In a significant reform aimed at promoting amicable dispute resolution, the Government of the National Capital Territory of Delhi recently notified the Court Fees (Delhi Amendment) Act, 2026, enabling litigants to obtain a 100% refund of court fees when disputes are settled amicably, even if the settlement occurs privately without formal court-referred alternative dispute resolution mechanisms. The notification marks a crucial procedural development for civil litigation in Delhi, as it removes the earlier distinction between settlements reached through court-referred ADR processes and those achieved through direct negotiation between parties.

This legislative change represents an important step toward encouraging settlement-oriented justice within the civil litigation framework. Prior to the amendment, litigants in Delhi could recover the entire court fee only if the dispute was resolved through mechanisms such as mediation, arbitration, or Lok Adalat following a reference under Section 89 of the Code of Civil Procedure, 1908. In contrast, where parties independently negotiated and resolved their disputes outside the formal ADR framework, they were entitled to only 50% refund of the court fees under the erstwhile statutory arrangement. This distinction had long been criticised by legal practitioners and scholars as an artificial barrier that discouraged private settlements despite their equal contribution to reducing judicial workload.

Against the backdrop of increasing case pendency and the growing institutional emphasis on alternative dispute resolution, the Court Fees (Delhi Amendment) Act, 2026 reflects a broader shift in procedural philosophy. Modern civil justice systems increasingly recognise that courts should function not merely as forums for adjudication but also as institutions that facilitate consensual dispute resolution wherever possible. By eliminating the earlier differential refund regime and allowing full refund of court fees for all amicable settlements irrespective of the mode of settlement, the amendment strengthens incentives for parties to resolve disputes efficiently. The reform therefore represents a pragmatic legislative effort to align procedural law with contemporary objectives of reducing litigation, promoting mediation, and improving access to justice.

Historical Background

The origins of court fee legislation in India can be traced to the Court Fees Act, 1870, a colonial-era statute enacted by the British administration primarily as a fiscal measure. The Act imposed fees on documents filed before courts, including plaints, memoranda of appeal, and various applications. Its central objective was to generate revenue for the colonial government while simultaneously regulating the inflow of litigation into courts. Although the Act contained provisions relating to the assessment and collection of fees, it did not originally emphasise settlement-oriented mechanisms or incentives for early dispute resolution. Consequently, the refund of court fees was historically limited to exceptional circumstances such as procedural defects or withdrawal of cases at preliminary stages.

The landscape of civil procedure began to evolve significantly in the late twentieth century with the growing recognition that traditional adjudicatory processes were insufficient to address the increasing volume of civil disputes. As court backlogs expanded, policymakers and judicial institutions began exploring alternative models of dispute resolution. This shift culminated in the Code of Civil Procedure (Amendment) Act, 1999, which introduced Section 89 into the Code of Civil Procedure, 1908. Section 89 empowered courts to refer disputes to various ADR mechanisms including arbitration, conciliation, mediation, judicial settlement, and Lok Adalat, whenever the court believed that the matter could be resolved through consensual processes. The introduction of this provision marked a turning point in Indian civil procedure by formally integrating ADR within the judicial system.

In order to complement the objectives of Section 89 CPC, Section 16 of the Court Fees Act, 1870 was interpreted and applied to permit refund of court fees where disputes were resolved through court-referred ADR mechanisms. The rationale behind this provision was straightforward: if parties settled their disputes without requiring full adjudication by the court, the state’s administrative burden would be reduced, and litigants should therefore be allowed to recover the court fee paid at the time of filing the suit. This policy served as an incentive encouraging parties to opt for mediation, conciliation, or settlement through Lok Adalats. Over time, several High Courts recognised the importance of this incentive in promoting negotiated settlements and reducing unnecessary litigation.

However, the legal framework in Delhi developed a distinctive feature through the insertion of Section 16A into the Court Fees Act as applicable to the National Capital Territory. While Section 16 continued to provide full refund of court fees when disputes were settled through court-referred ADR, Section 16A created a separate rule for settlements achieved privately between parties without the formal intervention of ADR mechanisms. In such cases, litigants were entitled to only 50% refund of court fees. Although this provision sought to balance fiscal considerations with settlement incentives, it ultimately produced an unintended consequence: it created a distinction between litigants who resolved disputes through court-supervised ADR and those who achieved settlement independently. Critics argued that this distinction lacked a rational basis because both categories of settlements contributed equally to reducing judicial workload.

This statutory disparity increasingly attracted legal scrutiny and policy criticism, particularly in light of India’s growing emphasis on mediation and negotiated dispute resolution. Legal practitioners and scholars pointed out that many disputes are resolved through informal negotiations between counsel or parties, often after litigation has already commenced. In such circumstances, limiting refund of court fees to only 50% effectively penalised parties who settled their disputes without invoking formal ADR processes. The demand for reform therefore intensified, ultimately leading to legislative intervention through the Court Fees (Delhi Amendment) Act, 2026, which removed this distinction and established a uniform rule of full refund of court fees for all amicable settlements.

The Pre-Amendment Legal Position in Delhi

Before the enactment of the Court Fees (Delhi Amendment) Act, 2026, the statutory framework governing the refund of court fees in the National Capital Territory of Delhi operated under a differentiated regime. The refund provisions were contained within the Court Fees Act, 1870, as adapted and amended for Delhi, and they attempted to balance fiscal considerations with the growing institutional emphasis on dispute resolution through settlement and alternative mechanisms. However, the structure of these provisions ultimately created a procedural distinction between different modes of settlement, which had important implications for litigants and legal practitioners.

Prior to the 2026 amendment, Delhi followed a dual refund regime under the Court Fees Act as applicable to the NCT of Delhi

Prior to the legislative reform introduced in 2026, the refund of court fees in Delhi was governed by two distinct statutory provisions that is Section 16 and Section 16A of the Court Fees Act, 1870, as applicable to the National Capital Territory. These provisions created separate legal pathways for the refund of court fees depending upon the manner in which a civil dispute was resolved. While the legislative intent behind these provisions was to promote settlement and reduce the burden on courts, the practical operation of the dual regime resulted in a differentiated treatment of litigants based solely on the procedural route through which settlement was achieved.

Under this framework, litigants who resolved their disputes through court-referred alternative dispute resolution mechanisms were entitled to a full refund of the court fees paid at the time of instituting the suit. This incentive was designed to encourage parties to accept referrals to mediation, conciliation, arbitration, or Lok Adalats under Section 89 of the Code of Civil Procedure, 1908. By linking complete refund of court fees to these mechanisms, the law sought to strengthen the institutional role of ADR in the civil justice system and reduce the volume of cases requiring full adjudication.

However, a different rule applied where disputes were settled privately through negotiation or compromise between parties without formal court intervention. In such situations, the statutory framework allowed only a partial refund of the court fee. As a result, although both types of settlements effectively removed disputes from the judicial docket, the law treated them differently in terms of financial recovery. This dual structure laid the foundation for the legal and policy debate that eventually culminated in the 2026 amendment.

1. Full Refund under Section 16

Before the amendment, Section 16 of the Court Fees Act, 1870 provided a mechanism through which litigants could obtain a 100% refund of the court fees paid on a plaint or memorandum of appeal when the dispute was resolved through recognised alternative dispute resolution processes. This provision functioned as an incentive mechanism, encouraging parties to accept court-directed ADR referrals rather than pursuing prolonged adversarial litigation. The refund was granted upon the issuance of a certificate by the court confirming that the dispute had been successfully settled through one of the recognised ADR mechanisms.

A 100% refund of court fees was available when the dispute was referred by the court to alternative dispute resolution mechanisms under Section 89 of the Code of Civil Procedure, 1908, and the parties ultimately resolved the matter through such processes. These mechanisms included arbitration, conciliation, mediation, judicial settlement, and settlement through Lok Adalats. Once the dispute was resolved through any of these methods, the court would issue a certificate authorising the refund of the court fee paid by the plaintiff at the time of filing the suit or appeal.

