with connectivity issues and tribunal communication between parties
to be addressed by the tribunal, in any difficulties the tribunal may stop the proceedings.
● The permission for the witness and testimony or expect. There must be a representative of
the cross-examination party at the witness place to avoid any such undue influence in the
statement of the witness.
● Use of demonstratives and share during the remote hearing.
● Use of transcripts
● The entire remote hearing must be recorded
If there is a systematic procedural planning for the remote hearing then the occurrence of
unforeseen issues reduces. Pre-established procedures are very well with the issues that the tribunal
faces at times of remote hearing. There also the issue arises of data breach and relevance of
confidentiality information on the both parties regarding the arbitration manner. This upon the
tribunal for the fair play and granting justice to the parties. The tribunal can very well stop the
proceedings if any such breach is to be found37. However the party might argue for award breaches
and right to physical hearing persists. The international arbitration and national laws rules grants
party to have a right to hearing and this would be necessarily mean.38 The parties even might argue
that its right to be heard was breached because no effective arguments and evidence in a remote
37
Supra note 18.
38
Singapore International Arbitration Centre (SIAC) Rules.
10 | P a g e ©TRUTH AND YOUTH
2021
hearing. In a case law China National Building Material Investment v. BNK international39 it was
held that the remote hearing is no cause of breach of parties’ right to be heard. The party argued
that the proceedings were”fundamentally unfair” as one of its witnesses was concerned about
medical conditions. Here the court recorded that an arbitral tribunal had offered to hear the
witness by video conference, but part insisted on a physical hearing. Nevertheless, there are
instances where the principle that a remote hearing does not breach the parties’ right to hear.
Moreover, there are some feasibility that the right to be heard might be affected in the pandemic
COVID-19 . Refusing or postponement is in no way helpful for the resolution for the issue, justice
shall prevail irrespective of any difficulties.
Conclusion
Considering that COVID-19 can be a revolutionized arbitration. The COVID-19 has proven that
dispute resolution or arbitral process is capable enough to carry out swift and cost-effective
resolution by virtual means. There is no doubt that the disputes are certain for leap parties for in-
person hearing but at the same time the arbitration process stands effective and efficient hearing
in this time. The main inhibitor for innovation and change is psychological. In a Queen Mary
survey in 201840 there is a proviso that the practitioners are reluctant to recall and familiarize the
parties, councils, witnesses/experts to the new technological impediments. So at the time of
COVID-19 it forced the practitioner to get out of their comfort zone and assist the revolution.
Although with the advancements of technology and advancement the dispute resolution must
keep on his pace. It must be in place to ensure fairness and equality between the parties. The
opportunity of parties to be heard must not be violative of the virtual hearing procedure.
This COVID-19 circumstances is a kick start which embers the spark in the flame of revolution.
Parties, counsel and arbitrators assess to proceed with planned hearings. Many proceedings have
already been conducted remotely, the hearing could be seen as the “last bastion” of physical
39
China National Building Material Investment Co., Ltd. (PR China) v. BNK International LLC (US) (W.D. Tex.
2009).
40
Evolution Of International Arbitration, 2018 International Arbitration Survey, pg. 32.
2021
heating. This has been changed in the current scenario of pandemic. The findings emphasize the
importance of organization and preset-up procedural of remote hearing. The existing national laws
and arbitration rules focus on the witness testimony and not the legal arguments, It is an irony of
the remote hearing that the arbitration law holds on. The article discusses the grounds for
challenging the parties’ right to be heard and treated equally. Thus, there are no specific
circumstances, where remote hearing violates any of the principles.
The assessment of remote hearing is an exquisite concern and the analytical framework help the
parties, counsel and tribunals in making this assessment. The arbitral tribunals as national courts
are growing and acquiring experiences with remote hearing is an opportunity that must not be
undermined. The users of the international arbitration are alike to increase their toolbox and get
themselves a best-suited solution to any dispute resolution case.

2021
Bayer Corporation v. Union of India– A Fight between Necessity and

Cupidity
-Sivananda R.
5th year student of CMR School of Legal studies, CMR University.
Introduction
Granting of Compulsory Licence of Patent in Pharmaceutical field has been in controversy

interminably in India. The clash between profit making industries and social welfare oriented
associations is not a new controversy1. India being a third world country has already faced major
issues in claiming Traditional knowledge which the western world has capitalized by exploiting
centuries old practices and making the same old discoveries and invention which are already known
to indigenous public2.
Now with the growth of Inventions and discoveries, the medical field has also progressed by
developing vaccines and making business out of it. Usually when a vaccine or medicine is made, the
company Patents the products and manufacturing process so that they receive protection from
exploitation. Once a Patent is registered, the Patentee gets complete monopoly right over the patented
product3.
India, became a signatory to TRIPS agreement, an international agreement to provide more extensive
protection of intellectual property. Consequently, India passed the Patents Amendment Act, 20054.
1
Mansi Sood, Natco Pharma Ltd. v. Bayer Corporation And The Compulsory Licensing Regime In India, NUJS
LAW REVIEW (Jan. 13, 2021, 9:10 P.M), nujslawreview.org/wp-content/uploads/2016/12/mansi.pdf.
2
Nijar, Gurdial Singh, TRIPs and Biodiversity: The Threat and Responses: a Third World View, United States:
Third World Network (1996).
3
Arunima Singh, Towards The TRIPS Agreement, LAWCTOPUS (Jan. 13, 2021, 9:10 p.m.),
www.lawctopus.com/academike/trips-agreement.
4
WTO’s Intellectual property: protection and enforcement, World Trade Organisation (Jan. 13, 2021 9:10 p.m.),
www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm.
13 | P a g e ©TRUTH AND YOUTH 2021

This case became the first case where a Compulsory license was issued after India becoming a
signatory to TRIPS (Trade Related Aspects of Intellectual Property Rights) and also to the Doha
Declaration in 2001.
Background Facts of the Case
This Case Commentary revolves around the history of how “Nexavar” – a patented drug for curing
Kidney cancer came to India in the form of “Compulsory License” to Natco Pharmaceuticals Ltd.
Bayer Corporation, a US based Corporation which developed Sorafenib Tosylate5 sold under the
trademark “Nexavar” to be used in treatment of Kidney Cancer. The drug performs the function of
relieving the pain as well as slows down the spread of cancer.
On 3rd Mar, 2008, Bayer Corporation applied and was granted a Patent in India for “Nexavar”
On 6th Dec, 2010, Natco Pharmaceuticals Ltd approached Bayer Corporation for grant of voluntary
license for monopoly of the patented drug.
The controversy arose when greed took over necessity. Bayer Corporation was selling the drugs at Rs.
2,80,428/- (Two Lakhs Eighty Thousand and Four Hundred and Twenty Eight Rupees) per month
worth of tablets which is so expensive that not even the middle class could afford such a price for 30
tablets. The need of this drug was felt by Natco and hence during the approach of voluntary license
of the patented drug, Natco proposed to sell the same drug at Rs. 10,000/- (Ten Thousand Rupees)
per month. This was unacceptable for Bayer Corporation as it would lead to huge loss.
On 27th Dec, 2010, Bayer Corporation rejected Natco’s offer for voluntary license and gave Natco
Pharmaceuticals a 14 days period if Natco had anything to add further. The greed of money was clearly
understood by Natco Pharmaceuticals. Conflict of right or wrong was put in front of Natco and it
had a chance to become a multi-millionaire company. All they had to do was to sell the drugs at Bayer
Corporation’s price and they could have become one of the top pharmaceuticals of all time in India.
5
Sorafenib Tosylate, PUBCHEM (Jan. 13, 2021 9:10 p.m.), pubchem.ncbi.nlm.nih.gov/compound/Sorafenib-
tosylate.

But the Intention of Bayer Corporation was not to become big but to serve the needy. Leaving behind
the lifetime opportunity to become something big, Natco, after a few months, took a brave step to
change the Pharmaceutical face of India.
On the other hand CIPLA, another Indian Pharmaceutical, was already selling the drugs as “Soranib”
at Rs 30,000/-(Thirty thousand Rupees) for a month later it sold at Rs. 5,400/- . CIPLA did not take
prior permission or licence from Bayer Corporation and hence was undergoing litigation in Delhi
High Court for infringement of Bayer Corporation’s Patent6.
On 29th July, 2011, Natco applied to the controller of Patents for grant of Compulsory License under
Section 84(1)(3) of Patent Act, 20057.
Legal History
Proceeding Before Controller
Natco had satisfied all the conditions of the Patents Act, 19708. It also proposed that it will sell the
patented drug at Rs 8800/- (Eight Thousand Eight Hundred Rupees) for 30 days of therapy.
On 9th Mar, 2012 the Controller General of Patent issued an order granting compulsory license to
Natco Pharmaceuticals to manufacture and sell the patented drug “Nexavar” and reimburse with a
royalty at 6% of its net sales to Bayer Corporation till the term of the Patent. According to this order,
NATCO could sell the drug only in India and had to supply the drug to as a minimum of 600 needy
patients free of cost each year.
The reasoning behind the order was that the price charged by Bayer Corporation was not an
affordable price when compared to purchasing power of the public or to meet the requirements in the
6
BAYER Vs CIPLA & UOI, WP (C) No. 7833/2008.
7
Apoorva Mandhani, Bayer Corporation v. Union of India, INDIALAW (Jan. 13, 2021, 9:10 p.m.).
8
Patents Act,1970 § 84(1).

market and hence Bayer Corporation contravened the Patent Act and Natco Pharmaceuticals was
issued with Compulsory License.
Proceeding Before Intellectual Property Appellate Board (IPAB)
Bayer Corporation, not satisfied with the Controller’s order, appealed in IPAB contending that the
Compulsory License issued to Natco depict redundancy as the drug was already available at a lower
price (CIPLA selling the same at Rs. 5,400/- per month) than the price specified by the Controller
General.
Bayer Corporation also alleged that if the Sorafenib Tosylate drug was already available in the market
at affordable prices, then section 84(1)(b) of the Patents Act,1970 cannot be one of the issues.
However, the IPAB rejected this contention stating it was not the Patentee (Bayer Corporation) who
was supplying the Patented drug at even-handed price also the Patentee had a case against CIPLA for
the same drug before Delhi High Court.
This judgement furthermore gave explanation to the word “Patented Invention” used under section
84, which refers to the invention must be:
– made available to public by the Patentee;
– Reasonable requirements of the public must be satisfied;
– worked in the territory of India.
Bayer Corporation argued, with respect to the requirement of getting the drug worked in India, the
word “work” would include importing of the patented product and not just local production. IPAB
commented that the conjecture would depend on a case to case basis and the phrase has an open
ended meaning.
The IPAB passed the judgement against Bayer Corporation with the reasoning that granting an
injunction in favour of Natco Pharmaceutical would jeopardize the public interest.