The rationale underlying this provision was rooted in judicial efficiency and policy considerations. By encouraging litigants to resolve disputes through ADR, courts could significantly reduce the time and resources spent on conducting full trials. The refund of court fees therefore served as a practical incentive for parties to pursue consensual dispute resolution. In effect, Section 16 recognised that when disputes were resolved without requiring extensive judicial adjudication, the litigant should not be required to bear the financial burden associated with court fees that were originally intended to facilitate the adjudicatory process.

2. Partial Refund under Section 16A

In addition to Section 16, the legal framework in Delhi also included Section 16A, which addressed situations where disputes were resolved through private settlement without invoking formal ADR mechanisms under Section 89 CPC. This provision was introduced to provide some degree of financial relief to litigants who chose to settle their disputes independently after initiating litigation. However, unlike Section 16, which allowed complete recovery of court fees, Section 16A permitted only a 50% refund of the court fee paid on the plaint.

Delhi had inserted Section 16A, which allowed only 50% refund of court fees where parties settled disputes privately without a formal court-referred ADR process. The provision typically applied where parties negotiated and arrived at a compromise outside institutional mediation or arbitration processes and subsequently informed the court of the settlement. In such circumstances, the court could record the compromise and permit a partial refund of the court fees paid at the time of filing the case.

This statutory design effectively created two distinct categories of litigants within the civil justice system. The first category consisted of litigants who resolved disputes through court-referred ADR mechanisms such as mediation, arbitration, or Lok Adalats and were therefore entitled to a full refund of the court fee. The second category comprised litigants who settled disputes privately through negotiations or compromise agreements without invoking formal ADR mechanisms and were entitled to only half of the court fee as refund.

While both categories of settlements served the same fundamental objective namely reducing the burden on courts and avoiding prolonged litigation, the statutory framework nevertheless treated them differently from a financial standpoint. This distinction became a subject of increasing debate among legal scholars and practitioners, who argued that the law should not penalise parties merely because they resolved disputes independently rather than through court-facilitated processes.

Over time, the differential treatment created by Section 16A was widely criticised as arbitrary and inconsistent with the broader policy objective of promoting settlement and reducing litigation. Critics contended that many disputes are resolved through informal negotiations between parties or counsel, and such settlements are equally valuable in conserving judicial resources. The perception that the law unfairly disadvantaged privately negotiated settlements ultimately contributed to the demand for reform, which was realised through the Court Fees (Delhi Amendment) Act, 2026, abolishing the partial refund regime and introducing a uniform rule of full refund for amicable settlements.

Legislative Reform: Court Fees (Delhi Amendment) Act, 2026 and the New Section 16

The Court Fees (Delhi Amendment) Act, 2026 represents a significant legislative intervention aimed at reforming the refund mechanism of court fees in civil litigation within the National Capital Territory of Delhi. Prior to this amendment, the statutory framework distinguished between settlements achieved through court-referred alternative dispute resolution mechanisms and those arrived at privately by the parties. This differentiation resulted in unequal financial treatment of litigants who had nevertheless contributed equally to reducing judicial workload by resolving disputes amicably. Recognising the need to remove this inconsistency, the Delhi legislature introduced a structural reform to ensure that all amicable settlements are treated uniformly under the law.

The amendment primarily operates through two important statutory changes that is the substitution of Section 16 of the Court Fees Act, 1870 as applicable to Delhi and the deletion of the earlier Section 16A. By eliminating the partial refund regime that existed under Section 16A, the legislature established a uniform principle that litigants should not suffer financial disadvantage merely because they chose to resolve disputes outside formal ADR mechanisms. The revised provision therefore reflects a broader policy shift toward encouraging consensual dispute resolution and reducing unnecessary litigation before courts.

Under the amended statutory framework, Section 16 now provides a comprehensive mechanism for refund of court fees whenever disputes are settled amicably, irrespective of the procedural route through which the settlement occurs. The language of the provision deliberately adopts a wide scope, ensuring that settlements achieved through mediation, arbitration, Lok Adalats, judicial settlement, or private negotiation between parties all fall within its ambit. The reform therefore aligns the court fee regime with the contemporary philosophy of civil justice, which prioritises efficiency, negotiated settlement, and reduction of adversarial litigation.

The structure of the newly substituted Section 16 also clarifies several important aspects regarding the circumstances in which the refund of court fees may be granted. These elements collectively ensure that litigants who resolve disputes without requiring full adjudication by courts can recover the court fees paid at the time of filing the suit or appeal. The key features of the amended provision can be understood through the following interpretative components:

1. Settlement at Any Stage of Proceedings

The amended provision recognises that disputes may be resolved amicably at different stages of litigation. Accordingly, the refund of court fees is not restricted to early settlements but may also apply where parties arrive at a compromise during later stages of the proceedings. This flexibility ensures that litigants retain an incentive to settle even after substantial progress in the litigation process, thereby encouraging negotiated resolution throughout the life cycle of a case.

2. Court Intervention Not Mandatory

A crucial feature of the new provision is that settlement does not necessarily have to occur through formal court-referred ADR mechanisms. Even where parties independently negotiate and resolve their disputes without direct court intervention, they remain entitled to a full refund of the court fees. This change eliminates the earlier distinction between court-facilitated settlement and privately negotiated compromise.

3. Applicability to Both Suits and Appeals

The scope of the amended Section 16 extends beyond original civil suits to include appeals filed before appellate courts. Consequently, litigants who choose to settle disputes even after filing an appeal may also obtain a refund of the court fee paid on the memorandum of appeal. This broader applicability ensures that settlement incentives operate across multiple levels of the civil litigation hierarchy.

4. Issuance of Certificate for Refund

The procedural mechanism for obtaining the refund continues to operate through a certification process. Once the court records that the dispute has been amicably settled, it may issue a certificate authorising the litigant to recover the court fee from the appropriate revenue authority. This administrative step ensures that the refund process remains formally documented while preserving transparency in the financial recovery mechanism.

Legislative Objective and Policy Rationale

The Court Fees (Delhi Amendment) Act, 2026 reflects a conscious legislative effort to align procedural law with the broader goals of efficiency, accessibility, and settlement-oriented justice. The reform was introduced in response to long-standing concerns that the earlier refund regime created an artificial distinction between settlements achieved through court-referred ADR mechanisms and those arrived at privately between parties. Such a distinction was inconsistent with the evolving philosophy of civil justice, which increasingly prioritises consensual dispute resolution over prolonged adversarial litigation. By providing a uniform framework for refund of court fees in cases of amicable settlement, the amendment seeks to remove procedural disincentives and encourage parties to resolve disputes at the earliest possible stage.

1. Encouraging Settlement of Civil Disputes

One of the principal objectives of the amendment is to encourage litigants to settle civil disputes amicably rather than pursuing lengthy court proceedings. Civil litigation often involves significant financial and emotional costs for the parties, and the possibility of recovering the entire court fee creates a meaningful incentive to consider compromise or negotiated resolution. By eliminating the earlier restriction that limited full refund only to settlements achieved through formal ADR processes, the law now encourages parties to explore settlement through any mutually acceptable method.

The reform therefore strengthens the idea that litigation should not necessarily culminate in a full adjudicatory trial if the parties are willing to resolve their differences independently. When litigants know that they can recover the entire court fee even after filing a suit, they may be more inclined to engage in meaningful negotiations or mediation efforts. In this manner, the amendment fosters a more pragmatic and cooperative approach to civil dispute resolution.

2. Reducing Judicial Backlog

Another key policy rationale behind the amendment is the urgent need to address the growing backlog of cases in Indian courts. Civil courts in particular face a substantial number of pending cases, many of which involve disputes that could potentially be resolved through settlement rather than formal adjudication. By encouraging litigants to resolve disputes amicably, the amendment contributes to reducing the number of cases that proceed through the full trial process.