Proceeding Before High Court
Aggrieved from the order passed by IPAB, The Bayer Corporation appealed to Bombay High Court.
The Appellant raised an issue that whether the supplies by Natco & CIPLA of the disputed drug have
to be taken into account to determine the satisfaction of reasonable requirement test?
The High Court judgement relied on the fact that even after taking Cipla’s supplies into consideration,
still the public prerequisite would not be met and commitment to meet the reasonable requirement of
the public must be of the patent holder alone, either by patentee himself or through his licensees.
The High court, with respect to the requirement of getting the drug worked in the territory of India,
it was held that when a patent holder is being drawn against with an application for Compulsory
Licence, it is upon the patent holder to show that the patented invention is working in the territory of
India by production or otherwise. Although, the patent holder needs to satisfy the authorities under
the Patent Act (such as Controller General) as to why the patented design was not being manufactured
in India keeping view Section 83 of the Patent Act. In such cases, the phrase “worked in India”,
according to the Court, could not mean merely manufacture in India.
Bayer Corporation had theorized a dual pricing system under the Patient Assistance Program (PAP).
Under this Program, when a patient bought three dosages of the patented drug, he was provided with
the remaining tablets for the whole month, free of cost9. Although, this concept was unaccepted as a
defence for Section 84 (1) (b) of the Patent Act, which insists on that the patented drug should be
made available to the public at a reasonably affordable price i.e. to any portion of the public tendering
the price.
Section 84(7) of the Patent Act provides a reckoning fiction which deems that necessity of the public
is not satisfied, if the demand is not met to an “adequate extent”. The High Court held that so far as
drugs are concerned, the sufficient extent test has to be 100% i.e., to the fullest extent. The court also
observed that the drug has to be made available to every patient and cannot be deprived at the altar
of the rights of the patent holder. Thus the High Court Dismissed Bayer Corporation’s petition
9
Jash Vaidya, Compulsory Licensing of Patents in India, Jash for a Just World (Jan. 13, 2021 9:10 p.m.),
jashvaidya.wordpress.com/2015/11/27/compulsory-licensing-of-patents-in-india/.

Proceeding in Supreme Court
Bayer Corporation, by Special Leave Petition, filed before the Supreme Court. The Apex Court noted
that they are not inclined to interfere as they found no fault with the order of the Controller adjourning
the application for compulsory license to Natco Pharmaceutical under section 84 of the Patent Act.
Accordingly, the petition challenging the order of the High Court was dismissed with a raise in royalty
from 6% to 7% of the net sale of Natco as reimbursement for the compulsory license keeping in mind
that Bayer Corporation had led no evidence to show the expenses incurred by it to invent the patented
drug10
Comments
This was the first ever case where compulsory licence was brought in front of the Controller General.
This decision is important not just for potential compulsory license applicants but also for
forthcoming patent seekers. This judgement not only raises important questions about how exactly
‘reasonable affordability’ is to be defined from a public perspective but also the usage of an ambiguous
standard like this which could increase the scope for subjectivity. However, even without precise
definitions, the emphasis on the public perspective looks promising. It demonstrates the focus of
Indian pharmaceutical patent law, which pushes towards affordable access to the larger public and
that the Court’s primary concern is that of public interest. The IPAB, through this case, has
straightened out that it will not allow Pharmaceutical companies to squirm out of compulsory licenses
without actually working their patent for the benefit of the general public.
Even though this case looks promising for an easier Compulsory License, it indirectly affects the
investors of research and development, marketing, etc and also could create lack of motivation for the
upcoming researchers but when questions of necessity and service to mankind come into picture,
making money out of it seems immoral.
10
Supra note 6.

COVID-19 and Patent
With the Vaccines hitting the market, Developing countries such as Africa and India are pushing the
WTO for short-term suspension of Intellectual property rights (IPRs) for patent of Covid-19 vaccines
and other new technologies so that they are accessible for needy countries. This is also to ensure that
not only the richest countries could afford and have access to the vaccines, medicines and other things
to contain the pandemic. The developed countries including UK, USA, Canada and EU and
Pharmaceutical Industries oppose this move stating Intellectual Property system is necessary to
encourage novel inventions of vaccines, diagnostics, and cures, which might dry up in its absence11.
Thomas Cueni, Director General of The International Federation of Pharmaceutical Manufacturers

and Associations (IFPMA), commented that wearing down patent protections has far-reaching
outcomes and waiver of patents this time would risk causing harm to the whole medical infrastructure
that allowed Covid vaccines to be developed in record time. While the poor and developing countries,
which have higher populations to serve, need the vaccine at cheap cost which can be done only by
compulsory license or removal of IPRs protection from that particular invention12. With the
government bearing the cost would just result in an increase in world debts and a few groups of people
getting rich while the whole world suffers.
Imagine getting a vaccine during a pandemic becomes more of a luxury than necessity. In my personal
opinion, vaccine made should be available open and the Government should pay gratitude in form of
one-time payment or in mode of Royalty which can be done by compulsory license which the Bayer’s
case clearly stipulates.
11
Ann Danaiya Usher, South Africa and India push for COVID-19 patents ban, The Lancet, (Jan. 13, 2021 9:10
p.m.), www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)32581-2/.
12
Hugo Miller, Susan Decker, Covid-19 vaccines: India’s proposed WTO patent waiver faces stiff opposition from
US, EU, MINT, Bloomberg (Jan. 13, 2021 9:10 p.m.), www.livemint.com/science/health/covid-19-vaccines-india-s-
proposed-wto-patent-waiver-faces-stiff-opposition-from-us-eu-11608117804521.html.

Conclusion
This case reflects not only in the perspective of necessity but also points out how desperate are those
who invent medicines and vaccines and yet struggle to make a living out of it. The problem lies with
inventing a cure to necessity with a motive of making money which should be curtailed right from the
beginning. Bayer Corporation v Union of India case not only showed the reality of how
pharmaceutical industries perform but also showed the conflict between right and wrong, between
personal nourishment and societal development and the only solution our legislative body could
produce is of paying royalty to reimburse the patentee for the hard work and a lifetime achievement
of few scientists.

The Ever-Mounting Crime of the Connected World: Identity

Theft
-Susan Joshy
2nd year student of the University of Mumbai.
Abstract
Digital India, cheap data, vlogs, blogs and thousands of e-professions; all of these have become a part
of our everyday lives. People who never dreamt of using a smartphone, are seen to make monetary
transactions, through the internet conveniently. But as the world digitally escalates, it casts a pitch dark
shadow of cyber crime. Just like every coin comes with two opposite ends, cyber crime is an inevitable
side of this digital world. One such cyber crime is “identity theft”. It refers to the illegitimate
appropriation of someone else’s personal data, to fulfil fraudulent intents. Though this has been an
age-old phenomenon, it has been conceptualized just recently, in 1964. Since the past two decades,
with technology and digitalization ramping up, this crime has been a topic of concern and has garnered
attention from governments, media, researchers and people in general. Despite all the awareness, this
crime has reached to serious extents in the past few years when the global rates of identity theft ranged
around 16.7 million to 14.4 million, in 2017 and 2018 respectively. This paper aims to study in depth,
the concept of identity theft, its types and the potential motives behind the crime. This piece would
also analyse the potential ways through which a person could fall prey to this fraud and the
repercussions faced by the victim . Further, this article would study the laws regulating identity theft
from the Indian perspective and if there is a need to bring in stringent laws. Lastly, ways and means
to protect one’s virtual identity from such frauds would also be enlisted.

Introduction
Identity theft has always been a part of the civilized human race, we could find its evidence in
numerous scriptures and books. The practice of people disguising as someone else for varied reasons,
was something very common. However, back then it was confined only to the physical form, where
people used an alter identity to illegally smuggle or migrate or even to vote. But with the upsurge in
technology, the scope of identity theft has included the digital spectrum too. Growing up, we might
have come across several movie plots portraying identity theft, where personal information of the
protagonist is secretly and slyly assumed by someone who then seeks revenge against them. Movies
like “Disconnect” and “Net” depict the ugly face of this digital world where people easily fall victims to
crimes where their identity is assumed by someone else, and it is used to raise a conspiracy against
them or rob them off their financial assets. These movies show the horrifying reality of being
perpetrated by an identity thief in this digital era. However, 20 or maybe 10 years ago, this topic was
just something fictitious and reelistic, little did we know that a decade later, this could turn to be the
“quintessential crime of the information age”. Today, this is one of the most widespread cyber crimes
a person could be subject to. Identity theft is a fraud in which a person illegitimately acquires someone
else’s PII (personally identifiable information) which could be their bank details, IP address, medical
details, or anything to impersonate them. This information is usually used for unauthorized financial
gains or in some cases to transfer the burden of a crime to someone else, whose identity is stolen.
Identity theft is a crime so widespread, that most perpetrators find this the easiest way to earn money.
One of the main motives that drive people into stealing someone else’s identity is Effortless earning,
when asked what causes them to steal someone’s identity, most identity thieves responded that, this
crime offered them a lucrative amount at minimal efforts without being subject to absolute risk1 unlike
other crimes like burglary or drug peddling. Today, when a major part of our days is spent behind a
screen, everything input we provide is stored in a vault, we call, a database. And when this database is
accessed illegitimately, it could result in abominable loss of the victim, which is one of the best ways
to seek revenge. Thus, the second major motive to steal someone else’s identity is reported to be
1
Gerald Hanks, Reasons Why Identity Theft Occurs, Sapling (Mar. 28, 2017)
www.sapling.com/7341860/reasons-identity-theft-occurs.

revenge. Other reasons could include concealment of a crime committed by someone who tactically
commits the crime masked by a stolen identity or to gain in social status or an employment position.
What kind of data could be stolen?
As mentioned above, identity theft was initially confined only to the physical form, i.e. emulating
someone else’s physical traits, but today that’s not the case, every trivial data we feed, could be misused
in unimaginable ways.
Financial identity theft: This is the most prevalent form of identity theft. Just as mentioned above,
when most perpetrators indulge in this crime with the intent of earning quick money, stealing financial
data turns out to be the most prolific way. Victims could be robbed of their credit or debit card
numbers, PIN, PAN card number, bank account details, phone numbers, UID numbers or any detail
used for a financial transaction.
Biometric ID theft: Today, biometrics has emerged to be a very efficient way to authenticate a person’s
identity. Airports, workplaces, schools or any well equipped place, promote the usage of biometric
data. Fingerprints, eye scans, vocal cadences (pitch and tone while a person speaks) are information
conveniently taken from a person to verify his identity, the reason being that it stays completely
exclusive to a person and there are no chances of it being duplicated, also it requires lesser storage and
management. However, this data being stolen, could cause the victim excess loss, it could be reputative
or monetary loss.
Medical id theft: This includes a person’s blood type, ailments, health insurance number, or even
medication details. All This information could be used by drug dealers to purchase prescription drugs,
or by accessing medical insurance number, the predator could use the insurance for his personal uses.
There remain multiple other forms of data theft like mail and online shopping theft, child id theft
where the details of a child are used to fake an identity, tax theft, where a thief steals a person’s tax
details to gain tax returns, synthetic identity theft, where data of two distinct persons are combined to
form a new false identity, and countless other data of grave importance.