When parties settle disputes outside court proceedings or through mediation, the judiciary is relieved from conducting extensive hearings, evidence recording, and final adjudication. This not only saves judicial time but also allows courts to focus their resources on more complex matters that genuinely require adjudicatory intervention. Consequently, promoting settlement indirectly improves the efficiency and functioning of the justice delivery system.

Furthermore, the amendment reinforces the principle that procedural law should facilitate, rather than hinder, the efficient resolution of disputes. If financial disincentives discourage settlement, cases may continue unnecessarily through the judicial process. By removing such disincentives, the reform helps ensure that cases which can be resolved consensually do not occupy valuable judicial time and resources.

3. Promoting ADR Culture

The amendment also aims to strengthen the broader institutional objective of promoting a culture of alternative dispute resolution within the civil justice system. Over the past two decades, mechanisms such as mediation, conciliation, arbitration, and Lok Adalats have increasingly been recognised as effective tools for resolving disputes efficiently. The legislative reform complements these initiatives by ensuring that litigants are financially encouraged to pursue settlement rather than adversarial litigation.

Although formal ADR institutions play an important role in dispute resolution, many settlements occur informally through negotiations between parties or their legal representatives. Recognising this practical reality, the amendment places privately negotiated settlements on the same footing as settlements achieved through court-referred ADR mechanisms. By doing so, the law acknowledges that all forms of amicable resolution contribute equally to reducing litigation and improving judicial efficiency.

Thus, the legislative reform reflects a pragmatic understanding of modern dispute resolution practices. Although ADR remains central to judicial reform, many settlements occur informally through negotiation between parties or counsel. The amendment recognises these realities and places them on equal footing with formal ADR mechanisms.

Judicial Context, Jurisprudence, and Practical Implications

The legislative reform introduced through the Court Fees (Delhi Amendment) Act, 2026 must also be understood within the broader judicial and practical context that shaped its development. Prior to the amendment, the refund framework applicable in Delhi operated through a dual statutory regime under Sections 16 and 16A of the Court Fees Act, 1870 as applicable to the National Capital Territory of Delhi. While Section 16 allowed full refund of court fees when disputes were settled through court-referred alternative dispute resolution mechanisms, Section 16A permitted only 50% refund when parties privately settled disputes without formal court-referred ADR. Over time, legal practitioners and litigants increasingly questioned this distinction, arguing that both forms of settlement ultimately contributed to reducing judicial burden.

The differential framework eventually became the subject of judicial scrutiny before the Delhi High Court. A Public Interest Litigation titled Praveen Kumar Aggarwal v. Union of India & Anr.[1], challenged the constitutional validity of Section 16A as applicable to Delhi. The petitioner argued that the provision created an arbitrary and discriminatory classification between litigants who resolved disputes through court-referred ADR processes and those who settled disputes independently through negotiation or compromise. It was contended that both categories of litigants effectively contribute to the reduction of court congestion and therefore there existed no rational basis for denying full refund of court fees to parties settling disputes privately.

The proceedings highlighted the structural anomaly within the statutory framework and brought the issue into broader public and legislative attention. During the course of the litigation, the Government of NCT of Delhi indicated that the matter was under examination and that legislative reform was being considered to address the concerns raised regarding the differential refund regime. The issue ultimately contributed to the policy discussion that culminated in the enactment of the Court Fees (Delhi Amendment) Act, 2026, which removes the earlier distinction and provides for uniform refund of court fees where disputes are settled amicably, regardless of whether the settlement occurs through formal ADR or private negotiation.

The reform also reflects the broader jurisprudential approach adopted by Indian courts toward refund of court fees where judicial proceedings become unnecessary due to procedural developments or settlement. Courts have repeatedly emphasised that procedural rules should not operate in a manner that penalises litigants when disputes are resolved without requiring full adjudication. This approach reflects a larger judicial philosophy that encourages settlement and efficient dispute resolution within the civil justice system.

A notable illustration of this principle can be found in Nilesh Girkar v. Zee Entertainment Enterprises Ltd.[2], where the Delhi High Court held that court fees deposited in an appeal were refundable when the matter was remanded following the rejection of the plaint. The Court observed that where procedural developments render the original filing redundant, retaining the court fee would be inequitable. The decision reflects the principle that court fees function as a regulatory mechanism for litigation rather than as a punitive financial burden when judicial proceedings become unnecessary. The 2026 amendment effectively builds upon this jurisprudential approach by extending refund rights to all amicable settlements.

Beyond its doctrinal significance, the amendment is expected to have important practical implications for litigants and legal practitioners, particularly in shaping litigation strategy and dispute resolution behaviour. By guaranteeing the possibility of full refund of court fees upon settlement, the reform creates stronger incentives for parties to explore negotiated solutions instead of prolonged adversarial litigation. The practical consequences of the reform may be understood through the following key considerations.

Practical Implications for Litigants and Legal Practice

1. Increased Settlement Negotiations

The amendment significantly strengthens incentives for lawyers and litigants to pursue settlement negotiations at various stages of litigation. Since the entire court fee paid on the plaint or appeal may now be refunded upon settlement, parties are no longer financially disadvantaged for resolving disputes early. This development encourages advocates to actively explore negotiation, compromise, and mediation as viable strategies within civil litigation.

2. Reduction in Litigation Costs

Court fees in civil suits, particularly those involving property disputes, commercial claims, or high-value contractual litigation can be substantial. The possibility of obtaining a full refund substantially reduces the financial risk associated with initiating legal proceedings. As a result, litigants may approach dispute resolution more pragmatically, recognising that settlement will not result in a financial loss of the court fees already deposited.

3. Strengthening the Mediation Ecosystem

Delhi has progressively developed a strong court-annexed mediation infrastructure, including mediation centres attached to district courts and the Delhi High Court. The amendment complements these institutional mechanisms by removing the financial disincentive that previously existed for settlements occurring outside formal ADR processes. By ensuring equal treatment for all amicable settlements, the reform indirectly strengthens the broader mediation culture within the civil justice system.

4. Strategic Litigation Planning

Another important implication concerns litigation strategy. Litigants may now initiate suits with greater confidence that the court fees paid will not become irrecoverable if the dispute is resolved through negotiation or compromise. This allows litigation to function as a structured framework within which settlement discussions may occur, thereby enhancing procedural flexibility and promoting pragmatic dispute resolution.

Comparative Perspective and Critical Evaluation

The Court Fees (Delhi Amendment) Act, 2026 must also be viewed within the broader legislative landscape governing court fee reforms across Indian states. Under the constitutional scheme, state legislatures possess the authority to amend the Court Fees Act, 1870 within their respective territorial jurisdictions, and several states have introduced modifications aimed at encouraging settlement and reducing litigation. Over time, a number of jurisdictions have adopted provisions that permit refund of court fees when disputes are resolved through alternative dispute resolution mechanisms such as mediation, arbitration, or Lok Adalat. However, the reform introduced in Delhi represents a particularly significant development because it addresses a structural limitation that had persisted within the earlier statutory framework.

Unlike earlier provisions that created differential treatment between court-referred ADR settlements and privately negotiated compromises, the Delhi amendment establishes a uniform and settlement-friendly refund regime. The reform is notable for several reasons:

Key features distinguishing the Delhi model

1. Elimination of the ADR–Private Settlement Distinction

The amendment removes the earlier statutory distinction between disputes resolved through court-referred ADR mechanisms and those settled privately between parties. By recognising that both forms of settlement equally reduce judicial burden, the law now treats all amicable resolutions on the same footing.

2. Extension of Refund Rights to All Amicable Settlements

Under the revised framework, litigants are entitled to seek refund of court fees whenever the dispute is resolved through compromise, mediation, negotiation, or other amicable processes. This reflects a broader policy objective of encouraging settlement as a legitimate and desirable outcome within civil litigation.

3. Applicability to Both Suits and Appeals

Another significant aspect of the amendment is its applicability not only to original civil suits but also to appellate proceedings. This ensures that litigants who resolve disputes even at later stages of litigation are not financially disadvantaged for choosing settlement over continued adjudication.

Because of these features, the Delhi amendment may serve as an important legislative model for other states considering similar reforms. By aligning fiscal rules with settlement-oriented dispute resolution policies, the reform strengthens the broader institutional push toward efficient civil justice.

At the same time, the amendment raises certain practical and administrative considerations that warrant careful attention. While the reform has been widely welcomed for promoting settlement and reducing litigation costs, its long-term effectiveness will depend on the manner in which the refund mechanism is implemented in practice.

Key concerns and Practical challenges

1. Administrative Efficiency in Processing Refunds

The refund mechanism typically requires the issuance of a certificate by the court confirming settlement, followed by processing through the relevant revenue authorities. If administrative procedures remain slow or cumbersome, the intended benefits of the reform may be diluted by delays in actual disbursement.

2. Possibility of Strategic or Tactical Litigation

Some commentators have suggested that the availability of full refund could incentivise litigants to institute suits primarily as a negotiation strategy to exert pressure on opposing parties. Although such concerns may arise in theory, courts retain supervisory authority to ensure that procedural mechanisms are not misused.

3. Fiscal Impact on Government Revenue

Court fees historically constitute a minor but identifiable source of state revenue. Expanding the scope of refunds could potentially reduce this revenue stream. However, this concern is often balanced against the broader economic and institutional benefits arising from reduced litigation costs, faster dispute resolution, and decreased pressure on judicial resources.

Despite these concerns, the amendment represents a progressive and policy-oriented shift in civil procedural law. By removing financial disincentives to settlement and recognising the practical realities of dispute resolution, the reform strengthens the evolving framework that prioritises efficiency, access to justice, and consensual resolution of civil disputes within the Indian legal system.

Conclusion

The Court Fees (Delhi Amendment) Act, 2026 represents a significant development in the evolution of civil procedural law in India. By eliminating the earlier distinction between court-referred ADR settlements and privately negotiated compromises, the amendment establishes a more rational and equitable framework for refund of court fees. The reform aligns the statutory regime with the broader objectives of the civil justice system—encouraging amicable dispute resolution, reducing unnecessary litigation, and ensuring that procedural rules do not create financial disincentives for settlement.

The amendment also reflects the growing recognition within Indian jurisprudence that dispute resolution should not always culminate in full judicial adjudication. Modern civil justice policy increasingly emphasises negotiation, mediation, and compromise as efficient and pragmatic means of resolving disputes. By allowing full refund of court fees when parties settle their disputes, the law reinforces the principle that the justice system should facilitate resolution rather than prolong adversarial proceedings.

Ultimately, the Delhi reform may serve as an important legislative model for other states seeking to modernise their court fee regimes. By harmonising fiscal rules with settlement-oriented dispute resolution policies, the amendment strengthens the institutional framework for mediation and negotiated settlements. If implemented efficiently, it has the potential to contribute meaningfully to reducing judicial backlog while promoting a more cooperative and cost-effective culture of dispute resolution within the Indian legal system.

[1] W.P.(C) 10235/2022.

[2] 2025 SCC OnLine Del 9618.

What makes the incident legally and diplomatically striking is the context of the ship’s voyage. IRIS Dena had recently participated in the International Fleet Review 2026 and the multinational MILAN 2026 in Visakhapatnam, events organized by the Indian Navy to promote maritime cooperation and interoperability among dozens of countries. The Iranian vessel had docked in India and departed after the exercise concluded in late February, sailing westward through the Indian Ocean before it was attacked. The fact that the ship had recently participated in a multinational naval engagement and was designed to build trust and cooperation among navies adds an unusual diplomatic dimension to the use of lethal force against it.

From a legal perspective, the incident sits at the intersection of three fundamental branches of international law is that the law governing the use of force, the law of the sea, and the law of naval warfare. Each of these frameworks attempts to regulate how states behave in maritime environments where sovereignty, security, and commerce constantly intersect.

Under modern international law, the starting point is the prohibition on the use of force contained in Article 2(4) of the United Nations Charter. This rule prohibits states from using force against the territorial integrity or political independence of another state except in narrow circumstances. Because warships represent the sovereignty of their flag state, attacking a naval vessel in peacetime is effectively equivalent to using force against the state itself.

The legal status of warships is further reinforced by the United Nations Convention on the Law of the Sea. Under UNCLOS, warships enjoy complete sovereign immunity when navigating international waters. They are not merely vehicles; they are floating embodiments of state authority. For this reason, the interference with or destruction of a foreign warship outside an armed conflict is considered an extremely serious act under international law.

Reports indicate that IRIS Dena was transiting through waters outside Sri Lanka’s territorial sea, likely within its Exclusive Economic Zone, but still part of international waters for navigation purposes. Under the law of the sea, an EEZ grants a coastal state economic rights over resources but does not restrict the navigation rights of foreign warships. Therefore, the Iranian vessel retained full navigational freedom in those waters.

The central legal question, therefore, becomes whether the United States could justify the strike under the doctrine of self-defence. Article 51 of the UN Charter recognizes a state’s inherent right to self-defence if an armed attack occurs. However, international law requires that the use of force in self-defence satisfy two conditions: necessity and proportionality.

These requirements were famously articulated in the Caroline Affair, which established that defensive force must be necessary, immediate, and leave “no moment for deliberation.” In other words, the threat must be imminent and overwhelming. If the Iranian warship was not actively threatening American forces or preparing an attack, the legal justification for torpedoing it becomes highly questionable.

The United States has reportedly framed the strike within the context of a broader regional conflict involving Iran. If the two states were indeed engaged in an armed conflict at the time, then the legal framework shifts from the law on the use of force to the law of armed conflict at sea. Under naval warfare rules, enemy warships may be treated as legitimate military targets.

However, even within armed conflict, the targeting of vessels is not unlimited. The laws of armed conflict require distinction, proportionality, and military necessity. Destroying a warship that is clearly part of the enemy’s navy would normally satisfy the requirement of distinction. Yet controversy may still arise if the vessel was not participating in hostilities or posed no immediate operational threat.

The incident also recalls several historical precedents in which maritime attacks sparked major legal debates. One of the most famous examples is the sinking of the Argentine cruiser ARA General Belgrano during the Falklands War. The British submarine attack occurred outside a declared exclusion zone, sparking international debate about whether the target posed a real threat at the time. The episode became a classic case study in naval warfare law and the interpretation of military necessity.

Another important legal precedent is the Corfu Channel Case decided by the International Court of Justice. In that case, the Court emphasized that maritime navigation and state sovereignty must be respected even in tense geopolitical environments. While the facts were different, concerning naval mines rather than torpedo attacks, the judgment reinforced the broader principle that states must exercise restraint in maritime operations affecting other sovereign vessels.

Even more striking is the Iran Air Flight 655 incident, where a U.S. cruiser mistakenly shot down an Iranian passenger aircraft over the Persian Gulf. Although the incident occurred under very different circumstances, it demonstrated how quickly maritime military actions can escalate into serious diplomatic and legal crises.

The sinking of IRIS Dena also carries symbolic significance because submarine attacks on surface warships have become extremely rare in modern times. Indeed, analysts have noted that this was the first time an American submarine has sunk an enemy ship with a torpedo since the Second World War, and one of the few such incidents since the sinking of ARA General Belgrano in 1982. This rarity highlights how exceptional the event is in contemporary naval history.