Potential ways through which identity can be stolen
Every crime evolves through phases. When one method of committing the crime is caught, people
become conscious of predators, thus new methods of crime evolve. Today, with technology reaching
new heights each day, it raises convenient situations for a crime. Thus, has evolved various ways of
identity theft.
Skimming is a process of illegally capturing credit or debit card details with small devices called the
skimming machines. They are usually placed with devices which use credit or debit cards like ATM
machines or card swiping machines. This could be done by the most ordinary people, who we could
possibly never imagine of as criminals, like our nearest salesman, receptionists or even waiters. A
recent event of the skim fraud reportedly duped a Kolkata resident of Rs. 57,000, where the person
was debited of 57,000 without an SMS or OTP2. Skimming fraud numbers have disturbingly increased
in India, when according to a report by the Times of India, 13 lakh Indian ATM cards had been
skimmed and were found on sale in the dark net3.
Thieves could also approach the targeted victim claiming that they are a bank and would need the
user’s information to help them avail certain schemes, which ultimately turns out fraudulent and costs
the victim heavy loss.
Phishing is another medium used by identity thieves to access someone’s personal information. This
is done by appropriating some establishment’s email and the victims are thus targeted and lured into
giving their sensitive financial or other details. They could send mails with links that direct to a site
that looks just like the official bank or credit card site, but is actually a fictitious site created to convince
you to reveal your personal information. The recent-most case of phishing in Delhi, garnered national
attention. NDTV reporter Nidhi Razdan, stated that she had been victim to a very serious phishing
attack, where the attacker offered her a fraudulent job as an assistant professor at the reputed Harvard
2
Kolkata: Man duped of Rs 57,000 without sharing OTPs, ATM skimming fraud suspected, Mirror Now Digital
(Mar. 21, 2020), www.timesnownews.com/mirror-now/crime/article/kolkata-man-duped-of-rs-57000-without-
sharing-otps-atm-skimming-fraud-suspected/567589.
3
Rachel Chitra, Skimmed at ATMs & shops? 1 million Indian cards’ data on sale on darknet, Times of India (Oct.
31, 2019), timesofindia, indiatimes.com/articleshow/71828197.cms.

university. The attack led her to give in her bank account, personal data, emails, medical records,
passport and devices like computer and phone.4
However, an increasing number of identity thieves who are versed with the victim- psychology, have
shifted to evolved methods like stealing data through wireless mediums like WiFis and hotspots.
Wireless signals are easy to misuse and could be conveniently accessed illegally and the thief could
thus get access to every information stored in the divide to which the wifi or hotspot is connected.
Most people remain ignorant about this attack and thus the vulnerability to wireless identity theft
mounts up unscrutinized.
Yet another unrecognized trap to which a person can fall prey is, pharming. This is a method through
which a hacker tampers a trusted website and redirects it to a fake or spoofed website to capture
personal identifying information from victims, these pharming websites are carefully designed and
controlled, making them look like normal unsuspicious websites like shopping or gaming sites, by
practicing hackers to gain sensitive information from the victims ir to install any software in their
devices which could give them wider access to the targeted victim’s digital space.
Other than these common ways, there remains varied other ways through which an identity thief could
perpetrate someone, like pretexting, where the attacker collects certain information of the intended
victim and then via calls or texts get the victim to give in their sensitive information. Or vishing (voice
phishing), SMShing, where the attacker through telephonic means pretends to be some fake
establishment and gets the victim to hand over his sensitive information.
Gravity of the issue
As mentioned above, 20 years ago identity theft was less heard and less known and less dangerous
too. India has seen a rapid growth in its technological sector and each day we get closer to the idea of
“the global village”, but with this growth, has grown technological crimes. Today we live in an era
4
Scroll Staff, Journalist Nidhi Razdan files complaint with Delhi police cyber cell on fake Harvard job offer, The
Scroll (Jan. 19, 2021), scroll.in/latest/984512/journalist-nidhi-razdan-files-complaint-with-delhi-police-cyber-cell-
on-fake-harvard-job-offer.

where, even highly censored things like the dark web is quite prevalent and accessible to all. In this
web, lay infinite possibilities of sensitive data being stolen and sold by professionals, and the victims
could hardly have a clue. And today we could form an idea of how bad the crime is when it is said to
be the fastest growing white collar crime. India has witnessed a tremendous rise in cases pertaining to
identity theft. And it’s reported that every 4 in 10, i.e. 39% Indians have been victim to identity theft5
and 77% of the fraudulent cases in 2015, were reported to be identity theft. One could understand the
gravity of an issue only if he knows the loss the issue amounts to. Identity theft not only leaves the
victim in financial losses but also induces fear and instability within their minds, creating unwarranted
panic and a need for social security. Phishing itself caused an estimated loss of $225 million in India
in 2013, and thus India emerged as the top nation in Asia Pacific region in terms of phishing attack
by volume, closely followed by Australia and China6. Identity fraud has increased six fold over the past
five years and is estimated to cost the economy a loss amounting to more than £1.7 billion a year7.
Every victim who loses his monetary assets, his savings, his deposits to an identity theft fraud needs
years and years together to regain it or regenerate it. Apart from that the mental and emotional aspects
of it leave people with stress, anxiety, physical restlessness, a fear of social and financial security, and
even suicidal thoughts in grave cases, etc. reports state that nearly 83% of the Indians feel unsafe when
it comes to their data and wish to improvise the security of their data. Mostly, when an identity theft
case tampers a person’s reputation, he is likely to be ostracized by his community on account of what
the criminal did, masked under his identity. Re-gaining this reputation and money, which a person
made during his entire lifetime is near to impossible.
Laws protecting identity theft
Section 421, 423 and 424 penalizes the commitment of fraud, which is the crux element of any identity
theft. These sections hold liable anyone who misleads someone else, by an imprisonment termed two
5
ET Bureau, 4 in 10 Indians have experienced identity theft: Report, The Economic Times (Apr. 7, 2020, 5.51
p.m.), economictimes.indiatimes.com/tech/internet/4-in-10-indians-have-experienced-identity-theft-
report/articleshow/75029916.cms.
6
India lost $225 million in phishing attacks, IFSEC Global, www.ifsecglobal.com/cyber-security/india-lost-usd225-
million-phishing-attacks.
7
Arunachalam P., (2011), Economic Impact of Identity Theft in India: Lessons from Western Countries,
International Proceedings of Economics Development and Research, vol.12, pp. 235-240.

years or a fine, or both. Section 378 and 424 of the IPC provide that “Whoever, intending to dishonestly
take any movable property out of the possession of any person without that person’s consent, moves that property in order
to such taking, is said to commit theft.” When the IPC was codified in 1860, property was limited only to
something tangible and movable, virtual property like data and information was never ideated. Hence,
the IPC doesn’t distinctly penalize identity theft, as data was never recognized as a property. However,
there are a few sections which deal with theft, though it explicitly doesn’t mention identity theft.
Arguments have been raised about digital property not coming within the ambit of “material property”
mentioned in the previous section. These sections penalize identity theft with an imprisonment lasting
to 3 years or a fine or both. Further the section 425 of the IPC penalizes anyone who intentionally
causes physical, mental or dignitary damage to a person knowing that it would cause harm to the
person, by an imprisonment which could last upto 2 years or a fine, or both. This goes without saying
that a victim of identity theft goes through irrevocable damages, and thus identity theft is covered
under the scope of this section. Further, the IT act 2000, which could be called the sole statute dealing
with cyber regulation, makes some provisions to curb alarming cyber crimes like identity theft. Section
66 If any person, dishonestly or fraudulently, causes any damage to a computer or a software, he shall
be punishable with imprisonment for a term which may extend to three years or with fine which may
extend to five lakh rupees or with both.
Section 66B Punishment for dishonestly receiving stolen computer resource or communication device
is Imprisonment for a term which may extend to three years or with fine which may extend to rupees
one lakh or with both. Section 66C of the aforementioned statute, expressly defines identity theft and
holds anyone culpable for committing identity theft, with an imprisonment which may last upto 3
years or a fine which extends to Rs. 3,00,000, or both. Further, 66D, states that whoever cheats
someone by impersonating through any computer device, shall be liable to an imprisonment which
may last to 3 years or a fine or both. However, keeping account of the gravity of this crime, the laws
regulating identity theft, is comparatively just minimal. The supreme court, in Shreya Singhal vs Union
of India, stated that cyber crimes like phishing and identity theft have seen a rapid increase in the
recent times, so penal provisions are required to be included in the IT Act, the IPC and the Indian
Evidence Act8. Apart from these, banks who owe a social responsibility towards their customers have
taken steps to raise awareness about this issue. Recently We might have seen a TV ad which illustrated
8
Shreya Singhal v. UOI, (2013) 12 SCC 73.

a senior citizen being hoodwinked by a person by luring him into giving their banks details by offering
foreign trips or any grand rewards, with the message “this could happen with you”. Also, various
network providers too, have taken steps towards this direction, by sending SMSs so that users maintain
confidentiality about their personal information.
Conclusion
Identity theft is a growing problem, in every digitally developing and developed country. It being a
recently developed crime, not much has been done to recognize its significance and to curb it. As the
old saying “caveat emptor” goes, as long as the law doesn’t strictly scrutinize it, we the potential victims
are supposed to be cautious and raise awareness around us. This is such a widespread crime, that any
person, though well versed with technology, could fall prey to it. As this would stick around for a
while, here are few possible ways we could keep our data safe like one should keep a constant eye on
our passwords and personal information, one should be utterly careful while handing over their
personal details, even though it may seem trivial. Information which seems trivial to the user, could
be used in unimaginable ways, which would result in destructive loss. Additionally, one should
ascertain that their wireless networks are safe and talk to their local consultant incase of doubt. Also,
one should be very careful while dumping documents which contain their personal information, as
dumpster diving, a practice where thieves rummage through all the discarded documents to find
information which could help them steal someone else’s data, is one of the most common ways to
steal data. Further, vigilance should always be maintained, if one notices unusual patterns in their
accounts or emails, a suspicion that their identity is unsafe could be risen, and one should immediately
report it to the nearest cyber cell and seek protection. Also there are multiple businesses offering
protection against identity theft. These businesses have emerged to be a billion dollar industry because
of the rampant, ever increasing menace of identity theft.The global identity theft protection services
market size was valued at 8.62 Bn in 2019 and is expected to grow at an annual rate of 12.6% during
the coming decade9 .If one feels they need a rigid security for their data, they could avail these services
9
Global Identity Theft Protection Services Market Report 2020-2028: Ever-Rising E-Commerce Sector Worldwide
to Bolster the Demand for Identity Theft Protection Services, GlobeNewsWire (Dec. 30, 2020),
www.globenewswire.com/news-release/2020/12/30/2151545/0/en/Global-Identity-Theft-Protection-Services-

too. Constant monitoring, responsibility and awareness could effectively reduce the happening of this
crime. We could say that identity theft is one of the most lethal yet most unrecognized crimes, and
needs to be curbed and stringently looked into by the law.
Market-Report-2020-2028-Ever-Rising-E-Commerce-Sector-Worldwide-to-Bolster-the-Demand-for-Identity-Theft-
Protection-Services.html.

Procedural Requirements for Performance of Marriage under The

Special Marriage Act, 1954
-Abhigna Valusa
2nd year student of Amity University, Mumbai.
Abstract
The Special Marriage Act, 1954 involves various procedures for the registration of the marriages
performed under the Act. The Special Marriage Act, 1954, enabling a unique concept of marriage for
all Indians and Indian residents abroad, regardless of the caste and faith. The Special Marriage Act,
1954 allows inter- caste and inter-religious marriages. This research work aims to study the background
of Special Marriages in India irrespective of castes and religion. Also aims to provide a detailed study
on marriages and its registrations under Special Marriage Act. This study is limited to analysis of
procedural requirements for performance of marriages under The Special Marriage Act. The purpose
of this study is to understand or interpret the role of Special Marriages in India. This research work
will be useful for academicians and law students in understanding the background of The Special
Marriage Act, 1954.

Introduction
India is a country of unity in diversity having different faiths, religions, cast, creed, languages, cultures
etc. Hence, it is felt by our lawmakers that there is a need to have a special statute to provide for
marriages between different religions.
The Special Marriage Act, 1954 (the Act) deals with marriages of various castes or different religions.
Inter-caste marriages take place between two persons of different castes. The Act is a specific statute,
which facilitates marriage between two individuals from different casts and /or religions. The Act
gives the provision to get married with an individual regardless of caste and religion. Any Indian
residing in India or outside India has eligibility to get married under this Act.
The Act emphasizes the role of marriage officials in solemnization and registration of a marriage in a
foreign country for the benefit of Indian diplomatic and consular officers residing abroad in pursuit
of official duties. The Act derived its origin from a past piece of legislation. Under the Act, marriages
are not regulated by personal laws.
The Special Marriage Act respects the person’s freedom in deciding their choice of partner and is
intended to allow the individual to be released from the oppressive methods in the matter of marriage.
However, the conditionality attached and procedure required for marriages under the Act enable
ample time and space for community, caste and society to intervene with those who wish to take
recourse to the Act1.
Unlike other state legislation that regulates religious marriages, this statute allows the individuals to go
through a variety of administrative processes to recognize their marriage. The couple must publish the
notice for the registration of marriage by giving their private information enabling others to view and
register objection, if any, within 30 days of such publishing. The marriage officer has the authority to
pursue these objections.
A marriage is lawfully performed at the state’s Marriage Division; there must be a sight of at least two
marriage officials and three witnesses. Rituals are the most essential feature in a marriage under the
1
Diva R., A Brief Guide to Special Marriage Act, IPleaders (Oct. 11, 2019),
blog.ipleaders.in/special-marriage-act/.

Hindu Marriage Act, 1956, without which the relationship between the two would not be established
and would be null and void. In contrast, if any one wishes to get married under the Special Marriage
Act, must serve a notice of their intention to the Registrar of Marriages under whose jurisdiction at
least one of the couple resides at least 30 days before the date of such Notice2.
Anybody can challenge the proposed marriage, within 30 days of publication of such Notice on the
ground that it is in contravention of one of the provisions of the Act. The marriage may be solemnized,
once the thirty days time period had elapsed. Once the Marriage Registrar and the witnesses sign the
certificate, the marriage will be declared complete and solemnized.
The Special Marriage Act, 1954 changes the perspective of the law regarding prohibited marital
degrees. One of the requirements for the solemnization of planned civil marriage is that, “parties shall
not fall within the range of the prohibited relationship”. However, the Act provides for a relaxation,
if the tradition of one parties permits for a marriage between the parties within the prohibited degrees3.
History
Henry Sumner Maine is the first to introduce a bill to allow any individual who wants to get married
with the person of his/her choice, under civil marriage law. The Act III, 1872 was passed. The statute
legitimized relationships among those who are able to repudiate their faith (“I do not profess the Hindu,
Christian, Jewish, etc. religion”). The community administrators and local Government were against the
Act. The reason behind the unconstitutionality of the Act was that the local Government and
Administrators were unanimously objecting to the idea of such Act. Hence the Act III, 1872 was
replaced with the new Act viz. The Special Marriage Act, 1954.
In the year 1954, the law makers felt that there is a need for such a statute, where an individual may
get married with the partner of their choice irrespective of their religion. The Special Marriage Act,
1954 allows inter- caste and inter-religious marriages irrespective of their faith. Elaborate procedures
were stipulated in the new.
2
The Special Marriage Act, 1954, § 5.
3
The Special Marriage Act, 1954, § 4(d).

Constitutionality of Section 6
The Special Marriage Act, 1954 allows inter-religious marriages to be recorded. The plaintiff, Nandini
Praveen, a law student, filed a writ petition before the Supreme Court under Art 32 of Constitution
of India, challenging the constitutional validity of the Act in general, Section 6(2), 6(3), 7, 8, 9, and 10
in particular which stipulate mandatory requirement of disclosure of personal information the notice
to be issued as a prerequisite4.
She contended that certain sections breached the fundamental rights protected by the Constitution.
The petition also stated that disclosing the private information regarding matrimony issues does violate
Article 21 i.e. right to privacy. It is even contended that this section of the Act does violate Articles 14
and 15 guaranteed under Part III of Constitution.
The main issues raised before Hon’ble Supreme Court were:
1. Will certain sections of the Special Marriage Act, 1954 compromise the protections guaranteed
by Articles 14, 15, and 21?
2. Do the sections of the Special Marriage Act, 1954, breach the freedom to Marriage?
The Provisions of Special Marriage Act, 1954 that violates Article 14, 15 and 21 guaranteed under Part
III of the Indian Constitution are as follows:
1. Section 6 (1) of the Special Marriage Act, 1954 says that the marriage officer must issue the
notification of planned marriage which includes the couple’s permanent residence and where
they intend to live5. Section 6 (2) requires that such notice also be given to the local marriage
officer of districts that the couple intend to permanently reside in upon marriage6. Section 6
(3) states that, in case, the couple do not permanently reside in the jurisdiction of the marriage
officer, the notice must be sent to the marriage officer of the district in which they intend to
permanently reside7.
4
Nandini Praveen v. Union of India, (2020), W.P. (C) No. 000983 - 000983/2020.
5
The Special Marriage Act, 1954, § 6(1).
6
7

2. Section 6 of The Special Marriage Act does violate Article 14 (right to equality) and Article 15
(right against discrimination) which is guaranteed under Part III of The Constitution of India.
3. Along with Section 6 (2) and (3), Section 7, 8, 9, and 10 are still unconstitutional as these
sections make illegal access to personal details obligatory and hinder the right to privacy as
well as the right to life and liberty as guaranteed under Article 21.
In Pranav Kumar Mishra Vs. Government of NCT, Delhi, Justice s. Ravindra Bhatt held that: “The
special marriage Act was enacted to enable a special form of marriage for any Indian national
professing different faiths or desiring a civil form of marriage. The unwarranted disclosure of
matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize the
marriage itself. In certain instances it may even endanger the life or limb of one or the other party due
to parental interference. In such circumstances, if such a procedure is being adopted by the authorities,
it is completely whimsical and without authority of law.”
State/country shall not deny “equality before the law” or the “equal protection of law” in the
jurisdiction of India to anybody until legislation. This rule extends to every resident and every
foreigner8.
Article 15 specifies, on the “grounds of race, religion, caste, sex and place of birth, which a state shall not discriminate
against any person”9.
The right to privacy is recognized as part of the right to life and equality and is thus protected by
Article 21. “The concept of human integrity is considered which protects personal intimacy, the
sanctity of the family, marriage, procreation, the home and sexual advice as well”10.
The freedom to select a life partner is a constitutional right; family/community/clan’s acceptance is

not necessary for two people to get married11. There may be situations where the party’s personal
information is revealed to the media, such declarations may be used by religious riots as a weapon for
abuse. This personal information will not just be misused to promote communal misinformation and
avoid the solemnity of the planned marriage, but will often be misused to risk lives. This section is
8
The Const. Of India, Art. 14.
9
The Const. Of India, Art. 15.
10
R.Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
11
Shakti Vahini v. Union of India, (2018) 7 SCC 192.

thus collapsed colossally as it is checked against the touchstone of the marital right and the
presumption of equality12.
Marriage and its Registration under Special Marriage Act
Section 5(1) of the Special Marriage Act, 1954 specifies that every individual may lawfully marry. Only
inter-religious or inter-caste marriages are recognized by this statute in India. Under this rule, a
marriage must be done in the manner of a civil marriage, while parties may decide to perform their
marriage in any way they please13.
Section 4 of The Special Marriage Act includes the conditions for a marriage to be solemnized. Firstly,
no party should have a living spouse at the time of marriage14. Secondly, both should be capable of
giving valid consent15. Thirdly, with reference to the age of the parties, the male must be at least 21
years old and the female must be at least 18 years old16. Violation of any of the above provisions would
constitute the marriage void. In terms of prohibited marriage degrees, the Special Marriage Act, 1954
fully alters the situation. The prerequisite for having an approved civil marriage under this Act is that
“the parties are not within the degrees of prohibited relationship.”17
The Act permits marriage between the parties according to a specific custom (the custom regulating
by any individual). Getting married under this statute is, basically, like getting married in a state’s civil
ceremony, and is necessary to fulfill the civil formalities. In addition, the Marriage Officer should
publish the marriage notice18. Anybody can challenge the proposed marriage, within 30 days of
publication of such Notice on the ground that it is in contravention of one of the provisions of the
Act. The marriage may be solemnized, once the thirty days time period had elapsed. Once the Marriage
12
Ayush M., The Unconstitutionality of the “Publication of Notice of Intended Marriage” clause under the Indian
Special Marriage Act, Oxford Human Rights (Sept.14, 2020), ohrh.law.ox.ac.uk/the-unconstitutionality-of-the-
publication-of-notice-of-intended-marriage-clause-under-the-indian-special-marriage-act/.
13
14
The Special Marriage Act, 1954, § 4(a).
15
The Special Marriage Act, 1954, § 4(b).
16
The Special Marriage Act, 1954, § 4(c).
17
The Special Marriage Act, 1954, § 4(d).
18

Registrar and the witnesses sign the certificate, the marriage will be declared complete and
solemnized19.
Personal laws
Every personal law follows different customs, religious and procedures to solemnize the marriage.
▪ Muslim Law:
The essence of marriage is contractual, according to the Muslim definition of marriage. The first
cousins from the side of paternal as well as maternal are beyond the prohibited marriage degrees.
The brief ceremony of the Kazi, called “nikah,” starts by taking the official consent first, from the
bride and then from the groom, and the ceremony comes to an end by delivering the prayers from
the Holy Quran. The Kazi prepares a nikah-nama (marriage certificate) before, or immediately
after, the wedding, which provides full descriptions of the couple which has to be signed by them
and by other two witnesses. By placing his signature and seal on it, Kazi authenticates the nikah
nama. The nikah nama is printed in Urdu as well as Hindi.
▪ Hindu Law:
Procedures and requirements for solemnization of marriages of Hindus are prescribed in Hindu
Marriage Act, 1955. The requirements stated in The Special Marriage Act and Hindu Marriage Act
is similar in nature. The marriage won’t be declared void in case the couple is violating section 4
of Hindu Marriage Act, but if the couple violates section 5 of The Special Marriage Act, the
marriage will be considered as void.
Ceremonies of marriage and religious rites must be conducted20. Without the specified practices
and ceremonies, the marriage won’t be considered as legal. The marriage can be solemnized before
19
The Special Marriage Act, 1954, § 5.
20
The Hindu Marriage Act, 1955, § 5.

the registrar or after the registrar conducts the marriage ceremony in compliance with Hindu
beliefs. To encourage marriages in the Hindu religion, the state can make rules for registration.
▪ Christian Law:
The Indian Christian Marriage Act, 1872 obliges all parties to Christian marriage being solemnized
according to its terms21. The Indian Christian Marriage Act, 1872 is archaic since it divides between
Christian and Indian Christians. The Act establishes separate laws for marriages of Indians and
Christians, and also for the adherents of different religions.
The Indian Christian Marriage Act, 1872, set out the basic measures required22 to receive a
marriage certificate. Those are:
1. Men must be twenty-one years old and women must be eighteen years old to marry.
2. It is not allowed for any one of the intending-to-marry contestants to have a spouse or
partner still living;.
3. Each party shall give the wows to the other party in the presence of two other eyewitnesses
who must have license23.
▪ Parsi Law:
The Parsi Marriage and Divorce Act was first passed in 1865, and then in 1936 it was repealed
with a revised edition. In 1988, the Act was revised in certain regions. In Parsi marriages, the
ceremony takes place in front of the priests. They are expected to sign the ceremony in the
specified manner. The witnesses may even be requested to sign their names to validate the
event. The officials are mandated by statute to submit the supporting documentation to the
Marriage Registrars. In order to preserve the marital legitimacy, a marriage may be invalid if a
21
Indian Christian Marriage Act, 1872, § 4.
22
23

priest ignores to sign off on the marriage. A priest who fails to administer a marriage is a
convicted suspect and will serve a prison term up to 3 months and be fined a hundred rupees
or will be both. Parsi Marriage and Divorce Act, 1936, specifies under what circumstances a
Parsi marriage is legal24. The Parsi Marriage and Divorce Act, 1936, says, “Marriages and divorces
must be registered but that should not impact either the legitimacy of the marriage or the divorce”.
Conclusion
Marriage is an institution in India that is considered sacred. Marriage is a significant cultural part. India
is a highly diverse region with a large religious population, leading up to different cultural values. Caste
and religion has a large impact on Indian society. There are many debatable topics all over the country
and Inter-caste and inter-religious marriage is one of them. Earlier, inter-religious marriages were not
protected by any statute. In the year 1954, the law makers felt that there is a need for such a statute,
where an individual may get married with the partner of their choice irrespective of their religion.
Therefore, the Parliament passed The Special Marriage Act, 1954, enabling a unique concept of
marriage for all Indians and Indian residents abroad, regardless of the caste and faith. The Special
Marriage Act, 1954 allows inter- caste and inter-religious marriages. The Special Marriage Act is the
only marriage law which treats child marriage as void.
Under chapter III of the Act, marriage solemnized in any other form under any law may also be
registered under the Act. That means if a marriage is initially solemnized in any personal law, they can
also register such marriages in Special Marriage Act.
Due to many procedures involved such as collection of various documents etc. the registration of the
marriage becomes time consuming. One must go through a long procedure to register their marriage,
which is considered as one of the drawbacks.
Registration of marriages must be compulsory which can reduce many crimes such as child marriage,
bigamy and desertion. Every state shall enact laws to facilitate registration under the said law. Very
few states have the concept of compulsory registration of solemnized marriages under different
24

personal laws. Due to completely different customs in different States, there is no general procedure
of registering marriages under personal laws. People usually do not register their marriage, which
results only in a minor fine. Thus, the courts should raise the penalty for those who have not registered
their marriage and the rules should indeed be tight and efficiently followed.