For the international community, the broader concern is the precedent such incidents may set. If warships travelling through international sea lanes after participating in cooperative naval exercises can be targeted without warning, it could erode the fragile norms that govern maritime conduct. The oceans are among the most shared spaces on Earth. Hundreds of warships from dozens of states routinely operate in the same waters from the Indian Ocean to the Pacific, and often in close proximity.

This is precisely why exercises like MILAN exist. They are designed not merely to train navies but to build confidence-building measures that reduce the risk of misunderstandings at sea. When a vessel that recently participated in such cooperation becomes the victim of lethal force, it undermines the very spirit of those initiatives.

Ultimately, the legality of the strike will depend on facts that may not yet be publicly known. Governments possess intelligence information that may alter the legal analysis. Yet international law demands transparency and justification when force is used against another state’s military assets.

If the attack cannot be convincingly justified under the framework of self-defence or armed conflict, it risks being interpreted as a violation of the fundamental prohibition on the use of force. And if that prohibition begins to weaken, the consequences for global stability, especially in crowded maritime regions could be profound.

In the end, incidents such as the sinking of IRIS Dena remind us how delicate the legal balance governing the world’s oceans truly is. Maritime spaces are shared by many states whose naval forces routinely operate in close proximity, making clear legal norms essential for preventing escalation. International law, particularly the framework established by the United Nations Charter and the United Nations Convention on the Law of the Sea exists precisely to manage such situations by requiring justification, proportionality, and accountability whenever force is used. As more facts emerge about the incident, the episode will likely become an important case study for scholars and practitioners of international law, illustrating how the principles governing the use of force and maritime navigation continue to shape state conduct in an increasingly complex strategic environment.

India’s Long Battle with Regulation and the Politics Behind It, NITI Aayog’s call for ending licences and permits is bold but it stands on a century-long history of how the Indian state built, justified, and relied on regulatory control.

Introduction: A Radical Proposal with Deep Roots

The recent NITI Aayog proposal to scrap a large number of licences, permits, and NoCs has reopened a long-silent conversation about the nature of the Indian state itself. By questioning why permissions exist at all, not merely how they are administered, the proposal directly challenges the foundational logic on which Indian regulatory power has been built. It is rare for any government institution to argue that its own architecture of control may no longer be necessary, and this rarity is precisely what makes the document historic.

But to fully grasp its significance, one must look beyond today’s headlines. The Indian regulatory ecosystem is not just a collection of outdated rules or bureaucratic procedures. It is the product of a deep historical evolution, shaped by colonial anxieties, postcolonial planning priorities, political incentives, and a persistent belief that governance is most effective when the state grants permission rather than assumes freedom. The NITI Aayog’s call for reform enters this long and layered story as a dramatic intervention, not a sudden disruption.

Understanding this proposal, therefore, requires understanding the system it seeks to reform. India’s regulatory burden did not emerge overnight, nor was it created by a single ideology or administration. It is the cumulative result of a century of governance choices out of which some are born out of necessity, others out of habit, and many out of the state’s desire to maintain discretion. Seen through this wider lens, the NITI Aayog’s proposal is not merely administrative housekeeping; it is a challenge to the historical grammar of governance in India.

A Colonial Legacy of Governing Through Permission

Long before independent India crafted its own frameworks, the British colonial administration introduced the idea that economic and social life must be regulated through permissions. At its core, colonial governance was a project of surveillance and control, justified by the claim that Indians could not be trusted to act without official oversight. Pass systems, registration laws, factory regulations, restrictions on printing presses, and strict licensing for even basic trades became the architecture through which the state maintained order. These were not benign administrative tools but moreover they were mechanisms designed to manage subjects, not empower citizens.

The logic behind these controls was simple that the colonial state equated governance with authority, and authority with the ability to authorise. Moves, gatherings, publications, and commercial activities were viewed as potential threats unless sanctioned. This created a bureaucratic culture in which officials acted not merely as administrators but as gatekeepers of economic and social activity. What began as a set of policies gradually matured into a mindset, a belief that regulation was essential for rule, and rule essential for stability.

Even after Independence, this colonial framework proved too deeply embedded to be dismantled quickly. Administrative structures were retained, and the assumption that the state must approve, regulate, or inspect remained largely unquestioned. New India sought development and equity, but it often did so using mechanisms inherited from a very different political order. Thus, colonial controls were not discarded; they were repurposed.

“Regulation became the language through which the colonial state exercised power and the independent state inherited the language along with the power.”

In many ways, the Licence Raj of later decades was not an invention but an evolution: the extension of a colonial habit into a postcolonial nation trying to build itself with tools designed for control rather than liberation.

A New Republic, Old Instruments

When India became a republic in 1950, its leadership inherited not only a vast bureaucracy but also a governing philosophy shaped by colonial suspicion. The new political class sought to transform an impoverished, unequal society into a modern nation-state, yet the tools they reached for were strikingly familia i.e. permissions, licences, departmental controls, and state monopolies. What changed were the ends, not the administrative instincts.

Jawaharlal Nehru’s embrace of democratic socialism accelerated this reliance on state-led planning. The commanding heights of the economy where steel, railways, coal, power were placed under government ownership. On the other hand, centralised planning through the Planning Commission became the backbone of economic strategy. Investments, capacity creation, and even private sector decisions were monitored through an expanding web of clearances. The political aspiration was emancipatory, but the administrative method remained paternalistic.

This continuity became even more pronounced under Indira Gandhi. The 1969 bank nationalization was moreover intended to direct credit toward agriculture, the poor, and small industries and this strengthened the state’s interventionist posture. Industries requiring licences grew, discretionary power concentrated further, and citizens increasingly interacted with the state through applications, inspections, and approvals. This very nationalisation symbolised a promise of equity, but it also cemented dependence on bureaucratic gatekeepers.

“Independent India recast its aspirations, yet it continued to operate through administrative habits that were unmistakably colonial in origin.”

The promise of social justice was pursued through mechanisms that treated economic activity as a privilege to be granted rather than a right to be facilitated. Instead of dismantling the colonial regulatory edifice, successive governments deepened it, often in the name of development.

By the time liberalisation arrived in 1991, the system had produced both economic stagnation and administrative fatigue. Yet even after reforms, the instinct to rely on clearances, compliance checklists, and procedural surveillance persisted. Political goals shifted across decades, but the instruments of control remained one of the most durable legacies of the postcolonial state.

When Regulation Turns into Dependence

As we discussed, no doubt regulation is essential to protect public health, safety, and the environment, and licences and standards play a critical role in ensuring that hospitals, laboratories, and industries operate responsibly. Yet over decades, India’s regulatory ecosystem has grown complex and overlapping, creating a system in which compliance itself can become a source of dependence rather than facilitation. Businesses, service providers, and citizens often find themselves navigating multiple authorities and approvals, even when the regulations themselves are necessary and justified.

The challenge is not the existence of regulations as these are essential for safety, quality, and accountability, but the way they are structured and administered. In many sectors, including healthcare and manufacturing, approvals, inspections, and reporting requirements often overlap across central, state, and local authorities. Organizations must invest significant time and effort to manage these procedures, coordinate with multiple departments, and maintain extensive documentation. While these processes are necessary, they can draw resources away from innovation, efficiency, and core operational improvements. Over time, this complex web of procedures has created a form of dependence, where success often depends as much on navigating bureaucracy as on delivering quality services or products. The multiplicity of approvals and the associated delays can also create opportunities for corruption, as businesses may feel pressured to make informal payments or favors to expedite necessary processes.

“Even as policy goals evolved over the decades, the state’s instinct to govern through permissions and controls remained deeply embedded in its institutional DNA”.