Provisions Concerning Extra Territorial Jurisdiction Under the

Information Technology Act, 2000
-Sparsh Jain
1st year student of Symbiosis Law School, Noida.
Abstract
The Internet and the growing cyber space are a major part of our lives these days. Online transactions,
the data being stored online and to ensure data privacy are of growing importance to governments,
enterprises and even consumers throughout the world. With the constant growth and expansion of
cyberspace it has given rise to many critical opportunities involving lack of security and data being
stolen giving rise to increasing cyber crimes these days. The internet does not have any physical
limitations and geographical boundaries therefore these crimes can take place from anywhere in the
world by someone with access to the bare minimum of resources. The purpose of this article is to
analyze the provisions of extra territorial jurisdiction under the Information Technology Act of 2000
and what are the issues that we need to address to come through with an effective way to exercise the
jurisdiction of the Indian courts or any courts for a fact outside their territory and reduce cybercrime.

Introduction
Today the entire world can be considered as one whole community. The entire world is connected
with the help of the internet. The internet has made our life easier by simplifying the communication
as well as information sharing process. The internet created a cyberspace which is basically a virtual
environment created by interconnected computers and computer networks online without any
boundary of distance and physical limitations.
Although the internet and the continuous developments in the online world have made our life so
much easier but on the other hand it has given rise to increasing cases of cybercrimes or cyber offences.
What are cyber offences?
Cyber Offences refers to offences that are committed against individuals or groups of individuals with
a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm
to the victim directly or indirectly, using modem telecommunications network such as Internet (Chat
rooms, emails, notice boards and groups) and mobile phones (SMS/MMS). There are numerous types
of cyber-crime involving hacking, identity theft, malicious viruses, phishing attacks, IPR violations,
cyber terrorism, frauds, pornography, spam, etc. One such offence of Child pornography was newly
introduced in Section 67 B of the information technology act in an attempt to address the issue of
child pornography1.
The internet does not have any territorial boundaries to which it can be restrained nor does it have
any physical boundaries. Cybercrimes covers all sorts of criminal activities be it minor electronic crime
to more serious offences. Activities such as theft of personal information, cyber bullying, cyber
stalking, or even illegal gambling, etc. fall under the definition of cybercrime however these offences
are not only the concern but it also raises the question of jurisdiction in order to deal with the cases
of such cyber-crimes. It is evident that cyberspace has no restriction of a physical boundary therefore
1
The Information Technology Act, 2000, §67(B).

it becomes convenient for criminals to access the system from any part of the world with the means
of computer or any electronic devices2.
For instance, A person sitting in Bangladesh could break into a bank’s host computer in India and
transfer millions of Rupees to another bank in Switzerland, all within a blink of an eye. He would
require the bare minimum like a computer and a cell phone device to carry out this offence after which
the main confusion of jurisdiction arises as to where the complaint should be filed for the trial of such
cases in which multiple jurisdictions are involved.
What is jurisdiction and what role does it play in tackling cyber crime?
Jurisdiction is the power or authority of the court to hear and determine the cause and adjudicate upon
the matter that is litigated before it or the power of the court to make legal decisions and judgements
regarding a particular situation.
Certifying jurisdiction in respect to cyber space becomes a task which requires great efforts. In cyber
jurisdiction multiple parties are involved across various parts of the globe and the only thing common
among them is the virtual connection they have with each other online via the internet therefore we
cannot have a clear idea about the parties and the place where they can be held liable thereby making
it difficult to determine the jurisdiction under which the accused will be held liable.
Why is there a growing need of cyber laws in India for the past few years and to equip the judiciary with enough extra-
territorial powers to tackle cyber crime?
Computer crimes had not emerged as a major problem area of the law enforcement agencies in India
until recently. The main reason for low incidence of computer-related crimes in India was that
computerization of banks and other financial institutions were still in early stages. Further, the
networking of computers had not yet taken place in any big way in the sensitive sectors which could
be vulnerable to theft and alteration of data. But as the process of computerization has now picked
2
Kirty Ranjan, Analysis of Cyber Jurisdiction in India, Legal Services India,
www.legalserviceindia.com/legal/article-3329-analysis-of-cyber-jurisdiction-in-india.html.

up, significant increase in computer crime is expected in the near future. Cyber-crime has now become
a reality in India. Difficult to detect, seldom repeated and even more difficult to prove, computer
related crime lacks traditional paper audit trail, is away from conventional policing and requires
specialists with a sound understanding of computer technology. Furthermore, as the company on its
path to become a superpower in the next few years the government is pushing for digitalisation of the
economy for a smooth and better functioning process to be followed and with the country posed to
enter the information superhighway for industry and banks networked, the realization of the dangers
and threats is are finally being realised. The major areas of concern, which are highly vulnerable to
computer crimes, include critical infrastructures like banks and other financial institutions,
telecommunications, airlines, railways, power sector and other crucial departments of both the
Government of India and numerous States etc.3
The government of India has a job to protect the citizens from any threats that may lead to the
hindrance in the functioning of the day-to-day life of the people. Just like we fear war, with the
advancements in the online cyberspace the biggest threat to a nation is cyber warfare. Everything is
now stored online on secured servers so if anyone were to hack or gain unauthorised access to such
documents then give rise to a threat to national security. Therefore, the government needs to be
equipped with the adequate methods to prevent such crimes as well as to punish the people that try
to engage in such malicious activities.
Extra territorial jurisdiction takes into account any offence which is committed by a citizen of India
or even by any person on a ship or aircraft registered in India or by any person who targets a computer
resource located in India, beyond the territories of the Indian Subcontinent.
Problems and shortcomings in the legal field regarding the provisions of extra
territorial jurisdiction with special emphasis on India
3
Mr. Kush Kalra, Emergence of Cyber Crimes: A challenge for the New Millennium,
docs.manupatra.in/newsline/articles/Upload/4730150C-4A12-4EBA-8CAF-F1146FDD5657.pdf.

One of the main problems in tackling cyber-crimes is the disparities among the laws of different
countries and their ways to deal with cyber-crimes.
Suppose Mr. X commits an offence from his home computer targeting a network in India. Therefore,
he might or might not be held liable cause something which is considered as an offence in India might
not be an offence in his home country thereby leaving the Indian government and the Indian courts
incapable of carrying out their jurisdiction and litigating against the crimes committed by the accused.
A variety of National laws that apply to foreign people or companies outside the territorial boundaries
of a country are intended to have extraterritorial effects. Some laws are intentionally made to have
extraterritorial effects aiming to ensure that people do not become victims of law-breakers from
outside their jurisdictions. We have established that the governments have a responsibility to protect
their citizens from illegality, but the global and cross-border nature of the Internet can create conflicts
arising from activities that are legal in one country but might be illegal in another. In the early 2000s,
as the Internet became popular and commercialized, the Yahoo case highlighted the challenges of
Internet regulation. The American search and listings company, Yahoo, was forced to stop advertising
Nazi memorabilia for sale in France, and its executives were faced with criminal charges.4
However, many Internet-related laws and international frameworks only regulated where absolutely
necessary to promote commerce, and promoted openness and innovation in the development of the
networks. For example, the idea of ‘mere conduit’ – where network operators are not liable for the
content of traffic – is found in the laws of many countries, including the European E-Commerce
Directive of 2000. Governments took a light regulatory touch domestically and coordinated regionally
and internationally to allow the Internet to flourish.
In the cyber world every State should have its national law having extraterritorial jurisdiction to tackle
the situation and challenges of extraterritorial nature present in the cyberspace environment as there
were no international regulations and instruments relating to cyber jurisdiction around 1995.
Therefore, the United Nations Commission on International Trade Law adopted a model law on e-
commerce in 1996 which was adopted by the General Assembly. The general assembly recommended
4
Licra v. Yahoo!, High Court of France, core.ac.uk/download/pdf/235401821.pdf.

that all States should give favourable consideration to the said model law on commerce. India being
signatory to said model law enacted The Information Technology Act, 2000 to make law in tune with
the said model law.
Section 1 of the information technology act states that:
The provisions in section 1 (2) shall extend to the whole of India and, save as otherwise provided in
this Act, it applies also to any offence or contravention thereunder committed outside India by any
person.5
Section 75 of the Information technology Act also addresses this issue stating that the provisions of
the information technology act shall apply to any offence
▪ Subject to the provisions of sub-section (2), the provisions of this Act shall apply also to any
offence or contravention committed outside India by any person irrespective of his
nationality.
▪ For the purposes of sub-section (1), this Act shall apply to an offence or contravention
committed outside India by any person if the act or conduct constituting the offence or
contravention involves a computer, computer system or computer network located in India.6
Since there are no physical boundaries and limitations for a cyberspace the information technology
act is empowered with the help of extraterritorial jurisdiction to develop a safe online environment
and to hold the people committing cyber crimes accountable for their actions irrespective of their
nationality.
One of the biggest drawbacks of the IT Act, 2000, is that it doesn’t take into account the jurisdiction
of the Courts in the cyber world. It means the present law of jurisdiction of the physical world is
applicable to the cyber world as well. In India, Sections 15 till 20 of the Indian Civil Procedure Code
(C.P.C), 1908, and Sections 177 till 188 of the Indian Criminal Procedure Code, 1973, deal with civil
and criminal jurisdiction respectively.7 Under the Cr.P.C., territorial jurisdiction depends upon the
5
The Information Technology Act, 2000, §1(2).
6
The Information Technology Act, 2000, §75.
7
Supra note 3.

place where offence or part of the offence is committed. Under the C.P.C, the territorial jurisdiction
is based upon:
▪ place of residence of the defendant8, and

▪ place where cause of action arises. But in the cyber world there may be more than one place
of cause of action, such as place of cause of action may be a place where a Website is accessed,
or place where a server is located or place from where an electronic record is sent or place
where an electronic record is received.9
However, the IT Act, 2000, time and place of dispatch and receipt of electronic record is defined.
Section 75 of the Information Technology Act, 2000 extends jurisdiction of Indian Courts to an
offence or contravention committed outside India by any person irrespective of his nationality.
Further, this law is to apply to an offence or contravention committed outside India by any person if
the act or conduct constituting the offence or contravention involves a computer, computer system
or computer network located in India.10
For example, Mr. Z, an Australian national, residing in the USA, gains unauthorized access to a
computer located in China and deletes information. Mr. Z has used a computer located in India to
gain unauthorized access. Mr. Z will be liable under the provisions of the IT Act, 2000.
The main difference between the Indian Penal Code and the IT Act, 2000 with regard to
extraterritorial jurisdiction, can be demonstrated by the following example.
If a foreign national let’s say Patrick Lehman, say from Germany legitimately procures weapons from
India and uses the same for committing a criminal act in Germany or any other country in the world
then she would not be liable for any offence in India as per the Indian Penal Code. However, if Patrick
were to use a computer located in India to hack the German government’s website or commit any
other offence under the IT Act, 2000, then she will be liable for that offence in India.
8
The Indian Civil Procedure Code, §15 to §20.
9
The Indian Civil Procedure Code, 1908, §177 to §188.
10
Supra note 6.

The problems with the differences in the laws in various countries and various provisions arises when
we look at the practical aspect of such provisions such as that of mere conduit which might be
applicable in one country but might not be enforceable in the other.
Mere conduit simply is a law which enforces that the network operators are not liable for the content
of traffic. This provision has been adopted by various countries such as the United States of America
and can even be found in the European E-Commerce Directive of 2000. The governments generally
maintain a light regulatory touch domestically and coordinate accordingly at an international level for
the internet to flourish at a global level.
One of the things that we can use to tackle the issue of cybercrime in respect with extra territorial
jurisdiction would be the strengthening of the capacity of lawmakers and the judiciary.11 The judiciaries
in many developing countries including India need to be trained in the area of cyber laws. Legal issues
around e-commerce are still relatively new. We can’t tackle a problem if we don’t understand each and
every aspect of it therefore to convince and prosecute the accused in their country, we have to be
educated with each and every technicality there is that could help us or either strong arm us when we
bring it up at an international level.
Moreover, the international committee should develop a professional and strict procedure of action
to be taken when such crimes are committed by someone from their country or anyone else around
the court and comply with the other country to bring the accused forward rather than sheltering him
on a technicality.
Conclusion
Majority of the crimes committed that fall under extra territorial jurisdiction relate to data privacy and
personal data of individuals as well as of big corporations that are targeted by hackers from all over
the globe. In the global economy, accumulating personal data of the consumers has become a driving
11
Note by the UNCTAD secretariat, Cyberlaws and regulations for enhancing e-commerce: Case studies and
lessons learned, United Nations Conference on Trade and Development, unctad.org/system/files/official-
document/ciiem5d2_en.pdf.

fuel for much commercial activity online. This data is used by the corporations in understanding as
well as influencing consumer behaviour for commercial profit but if fallen into the wrong hands may
further raise concerns about the stability of the network that we have online, something which we all
access everyday very easily every now and then.12
The nature of the internet is such that it is ever evolving and its use is increasing day by day and the
internet has no limits, no physical boundaries. Therefore, before going ahead into this new era of
digitalisation the international community should take necessary steps to formulate a confined set of
international laws addressing the problems of each and every country. An international body such as
the United Nations should assume the lead once again not only encouraging member states to
formulate national laws in this crucial area but also come out immediately with a model law to facilitate
such a move and bring about uniformity in national laws covering cyber jurisdiction.
There is much work to be done in the implementation of the laws. Laws are made for everything but
the problem arises due to the lack of proper implementation. One thing might sound good on paper
but might not be practical in the real world thereby leading to loopholes being generated. The internet
is constantly expanding and is dynamic in nature and therefore the laws governing it should be
implemented according to the situations prevailing in the real world. This will provide us an ability to
curb cybercrime while simultaneously allowing the online cyber space to grow and evolve and to be
used by the billions of people around the world safely without the customers feeling vulnerable and
exposed to malicious activities thereby creating a safe environment after all.
12
Ibid.

Hong Kong: A Land Which Neither Let’s You Stay, Nor Let’s You
Leave
-Parishi Jain
2nd year student of SVKM’s Pravin Gandhi College of Law.
Unless someone is living under a rock or has taken a complete social media detox, only then wouldn’t
they be aware of the plight of the Hongkongers resisting the imposition of laws made by the officials
sitting in Beijing. It can be said that Hong Kong has long been a topic of debate as well as a land long
desired by all. The last imperial dynasty of China, the Qing dynasty first ceded it to the British Empire
back in 1842 while ending the First Opium War1 and through what is formally called the Treaty of
Nanjing2; Hong Kong became a British Crown Colony. After winning the Second Opium War Britain
was granted the New Territories Lease3 for 99 years, starting 1898. Hong Kong was later occupied by
Japan during World War II (from 1941 to 1945). However, by the end of 1945 Hong Kong was
liberated from Japan and brought back under the curtain of the British Empire with aid from the
Chinese troops.
The British Prime Minister Margaret Thatcher and her Chinese counterpart Premier Zhao Ziyang
signed the Sino-British Joint Declaration4 in 1984 and on July 1, 1997, the Handover of Hong Kong to China
1
Kenneth Pletcher, Opium Wars – Chinese Wars, Britannica (Feb. 05, 2020), www.britannica.com/topic/Opium-
Wars#ref326269.
2
Satyavrat Nirala, Treaty of Nanjing – China-United Kingdom [1842], Britannica (Sep. 01, 2015),
www.britannica.com/event/Treaty-of-Nanjing.
3
Chi-Keung Leung, Hong Kong – Administrative Region, China, Britannica (Jan. 25, 2021),
www.britannica.com/place/Hong-Kong/Manufacturing.
4
Gary Cheung, What is Sino-British Joint Declaration and what does it have to do with Hong Kong extradition
crisis, South China Morning Post (Jul. 04, 2019), www.scmp.com/news/hong-
kong/politics/article/3017318/explainer-what-sino-british-joint-declaration-and-what-does.

took place and the Hong Kong Basic Law5 came into being. This event incited a wave of emigration from
Hong Kong; however, as the saying goes, history is about to repeat itself.
As is anticipated, Hong Kong is to witness major emigration from its lands, again. The Fugitive
Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 or as
colloquially popular the 2019 Hong Kong Extradition Bill6 caused severe civil unrest in Hong Kong
which marked the beginning of months-long protests. Alternatively, the draconian and repressive
National Security Law passed in 2020 added fuel to the flame. This law made secession (breaking away
from mainland China), subversion against the Chinese government along with terrorist activities and
collusion with foreign forces as threats to national security.7 This act also demands the surrender of
travel documents in certain circumstances.8 This act since its inception on July 1, 2020, has already
resulted in the arrests of over 100 people including prominent activist Joshua Wong and media tycoon
Jimmy Lai.9 Along with the vaguely defined terms of the bill, the root of the problem swells to the
fact that this law was made by ‘China’s rubber-stamp parliament’, the National People’s Congress and
not by the independent leadership of Hong Kong. As China tightens its grip on the semi-autonomous
city, an increasing number of pro democracy politicians and activists have already gone into exile10 and
furthermore, it has also acted as a catalyst for the mundane Hongkongers to begin contemplating
emigration. However, it seems as if even this option has also been snatched away from civilians.
The government’s new proposal radically modifies the immigration and emigration policy of the city.
The said proposal seeks to add Section 6A to the existing law11 which will essentially ‘empower’ the
Secretary of Security to make regulations authorizing the Director to direct that a particular passenger
5
Hong Kong: what is the Basic Law and how does it work? , BBC News (Nov. 20, 2019),
www.bbc.com/news/world-asia-china-49633862.
6
Mike Ives, What is Hong Kong’s Extradition Bill?, The New York Times (June 10, 2019),
www.nytimes.com/2019/06/10/world/asia/hong-kong-extradition-bill.html.
7
Hong Kong Security Law: What is it and is it worrying?, BBC News (June 30, 2020), www.bbc.com/news/world-
asia-china-52765838.
8
What the proposed immigration law for Hong Kong is, and why it’s worrying, NDTV News (Feb. 13, 2021),
www.ndtv.com/world-news/whats-the-proposed-immigration-law-of-hong-kong-and-why-is-it-worrying-2369690.
9
Ibid.
10
Hong Kong: alarm over proposed law that could ban anyone from leaving, The Guardian (Feb. 13, 2021),
www.theguardian.com/world/2021/feb/13/hong-kong-alarm-over-proposed-law-that-could-ban-anyone-from-
leaving.
11
Immigration Ordinance (Cap. 115), www.elegislation.gov.hk/hk/cap115.

or crew member may or may not be allowed to board a carrier.12 Furthermore, via this amendment,
an advanced passenger information system will be set up channelling the data of people arriving in the
city directly to the immigration department to make denial of entry or detaining at arrival easier. 13
Another key feature of this bill is the increase in the penalty for airlines bringing such claimants into
the city. To reflect the gravity of the breach, a maximum of HK$100,000 (US$ 12,900) is set.14
This move by the government comes after the controversy regarding Youtuber Bob’s Your Uncle’s
recent travel review. On December 14, 2020, the Hong Kong Youtuber reviewed Virgin Atlantic’s
Upper-Class Flight to London wherein he spotted a group of people without luggage lingering around
the airport. He commented, “Rarely do you see passengers flying long haul without a single carry, not even a
backpack!” and continued that, “Less than 30 years (after the Handover of Hong Kong in 1997), and we’re already
on par with Pyongyang.15 ” Since the release of this video, it’s believed that the airport is under constant
surveillance by the National Security Police. Moreover, Secretary for security, John Lee has told the
Legislative Council of Hong Kong that amendments to the existing firearm law will also be required
to allow border guards to carry guns.16
Over the growing concerns by such statements, former opposition politician Lam Cheuk-ting has
commented that “(Exit bans) would seriously violate the rights of Hong Kong’s residents to come and go freely, as
the director of immigration will be able to restrict individuals’ movements without the need for any court order.17 ”
The United Kingdoms, Canada18 and Taiwan19 have already announced plans to let in the individuals
willing to leave Hong Kong to escape the wrath of the Chinese government. It is believed that the
12
Chan Yun Nam, Lu Xi & Lau Siu Fung, Planned changes to Hong Kong Immigration law sparks fears of exit
curbs, Radio Free Asia (Jan. 20, 2021), www.rfa.org/english/news/china/hongkong-immigration-
01202021083931.html.
13
Ibid.
14
Natalie Wong, Hong Kong Security Bureau accuses Bar Association of causing confusion by claiming law change
let's authorities stop residents leaving city, South China Morning Post (Feb. 14, 2021), www.scmp.com/news/hong-
kong/law-and-crime/article/3121674/bar-association-causing-confusion-saying-proposed-law.
15
Supra note 12.
16
Supra note 12.
17
Supra note 12.
18
Craig McCulloch, Canada eases immigration from Hong Kong, VOA News (Feb. 12, 2021),
www.voanews.com/americas/canada-eases-immigration-hong-kong.
19
Supra note 12.