NITI Aayog’s recent regulatory-reset proposals address this reality by recommending simplification, rationalisation, and risk-based supervision. The report identifies over 200 product-related Quality Control Orders for review and suggests replacing overlapping licences and inspections with self-certification and third-party verification for low-risk activities. The aim is not to remove necessary safeguards, but to reduce administrative burden and enable enterprises to operate efficiently while maintaining compliance, safety, and accountability

Reform Without Reinvention: The Post-1991 Puzzle

Even after the economic liberalisation of 1991, multiple licences, permits, and inspections remained in sectors critical to public safety, the environment, and local governance. For instance, industrial units often require prior Environmental Clearance (EC) from the central government, alongside state-level Consents to Establish (CTE) and Consents to Operate (CTO) under the Air and Water Acts. Hazardous-waste management, biomedical waste disposal, and fire safety frequently require additional approvals from separate authorities, creating overlapping obligations. While these regulations are necessary to protect health, safety, and the environment, the fragmentation across central, state, and municipal authorities often produces procedural complexity, duplication, and delays like even after EC is granted, projects can face significant delays due to pending forest clearances, local municipal approvals, or state pollution board consents. A study by the Council on Energy, Environment and Water (CEEW) found that for sectors such as mining, hydropower, coal, and large infrastructure, a significant share of projects filed even a decade ago still await forest-land approval; in many cases delays exceed 940 days. Similarly, NITI Aayog has cited reports showing that environmental clearances for chemical-industry projects now take an average of 451 days which is almost twice the legally prescribed timeframe.

This created a hybrid system like on paper, enterprises could operate freely but in practice, they still faced multiple approvals, inspections, and reporting requirements across central, state, and local authorities.

“Navigating bureaucratic maze could take time, money, and managerial focus away from innovation, efficiency, or improving core services.”

The legacy of pre-1991 controls persisted. Many regulations from the planning and socialist era were not repealed and instead, they were repurposed or rebranded. Businesses operated in a dual world: competing in open markets while simultaneously negotiating a complex web of approvals and permissions. Overlapping jurisdictions and discretionary powers meant delays were frequent, and discretionary enforcement created opportunities for informal payments.

Consequently, post-1991 reforms delivered mixed results. While macroeconomic growth accelerated and some central-level licensing barriers were removed, the fundamental dependence on bureaucracy persisted. A 2025 report by TeamLease RegTech found that a typical manufacturing MSME in India still faces over 1,450 regulatory obligations annually, spanning labour laws, environmental approvals, safety norms, tax filings, and interactions with multiple inspectors. Compliance costs for such firms are estimated at ₹13–17 lakh per year, resources that could otherwise be invested in innovation or operational improvement. As a result, firms often succeed as much by navigating bureaucratic procedures as by producing quality goods or services. The structural inertia of the system, with overlapping, duplicative, and time-consuming approvals, limited the full impact of liberalisation and left many of the state’s old instruments intact.

The NITI Aayog Moment: A Push to Rewire the State

The current 2025 NITI Aayog committee has proposed a bold overhaul of India’s regulatory framework, recognising that decades of procedural overlap and excessive inspections have created unnecessary friction for businesses.

“Regulations should enable growth, not be an obstacle to it”

The report notes, reflecting a shift towards trust-based, risk-sensitive governance. The committee’s recommendations aim to reduce the reliance on licences, permits, and inspections that have long defined the “inspector-raj,” while retaining safeguards for public safety, health, environment, and strategic interests.

Key elements of the proposal include:

1. Risk-based and graded approvals: Only activities posing significant risk would require prior approvals, while low-risk operations could move to self-registration.

2. Streamlined inspections and licences: Redundant licences would be scrapped, and inspections would be risk-targeted, reducing duplication across central, state, and local authorities.

3. Digital transparency and perpetual validity: Licences could have long-term validity with compliance tracked digitally, enabling faster approvals and minimising opportunities for delays or discretionary intervention.

The initiative represents one of the most ambitious efforts since liberalisation to modernise India’s regulatory state. By prioritising trust, efficiency, and accountability, the NITI Aayog proposals aim to enable businesses to focus on innovation and growth rather than navigating procedural bottlenecks. If implemented effectively across all levels of government, this overhaul could reduce corruption-prone discretionary approvals, revive entrepreneurial energy, and align India’s regulatory system with its economic and developmental goals.

Conclusion: Ending the Cycle of Control

India stands today at a unique juncture. For the first time in decades, a central government body is not simply easing rules but questioning the purpose of rule-making itself. The NITI Aayog proposal frames regulation not as inevitability but as choice.

Yet, real change will depend on recognizing a deeper truth: India’s regulatory burden is not only an administrative problem; it is a political legacy. A culture forged by colonial control, reinforced by developmental planning, and perpetuated by discretionary governance cannot be undone by deleting checkboxes alone.

The challenge, therefore, is two-fold, i.e., to remove unnecessary rules, and to reimagine the relationship between citizens and the state.

If India succeeds, it will not merely end licences and permits but moreover it will end a historical pattern of governing through control and that is why the NITI Aayog proposal, with all its ambition and imperfections, marks a defining moment. It begins a conversation that brings India full circle: from a colonial state of permissions to the possibility of a post-permission Republic.

It is where this story began and where it must end.

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Introduction

The Supreme Court’s latest order in the T.N. Godavarman Thirumulpad litigation is not just another incremental clarification in a three-decade-long environmental case but moreover it is a decisive constitutional moment. When the Court confronted an internal government communication implying that the Central Empowered Committee (CEC) may no longer be necessary now that the National Green Tribunal is fully operational, it responded with a sharp and unambiguous message: the Union Government cannot disband, dilute, or reconfigure the CEC without the Court’s prior approval. This stance is not driven by institutional vanity but by constitutional logic. The CEC is not an executive committee; it is a Court-created, statute-anchored, fact-finding institution with a mandate that directly feeds into the Supreme Court’s environmental adjudication. For nearly thirty years, the Godavarman case has shaped India’s forest governance, and the CEC has played the role of the Court’s eyes and ears, conducting field inspections, unearthing illegal mining, verifying compliance, and offering technical clarity in an area historically marred by bureaucratic obfuscation. The introduction of a note suggesting its redundancy triggered a constitutional reflex: you cannot dismantle what the Court has constitutionally created to protect fundamental rights under Articles 32 and 21.

This judgment is also a subtle rebuke to a deeper institutional trend. Over the last decade, there has been a quiet attempt sometimes overt, sometimes disguised to recentralise environmental decision-making within the executive. Whether through expedited forest clearances, reliance on self-certification regimes, or attempts to redefine the boundaries of judicial oversight, the administrative machinery has repeatedly signalled discomfort with independent scrutiny. The Court’s order pushes back firmly. By highlighting that the CEC now enjoys a statutory foundation under Section 3 of the Environment (Protection) Act, 1986, and by directing the Ministry of Environment, Forest and Climate Change to immediately appoint a Secretary and staff, the Court has reinforced the principle that environmental accountability in India is not optional. It is constitutional infrastructure. In reaffirming the indispensability of the CEC, the Court is not clinging to an old institution but it is somewhere asserting a constitutional safeguard against executive attempts to hollow out environmental governance. In doing so, the judgment draws a red line: environmental oversight cannot be weakened merely because it is inconvenient.

Judicial Primacy and the Constitutional Roots of the CEC

The constitutional foundation of the Central Empowered Committee (CEC) lies in the Supreme Court’s long-standing assertion of supervisory jurisdiction under Articles 32 and 142, powers that allow the Court to craft remedies beyond the traditional adjudicatory framework whenever fundamental rights or constitutional duties demand structural oversight. This trajectory began with landmark cases like Bandhua Mukti Morcha v. Union of India[1], where the Court held that continuing mandamus and court-monitored institutions were not only permissible but necessary when executive inertia undermines the enforcement of rights. The same approach matured in Vineet Narain v. Union of India[2], where the Court stated unambiguously that it could create, supervise, or insulate independent mechanisms when the existing administrative machinery proved structurally incapable of discharging constitutional obligations. In this doctrinal lineage, the CEC is not a mere committee but moreover it is a constitutional instrument.