UK is said to introduce a new visa to 70% of the population of Hong Kong, which roughly amounts
to 5.4 million individuals, to come and live in the UK. An estimated 300,000 people are expected to
take up this offer.20 However, the newly proposed immigration policy would only make it tough for
civilians to leave the country.
Recently, the influential Hong Kong Bar Association (HKBA) wrote21 to the Legislative Council citing
the need for such legislation barring entry and exit of people is “difficult to understand 22”. The
Association further expressed its concern and stated, “About the proposal to confer an apparently unregulated
power to the Director to prevent Hong Kong residents and other individuals from leaving Hong Kong. It is particularly
troubling that the grounds on which such an intrusive power may be exercised are not stated in the proposed legislation,
and no explanation for why this power is necessary, or even how it is intended to be used by the bureau, is set out.”23
To this, the Hong Kong’s security bureau refuted stating, “In regard to the recent written submission by the
HKBA to the Legislative Council, in which the association’s standpoint about the relevant provision failed to reflect
correctly to the objectives of the provision and relevant facts, and led to unnecessary misunderstanding, we feel
disappointed.”24 The Bureau further asserted that under the Convention on International Civil Aviation,
immigration authorities can request airlines to not allow certain individuals to board the plane. The
statement added that this is to bar potential asylum seekers from entering Hong Kong.25 Alternatively,
it is being claimed that the freedom to travel as enlisted under article 3126 of the Basic Law and Article
8 (2)27 of the Bill of Rights will be “maintained”.
20
Michael Bristow, The Hong Kong migrants fleeing to start new lives in the UK, BBC News (Jan. 19, 2021),
www.bbc.com/news/world-asia-china-55357495.
21
Further Submission of the Hong Kong Bar Association on the Immigration (Amendment) Bill 2020,
www.hkba.org/sites/default/files/Immigration%20%28Amendment%29%20Bill%202020%20-
%20Clause%203%20-%20Further%20Submission%2011.2.2021.pdf.
22
Supra note 8.
23
Hong Kong lawyers oppose greater powers to immigration director to stop residents from leaving the city,
Business World (Feb. 13, 2021), www.businessworld.in/article/Hong-Kong-lawyers-oppose-greater-powers-to-
immigration-director-to-stop-residents-from-leaving-city-/13-02-2021-377336/.
24
Supra note 14.
25
Supra note 14.
26
Article 31- “Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative
Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or
leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region
without special authorization.”
27
Article 8 (2) – Everyone shall be free to leave Hong Kong.

It’s fascinating to see the lengths that the officials would go to make it seem that a despotic and
repressive, such as this as immigration policy, is right, just and fair and not autocratic, unjust and
unfair. The modern world which preaches itself as being the ideal one has once again overlooked the
principles that it has set for itself. The said immigration proposal not only violates the national laws
and rights guaranteed to the Hongkongers but is also in clear violation of Article 13 (2)28 of the
Universal Declaration of Human Rights; it could potentially re-victimise the civilians trying to flee torture
and persecution. It’s only a matter of time till a government that is made for the people, by the people
and from the people is crumpled by the people themselves and as Aldo Leopold has said –
“A thing is right when it tends to preserve integrity, stability and beauty of the biotic community. It is wrong when it
tends otherwise.”29
28
Article 13(2)- “Everyone has the right to leave any country, including his own, and to return to his country.”
29
Daniel Christian Wahl, We need a land ethic for economic life, Medium (Mar. 11, 2018), medium.com/age-of-
awareness/we-need-a-land-ethic-for-economic-life-f81297216199.

The Legality of Prostitution in India: An Extensive Analysis
-Divvela Jyothirmai Anusha

2nd year student of Amity University Mumbai.
Abstract
The oldest profession in India is Prostitution. Generally, people hold a misconception that it is illegal.
Prostitution is not illegal as long as such centres are licensed. Owning and managing a brothel and
pimping are illegal activities. Major cities where such brothels operate illegally in large numbers are
Kolkata, Delhi and Mumbai.
In this paper, we will be focusing primarily on the relationship between prostitution and Indian culture,
along with the mentality of the person buying or selling sex, the difficulties faced by sex workers, and
how prostitution legalisation can help strengthen the scenario, not forgetting that prostitution is not
just about female prostitutes, but also the male counterpart, albeit less in number and not the male
counterpart. We do not remove male sex workers when enacting legislation for female sex workers.

Introduction
Prostitution is a severe social issue common in India and its solution has been made difficult, but
problems are still present. Prostitution is a gender-specific practise, like other types of abuse
committed by men against women; girls and women are the vast majority of victims, while men are
constantly the perpetrators.
1
The word itself, prostitution, speaks of a woman's condition. The term prostitution comes from the
Latin word 'prostituere' which means 'publicly revealing'. Prostitution involves giving or receiving a
body for hire for sexual activity, but excludes spousal sexual activity. Performing for hire or proposing
or consenting to perform for hire while there is an exchange of value, either of the actions such as
sexual intercourse or other penetration to any person's genitals through physical contact in order to
fulfil the offender's sexual desires. It is a woman's ordinary lewdness for money.
2
Moreover, it becomes an arduous job to find an accurate and detailed picture because of such a large
amount of stealthy prostitution at every level. It is an enterprise that takes full advantage of the
vulnerability of human beings, especially children and women, in violation of their human rights and
makes them subject to financial transactions through the use of power and pressure, whether for the
purposes of sex, labor, servitude or slavery.
The world has taken a consistent stance in today's globalised human resources world condemning this
gross abuse of human resources and has urged the government to take effective action against it.
Basically, this work aims to focus on the best approach to testing the problem of prostitution
1
Rupam L.,Uniform Civil Code Towards Gender Justice, Legal Services
India,http://www.legalservicesindia.com/article/1832/Uniform-Civil-Code-Towards-Gender-Justice.html.
2
Anuj Kumar,Legalization of Prostitution in India: Need of the hour, legaldesire.com (May 23, 2016),
https://legaldesire.com/legalization-of-prostitution-in-india-need-of-the-hour/.

legalisation in India. Giving it a legal mandate would prompt women to have a healthier and safer
society. From a particular angle, the argument is to be understood.
Prostitutes should be sensitized about their rights and interests, education, health, ability to choose or
reject routine medical check-ups, financial support, accident coverage and other advantages. They
should also be given a voice that, in the event of any gross misconduct, will give them justice.3
Background
Prostitution is an old occupation in India. In fact, in various Hindu mythological inferences referred
to as apsaras, there are mentions of sex workers. The Devadasi system existed during the pre-colonial
era, where it was a popular practise among Hindus to give their female child as a sign of their devotion
to God. In the literal sense, Devadasi means devoted to the god, that is, they were married to the god
and did not have to marry any mortal being.
They were women who were sexually liberated and excelled in diverse fields of art, including classical
dance and music. Colonialism, however, brought an exploitation and repression system. The British
began to reflect their own social constraints on these women, where the fundamentals of sexual
freedom, femininity, art and culture were converted into devotion, Bhakti, etc., and furthermore, with
the declining feudalism and the end of colonialism, the temple priests began to mistreat these women.
Leaving them exposed to sexual abuse and hunger, therefore. This is one of India's oldest ways of
prostitution.
3
Sathya N., Prostitution: A Brief History, Speakingtree.in (Feb.12, 2018),
https://www.speakingtree.in/allslides/prostitution-a-brief-history/child-prostitution-in-india.

Are men also working as sex workers
In the past, only women were used as prostitutes and men were their customers, but now male, female
and transgender people are all employed in this field in the 21st century. Males are growing at a great
pace as prostitutes in India, according to the BBC report. It also notes that they offer sex to male
clients while there are no female clients. Gigolo is the word for male prostitutes.4
Causes of Prostitution
The situation began to deteriorate after the fall of the Mughal empire, particularly for the lowest strata
of society, the women who worked in harems, palaces and brothels. The main cause of prostitution is
poverty. It is difficult for a woman to be financially independent in India's patriarchal society, especially
when she has been deprived of education, independence and skills. Prostitution is therefore the only
occupation in which to receive cash.
The vulnerability of women to sexual abuse is a result of a restrictive, orthodox Indian culture that
sees them merely as an item or a commodity. The prevalent caste system in India, where oppressed
females are often sexually abused and left to rot in the impoverished system, is another major cause
of prostitution. Other explanations for prostitution are the lack of sex education, kidnapping and
abduction.5
4
Diva R., Legal aspects related to prostitution in India, ipleaders intelligent legal solutions (May 22, 2020),
https://blog.ipleaders.in/legal-aspects-related-to-prostitution-in-india/.
5
Manoj W., The Legal Framework of Prostitution in India, SAGE Publishers,
(2008).https://sk.sagepub.com/books/prostitution-and-beyond/n12.xml.

The Practice of sex trade
Before contending with the legalization of prostitution, the nature of it and the need for it must be
understood in society and, in particular, the Indian one where sex is still a big taboo. Various
individuals also argue against the legalization of prostitution and seek the criminalization of the act,
and its immoral existence is mostly the reason behind their point of contention.
Nevertheless, we do not know that, while most individuals regard prostitution as something unethical,
the sex work industry is constantly thriving just as every other industry operates on demand. If demand
rises, then the company prospers in terms of marketing.
The market for sex transactions is so strong that its origins have spread from the red light areas to
private massage parlours and online platforms. Fully criminalising the act would be like putting a blind
eye on the real victims of sexual abuse and offering the sex workers a free passage to more persecution
and brutality.
Laws Related to Prostitution in India
The Constitution of India, under Article 236, prohibits trafficking in every form including commercial
sexual exploitation of women and girls. We have special legislations like the Immoral Traffic
Prevention Act (ITPA) and local legislation like Goa Children's Act etc. in addition to the provisions
in the IPC (Indian Penal Code).
Immoral Traffic (Prevention) Act-1956
6
The Consti. Of India, 1949, Art. 23.

The Immoral Trafficking Prevention Act, 1956 ('ITPA'), India's main sex work law, does not
criminalise prostitution or prostitutes per se, but primarily punishes third-party activities that
encourage prostitution, such as brothel keeping, living off earnings and procurement, even if sex work
is not forced
Section 3. Punishment for keeping a Brothel or allowing premises to be used as a Brothel.
(1) Any person maintaining or running, acting or assisting in the maintenance or management of a
brothel shall, on first conviction, be punishable by a strict term of imprisonment of not less than one
year and not more than three years, and also by a fine of not less than two thousand rupees and, in
the event of a second or subsequent conviction, by a strict term of imprisonment of not less than one
year and not less than one year.
(b) Being the owner, lessor or landlord of any premises or agent of such owner, lessor or landlord,
causes the same or any part thereof to be used as a brothel, knowing that the same or any part thereof
is intended to be used as a brothel, or is knowingly a party to the use of such premises or any part
thereof as a brothel, shall be punishable by imprisonment on first conviction for a period of time
which may be punishable by first conviction.7
(2-A) For the purposes of subsection (2), unless proven otherwise, it is assumed that any person
referred to in subparagraph (a) or subparagraph (b) of that subsection knowingly allows the premises
or any part thereof to be used as a brothel or, where applicable, knows that the premises or any part
thereof are to be used as a brothel, if, -
7
Dharmendra C., Legalization of Prostitution in India, Academia.edu (Jan.2009),
https://www.academia.edu/613653/Legalization_of_Prostitution_in_India.

(a) A report is published in a newspaper circulated in the region in which that person resides in order
to discover that the premises or some part of them were used for prostitution as a result of a search
carried out under this Act.; or
(b) Such a person shall be provided with a copy of the list of all items found during the search referred
to in clause (a).8
Section 5. Procuring, inducing or taking person for the sake of prostitution.
(1) Any person who-
(a) Procures or attempts to procure a person for the purpose of prostitution, whether with or without
his/her consent; or
(b) Induces a person to leave somewhere in order to become the prisoner of, or visit, a brothel for the
purpose of prostitution; or
(c) Takes or threatens to take a person or allows a person to be taken from one place to another in
order to carry on or to be brought up for prostitution; or9
(d) Causes or induces a person to engage in prostitution; is punishable on conviction with a strict term
of imprisonment of not less than three years and not more than seven years and also with a fine of up
to two thousand rupees; and if any crime under this sub-section is committed against the will of any
person, the term of imprisonment shall be extended by seven years.:
8
The Immortal Traffic (Prevention) Act, 1956.
9
Dr. P.K. Pandey, Prostitution in India Legal and Social Ramifications, Scribd,
https://www.scribd.com/document/62739533.

Provided that if the person in respect of whom an offence committed under this sub-section :
(i) Is a child, the punishment postulated under this sub-section can be extended to rigorous
imprisonment for a term of not less than 7 years but may extend to life; and
(ii) Is a minor; the punishment postulated under this sub-section could be extended to rigorous
imprisonment for a period of not less than 7 years and not more than 14 years.
It can also be seen that only the actions of the 3rd party are punished by both parts, namely section
3 and section 5, and the other sections of the Act are punished, and new laws are enacted to
prosecute the client who visits the prostitutes.
A dismal picture is provided by the law enforcement situation, viewed from the conventional point of
view. The National Human Rights Commission Action Report conducted during 2002-2004 indicates
that the key problems in the present law enforcement scenario are as follows:
10
• Lack of priority: For different purposes, law enforcement authorities and justice delivery agencies
offer HT problems the lowest or zero priority.
• Insensitivity: Lack of sensitivity is a major challenge in response to human trafficking. It is more of

an attitudinal issue.
• Victimization of the victim: The NHRC study shows that about 85 to 90 percent of those arrested
are women and most of them are victims of trafficking. The NHRC study shows that about 85 to 90
percent of those arrested are women.
10
Gaurav Jain v. Union of India, (1997) (AIR 1997 SC 3021).

• Improper investigation: Whereas a trafficking crime extends across a large canvas as the scene of
crime, starting from the source point and extending to the transit places as well as the destination
areas, the investigation is more often unheard and unrepresented.
• Database: One of the major drawbacks in law enforcement is the fact that there is no database of
traffickers and other exploiters. There is no sharing of intelligence among the stake holders and
therefore, the offenders indeed act with impunity. (Bedi ,Kiran ;Nair.P.M 2008)
Magnitude and Trend of the Problem in India
The data collected by the National Crime Record Bureau (NCRB) shows the magnitude of the
problem of prostitution in India. The Bureau is collecting data under the following heads of crime
which are related to Prostitution and Human Trafficking.11
• Procuration of Minor girls (section 366-A IPC).
• Importation of Girls (Section-366-B IPC).
• Selling of Girls for prostitution (Section-372 IPC).
• Buying of Girls for Prostitution (Section-373 IPC).
• Immoral Trafficking (Prevention) Act 1956.
• Child Marriage Retrain Act, 1929.
11
Madison R., Red Light City: Sex Workers’ Experiences of the City of Joy Madison, Leigh Rose,
https://madisonleighrose.wordpress.com/2012/08/27/red-light-city-sex-workers-experiences-of-the-city-of-joy.

Procuration of Minor Girls (Sec. 366A of IPC) (Incidence...253)
253 cases were reported in the year 2007 as compared to 231 such cases in 2006, accounting for 9.5%
increase over 2006. West Bengal has reported 54 such cases indicating a share of 21.3% at National
level followed by Andhra Pradesh (37) and Bihar (36). An increasing trend was observed in these cases
during the last three years. 12
Selling of Girls for Prostitution (Sec.372 of IPC) (Incidence...69)
“69 cases of 'Selling of Girls for Prostitution' were reported in the country during 2007 against 123
such cases in 2006, thereby indicating a decline of 43.9% over 2006. West Bengal has accounted for
79.7% (55cases out of 69 cases) of the total cases of 'Selling of Girls for Prostitution' reported in the
country.
Buying of Girls for Prostitution (Sec. 373 of IPC) (Incidence...40)
40 cases of 'Buying of Girls for Prostitution' were reported in the country during the year 2007. This
indicates a 14.3% increase in the incidence over 2006 when 35 cases were reported in the country.
Maharashtra has accounted for 77.5% (31 out of 40) cases reported in the country in 2007.13
Immoral Trafficking (Prevention) Act 1956 (Incidence...3,568 Rate ...0.3)
Cases under this Act have registered a decline of 21.4% (3,568) during the year as compared to the
previous year (4,541). 33.6% (1,199) of the total cases reported in the country were reported form
Tamil Nadu whereas Daman & Diu reported the highest crime rate of 2.7 under this head as compared
to the National average of 0.3.
12
Diva Rai, Legal aspects related to prostitution in India, ipleaders intelligent legal solutions (May.22, 2020),
https://blog.ipleaders.in/legal-aspects-related-to-prostitution-in-india.
13
V Sithannan, Immoral traffic: Prostitution in India, Jeywin Publications, (2006).

Child Marriage Restraint Act 1929 (Incidence...96 Rate ...Negligible)
The cases reported under this Act during 2007 have marginally declined by 3.0% over the previous
year (99). Andhra Pradesh (21) Gujarat (14) and West Bengal (9) have reported bulk cases together
accounting for 45.8% of the total cases.14
Shall India Legalize Prostitution?
Some people claim that prostitution in India will be made legal and accepted as part of society because
the prostitution issue is unavoidable. The advantage of legalising prostitution in India would be that
we will at least have a track record of sex workers, such as when most of the bar dancers migrated to
Gujarat and Karnataka and other neighbouring states and started their business underground when
dance bars in Bombay were closed.These women, who live on the edge of life everywhere, can gain
access to medical facilities that can monitor the spread of AIDS by legalizing prostitution. The sex
industry has a very strong need to be regulated like every other industry and empowered with legal
protection. For sex workers and society as a whole, the practical consequences of the occupation being
legal will offer nothing but benefits.Holding prostitution illegal also leads to violence, since prostitutes
and their clients are seen by many criminals as enticing targets for stealing, fraud, abuse, or other
criminal acts15. The perpetrators know that it is unlikely that certain people would report the crimes
to the police and before the attacks take place, the victims will have to accept that they were involved
in the illegal practise of prostitution, now if it is legal then they will probably go and report this to the
police.Benefits of prostitution legalization include:
● Legalizing prostitution and stopping human trafficking in the sex industry.
14
Budhadev Karmaskar v. State of West Bengal (2011) 10 SCC 283.
15
Moni N., Anthoropological Perspectives on Prostitution and AIDS in India, 36 Economic and Political Weekly
no. 42 (2001).

● Prostitution legalization would govern the sex industry.

● Prostitution legalization would eliminate clandestine, covert, illicit and street prostitution.
● Legalization of prostitution, since they will have freedom, will protect women in prostitution.
● Women in prostitution systems want to legalize the sex industry as they are the one who
struggles most because they have no rights.
● Prostitution legalization would promote the welfare of women as they will have convenient
access to medical services that they do not have when it is illegal.
● Recognizing prostitution as an economic practise and thereby allowing women to receive work
permits as sex workers in India.16
● Nevertheless, those who demand that prostitution be "legalised" and regarded and equal to all
other occupations and professions with "respect and dignity" need to address a few
fundamental questions:
● In fact, what does the word "legalize" imply? Does it mean that wherever she wants and
advertises her services, a prostitute can open a brothel or sex parlour? Does it mean that men
or women who supply call girls should be able to set up an office in any neighborhood they
want, just as doctors set up their clinics and put up a hoarding outside the house announcing
that during such and such hours, call girls are available?
● It is ultimately mixed with criminal mafias even in those countries where it is legalised, because
sex trade necessarily comes with sex slavery and violent forms of pornography and sex
trafficking. Does it not risk my life if a brothel owner is free to set up shop in my
neighbourhood? How many are willing to accept a brothel right next to their own home, even
among those who are empathetic towards the plight of prostitutes? How many of us are willing
to let our young children grow up in an atmosphere where it is considered a fully acceptable
practise to rent a woman's body for sex?17
16
Ibid.
17
The Journal of Sex Research,Vol. 38, no. 2, (2001).

● If the vast majority of citizens in India do not want to have brothels operating freely and
lawfully in their communities, if sex workers agreed to operate in specially designated areas
historically known as red-light districts, the only way to provide for "legal" sex work is. Specific
licenses or licenses for licensed brothels may then be obtained by sex workers. But in publicly
defined sex zones, every sex worker does not want to leave.
● Most women, particularly those who operate as girls call high society, tend to operate
unexpectedly, particularly those who want to wear the mask of respectability. Also, most men
who run sex rackets, including female prostitution, would not want to be identified publicly as
pimps and procurers. How does the law regulate those individuals?
● Do they have the right to request its relocation or demand that the call-girl center be moved
to a red-light district after the trade is legalized if people come to know that a person in their
neighborhood is using its premises to operate a call-girl racket? Or does it mean that other
men, in the name of 'respecting' the rights of sex workers to an occupation of their choosing,
must suffer from the existence of such practices and thereby risk their own lives?
● Those who request that sex work be given the same "respect" as any other occupation need
to clarify whose responsibility it is to give or ensure "respect" to prostitutes and pimps who
are their "helpmates." Is the government required to pass a law compelling people not to avoid
prostitutes, as it did to prohibit the practise of untouchability, for example? Through openly
intermixing and dining with castes condemned as untouchable, one may show that one does
not practise untouchability. How can one prove a prostitute's "respect"? Do we have to send
our children to brothels to intermix with the children of sex workers or do we hold special
functions to socially honour the most successful among them?

Conclusion
It would be ignorant to place a blind eye on it and believe that the system and its shortcomings do not
exist in a culture where prostitution has been an age-old occupation and continues to thrive as a
business field. It would mean a better life for sex workers with better pay, health care and safety by
decriminalising sex work with proper rules and regulations and making it legal.18
It will be a revolutionary step, not just as a society, that will remove many social evils from society,
such as child trafficking, rape, etc. Sex trade is a very simple fact of our country and assured benefits
can be achieved by accepting it as a legal occupation with certain laws and protections for all interested
parties. Only the improvement of society will be solved by a better and equitable regulatory system
and the introduction of all safeguarding approaches19.
18
Budhadev Karmaskar v. State of West Bengal, (2011) 10 SCC 283.
19
SukumariBhattacharji, Prostitution in Ancient India, 15 (2), SOCIALSCIENTIST 32 (1987).

The Truth & Youth Law Journal
Volume 1, Issue 1
March, 2021
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Truth & Youth

Special thanks to:

Being closely connected to a number of students pursuing law,

- Dr. Brundaban Panda,

The Right to Physical Hearing in International Arbitration in

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Statutory and Regulatory Framework of Remote Hearing

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arbitration13.There is always a provision on the discretion of parties to request for a hearing 14 or

Remote Hearing in Absence of Parties Agreement

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Witness and Expert Testimony

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Procedural Structure of Remote Hearing

● The Technical set-up of equipment and other connections impediments.

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● Assigning potential time zone differences between participants.

● Use of demonstratives and share during the remote hearing.

● The entire remote hearing must be recorded

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Bayer Corporation v. Union of India– A Fight between Necessity and

Granting of Compulsory Licence of Patent in Pharmaceutical field has been in controversy

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Background Facts of the Case

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Proceeding Before Controller

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Proceeding Before Intellectual Property Appellate Board (IPAB)

– made available to public by the Patentee;

– Reasonable requirements of the public must be satisfied;

– worked in the territory of India.

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Proceeding Before High Court

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Proceeding in Supreme Court

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COVID-19 and Patent

Thomas Cueni, Director General of The International Federation of Pharmaceutical Manufacturers

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The Ever-Mounting Crime of the Connected World: Identity

2nd year student of the University of Mumbai.

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What kind of data could be stolen?

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Potential ways through which identity can be stolen

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Gravity of the issue

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Laws protecting identity theft

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Procedural Requirements for Performance of Marriage under The

2nd year student of Amity University, Mumbai.

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