The T.N. Godavarman Thirumulpad forest litigation, running since 1995, provided the factual and jurisprudential space for the CEC’s emergence in 1997 and its formal recognition in subsequent orders such as Godavarman[3], where court directed the closure of unlicensed sawmills, veneer, and plywood industries nationwide and prohibited the opening of new ones without prior permission from the Central Empowered Committee (CEC). The Court then needed a body that could undertake independent inspections, verify compliance, and report directly to the Bench, functions that standard government departments either failed to perform or performed with clear conflicts of interest. The CEC thus became the Court’s field-level guardian of the public trust in forests and wildlife. Its reports shaped some of the Court’s most consequential ecological decisions, including directions against illegal mining, misuse of forest land, and violations of conservation norms. These interventions exemplify why the Court views the CEC as integral to environmental adjudication, not as an auxiliary body but as an extension of its constitutional duty to protect Article 21’s environmental dimension.

The present judgment’s insistence that the Union Government cannot touch the CEC without the Court’s prior approval must therefore be understood as a reaffirmation of institutional doctrine, not institutional ego. When an institution originates from the Court’s constitutional authority, particularly through continuing mandamus in a rights-centric litigation, the executive cannot unilaterally dilute it. The Supreme Court has repeatedly held that mechanisms created under Articles 32 and 142 remain under judicial control unless the Court itself modifies or dissolves them. That principle, combined with the CEC’s historical function as the Court’s “eyes and ears,” explains why the Bench reacted strongly to the suggestion that the CEC had outlived its purpose. Therefore, CEC somewhere continues to be a vital body due to the ongoing constitutional challenges and consistent failures by the executive in effectively managing environmental governance

Statutory Status Under the EPA: The CEC Is Now a Legal Institution

The MoEF&CC’s 2023 notification under Section 3 of the Environment (Protection) Act, 1986 fundamentally altered the CEC’s character. It is no longer merely a Court-appointed mechanism; it is now a statutory body with defined legal standing. Once the State transforms a Court-created mechanism into a statutory authority, the Executive loses the power to unilaterally dismantle it, particularly when it continues to function under Supreme Court supervision.

The Court relied on this statutory anchor. Indian jurisprudence has repeatedly affirmed that statutory bodies performing public functions cannot be arbitrarily weakened. In Akhil Bharatiya Upbhokta Congress v. State of Madhya Pradesh[4], the Court held that State actions affecting statutory bodies must meet strict standards of legality and fairness. Similarly, M.C. Mehta v. Union of India[5] and subsequent environmental cases consistently emphasised the strengthening not erosion of institutions that protect natural resources.

The Court’s order also addresses an immediate administrative failure: the CEC is currently functioning without a Secretary because the previous officer was repatriated in August 2025. The Court directed the MoEF&CC to immediately appoint a Secretary, ensure the post never remains vacant, and sanction staff positions within six months. These directives make clear that the judiciary is not merely protecting the CEC in principle but it is also somewhere fortifying the CEC as a functioning institution.

Why the NGT Cannot Replace the CEC

The argument that the National Green Tribunal (NGT) renders the Central Empowered Committee (CEC) redundant reflects a fundamental misunderstanding of institutional design in Indian environmental governance. The NGT, established under the National Green Tribunal Act, 2010, is an adjudicatory body tasked with resolving environmental disputes, applying statutory norms, and issuing binding directions. Its powers are appellate and judicial, not investigative. By contrast, the CEC was created and later statutorily recognised to provide independent fact-finding, compliance monitoring, and on-ground verification. These are domains where the judiciary has historically found the executive machinery either conflicted or unreliable. The Supreme Court’s jurisprudence, especially in environmental matters, has long depended on parallel monitoring mechanisms to overcome administrative opacity. Thus, the claim of functional overlap between the NGT and CEC collapses upon scrutiny; the two bodies inhabit different spaces within the environmental governance ecosystem.

The Supreme Court reinforced this distinction in Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India[6], where it held that the establishment of the NGT does not curtail the Court’s jurisdiction under Articles 32 and 136, nor does it limit judicially created mechanisms in continuing mandamus proceedings. The Court was clear that the NGT cannot displace or dilute monitoring bodies created to ensure adherence to environmental norms in specific litigations. Moreover, many of the Supreme Court’s historic interventions from stopping illegal mining to safeguarding wildlife corridors were grounded in CEC reports. These interventions demonstrate that the Court’s supervisory needs often require neutral, field-based verification rather than courtroom adjudication. The NGT, by design, cannot fulfil that role.

Functionally, the NGT relies on evidence presented before it, whereas the CEC generates evidence through independent investigation. In cases involving forest diversion, wildlife impact, or illegal extractions, the CEC’s ground reports have consistently corrected or contradicted official submissions. This fact alone explains why the Supreme Court is deeply protective of the CEC: without such independent assessments, environmental adjudication would depend entirely on government affidavits, which have historically been incomplete or inaccurate. To imagine the NGT filling this vacuum is structurally unsound; tribunals adjudicate on evidence as they do not produce it. Removing the CEC would therefore blindfold not only the Supreme Court but every institution relying on reliable environmental data.

The Court’s present judgment emphasises this logic. The Cabinet Secretariat’s suggestion that the CEC is unnecessary post-NGT was rejected in unambiguous terms. The Court recognised that the CEC performs continuous monitoring in the Godavarman litigation and related matters work that no tribunal is institutionally equipped to handle. Tribunals decide cases; they do not ensure multi-year compliance, inspect fields, or verify on-ground restoration. The Court’s refusal to allow the CEC’s dissolution is therefore not merely institutional preservation but it is also the recognition that without the CEC, the entire architecture of environmental supervision collapses into reactive adjudication with no independent investigative spine.

The Stakes: Protecting India’s Environmental Accountability Framework

The deeper significance of this judgment lies in what it safeguards that is India’s environmental accountability infrastructure. Environmental governance in India has long suffered from executive-dominated procedures where clearances are granted quickly, compliance is rarely verified independently, and violations often surface only after irreversible damage. The CEC functions as the counterweight to this structural weakness. It has repeatedly exposed illegal mining operations, improper forest diversions, and suppressed ecological assessments. Without such a body, environmental decisions would be shaped by administrative narratives rather than ecological realities. The Court’s willingness to intervene signals that institutional independence in environmental oversight cannot be sacrificed for bureaucratic convenience.

Jurisprudentially, the CEC’s functioning underpins some of the Supreme Court’s most fundamental environmental doctrines: the public trust doctrine[7], the precautionary principle[8] and sustainable development[9]. These doctrines require institutions, not merely laws, to ensure ecological protection. They presuppose a system where environmental harms are detected early, assessed independently, and monitored continuously. The CEC is one of the few bodies capable of performing this mandate. The Court’s insistence that it cannot be disbanded without judicial approval thus preserves the institutional foundation upon which these doctrines actually operate in practice.

At its core, the judgment recognises that environmental rule of law is not merely a function of adjudication but it is also functioning as institutional vigilance. In a country where executive incentives often align with rapid development rather than ecological caution, independent oversight bodies become essential guardians of intergenerational equity. Weakening the CEC would not simply alter institutional architecture; it would dismantle the factual backbone of environmental justice. By fortifying the CEC’s statutory status and operational capacity, the Court has signalled that environmental protection cannot depend on episodic judicial intervention. It must rest on stable, resilient institutions capable of resisting political pressure and bureaucratic neglect. The stakes, as the judgment makes clear, are nothing less than the integrity of India’s environmental future.

Conclusion

The Supreme Court’s latest order protecting the Central Empowered Committee is not merely a procedural clarification as discussed; it is also a constitutional statement about the structure of environmental governance in India. By insisting that the CEC cannot be altered or dissolved without judicial sanction, the Court reaffirmed that environmental oversight requires independent, credible institutions capable of resisting executive pressures. For nearly three decades, the CEC has served as the factual spine of the Court’s environmental jurisprudence, providing ground reports, compliance assessments, and technical scrutiny that the ordinary administrative apparatus has repeatedly failed to deliver. The judgment recognises that removing or weakening such an institution would not create efficiency; it would create a governance vacuum in which environmental decisions rest on incomplete information and executive discretion.

More broadly, the order reflects a principled understanding that environmental adjudication cannot function without institutional vigilance. Bodies like the CEC operationalise doctrines such as the public trust principle, precautionary principle, and sustainable development by ensuring that ecological claims are tested against on-ground reality rather than bureaucratic assertions. In drawing a constitutional red line around the CEC, the Court has preserved the infrastructure that makes environmental rights meaningful and enforceable. At a moment when environmental harm is accelerating and regulatory institutions are increasingly overstretched, the judgment affirms a simple but profound truth: environmental justice is impossible without institutions that are independent, empowered, and protected from erosion.

[1] (1984) 3 SCC 161.

[2] (1998) 1 SCC 226.

[3] (2002) 10 SCC 606.

[4] (2011) 5 SCC 29.

[5] (1987) 1 SCC 395.

[6] (2012) 8 SCC 326.

[7] M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.

[8] Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647.

[9] Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664.

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In a landmark move, the Government of India has formally announced the operationalization of all four Labour Codes that is the Code on Wages, 2019; Industrial Relations Code, 2020; Occupational Safety, Health, and Working Conditions Code (OSH Code), 2020; and the Social Security Code, 2020 with effect from 21 November 2025. This decision marks the single largest restructuring of India’s labour law framework since Independence, subsuming nearly 29 central labour laws into a streamlined and codified architecture. The Press Information Bureau’s official release frames this transition as a long-awaited reform designed to rationalise compliance, expand worker protection, and align India’s labour regime with modern economic realities.

This shift is not a cosmetic update. It changes how wages are calculated, how working hours are scheduled, how industrial disputes are resolved, who qualifies as a worker, how gig workers and platform workers are treated, how companies must handle retrenchment and closure, and how social security is extended to millions who were previously invisible within the legal system. The Codes represent a philosophical shift from fragmented, sector-specific statutes to a consolidated framework aimed at uniformity, clarity, and enforceability.

Why the Government Notified the Codes Now: The Policy Rationale

The Codes were passed by Parliament years ago, yet remained unimplemented because labour is a Concurrent List subject and required states to frame rules. With a critical mass of state rules now ready, the Centre has chosen to operationalise the Codes together to avoid a patchwork implementation.

The sudden timing from 21 November 2025 reflects three policy imperatives:

1. Economic Modernisation

India’s Pre-Code labour law framework was built for a manufacturing economy of the 1940s–70s. It could not effectively regulate today’s technology-driven, platform-mediated, and flexible work structures.
The Codes aim to create a labour ecosystem that supports ease of doing business, formalization, and investment confidence, especially for multinational companies seeking predictable labour regulation.

2. Expansion of Worker Protection

Millions of workers in the gig, platform, and informal sectors had no statutory recognition earlier. The Social Security Code is India’s first legal framework that formally acknowledges these categories and charts a roadmap for social protection through pooled funds and digital registries.

3. Elimination of Redundant Laws

Several earlier labour laws were overlapping, contradictory, and inconsistent across sectors. The Codes eliminate duplication by replacing disparate definitions and compliance standards with uniform definitions of “employee”, “employer”, “establishment”, “wages”, and “worker”.

Overview of All Four Codes

Before moving into detailed explanations in Part II, here is a comprehensive structural overview.

1. The Code on Wages, 2019

The Code on Wages, 2019 represents a fundamental restructuring of India’s wage-related legislation by consolidating four longstanding statutes, the Minimum Wages Act, the Payment of Wages Act, the Payment of Bonus Act, and the Equal Remuneration Act, into a unified, comprehensive framework. The most significant shift is the introduction of a single, uniform definition of “wages”, which will now apply across all labour laws and directly influence calculations related to Provident Fund, ESI contributions, overtime, retrenchment compensation, and gratuity. This uniformity eliminates decades of litigation caused by conflicting definitions under different statutes. Another major reform is the establishment of national floor wages, which creates a baseline below which no State may set its minimum wage, thereby protecting workers in historically under-regulated regions and sectors. The Code also tightens rules on timely wage payment, mandating that salaries must be paid within a specified period each month, most notably by the 7th of every month, a requirement that has major implications for IT/ITES companies and other sectors that relied on flexible payroll cycles. Additionally, the Code strengthens the principle of gender-equal remuneration, ensuring that women receive the same wages as men for the same or similar work while also broadening protections against discriminatory hiring practices. In essence, the Wage Code simplifies compliance, reduces loopholes, and guarantees workers predictable and legally enforceable wage rights.

2. The Industrial Relations Code, 2020

The Industrial Relations Code, 2020 reshapes the landscape of employment relations by merging three major laws that is the Industrial Disputes Act, the Trade Unions Act, and the Industrial Employment (Standing Orders) Act into a cohesive mechanism aimed at balancing industrial flexibility with worker security. One of its most consequential features is the formal recognition of Fixed Term Employment, which grants fixed-term workers the same wages, benefits, and statutory protections as permanent employees, including eligibility for gratuity (without the earlier five-year requirement). This reform gives employers hiring flexibility while preventing exploitation through precarious contracts. Another major change is the enhancement of the threshold for layoffs, retrenchment, and closure requiring prior government approval from 100 workers to 300 workers, a shift expected to attract investment while remaining controversial among trade unions. The Code also introduces the Reskilling Fund, which mandates a payment of 15 days’ wages to workers retrenched from industrial establishments, signaling an effort to support workers during transitions. Additionally, it strengthens mechanisms for dispute resolution by formalising negotiation unions, improving grievance redressal systems, and streamlining conciliation processes. Overall, the IR Code seeks to reduce industrial friction, modernise labour practices, and create a more stable environment for both employers and employees, though concerns remain about the balance between flexibility and worker rights.

3. The Occupational Safety, Health and Working Conditions (OSH) Code, 2020

The OSH Code, 2020 consolidates thirteen major laws, including the Factories Act, Mines Act, Inter-State Migrant Workers Act, and Contract Labour Act into an integrated statute that expands and modernizes India’s framework for workplace safety, health standards, and working conditions. The Code’s most transformative reform is the creation of a single licensing, registration, and inspection system, eliminating the cumbersome requirement for multiple sector-specific permits and allowing establishments to deal with one unified compliance mechanism. It standardises working hours, laying down a clear matrix for daily and weekly limits, overtime calculation, and mandatory rest intervals. Notably, it allows women to work in all establishments and during night shifts, provided adequate safety measures are in place, marking a significant step towards gender inclusivity in the workforce. The Code strengthens occupational safety norms across sectors like factories, construction, mining, ports, transport, and more, while expanding protections to workers who previously fell outside formal coverage, including inter-state migrant labour. By mandating common health registers, digital record-keeping, better accommodation standards for migrant workers, and a uniform inspection scheme, the OSH Code aims to reduce accidents, ensure accountability, and embed a culture of safe and humane working conditions across India’s diverse industrial landscape.

4. The Social Security Code, 2020

The Social Security Code, 2020 brings together nine key laws covering EPF, ESI, maternity benefits, gratuity, and more into a single statute with the ambitious objective of universalizing social security coverage in India. Its most historic reform is the formal legal recognition of gig workers and platform workers, categories entirely absent from earlier labour laws despite their massive presence in the modern economy. Delivery partners, ride-hailing drivers, freelancers, app-based service providers, and other digitally mediated workers will now be eligible for social security benefits through dedicated welfare funds financed by contributions from both the government and aggregators such as Zomato, Swiggy, Uber, Ola, Urban Company, and others. The Code also introduces universal digital registration, requiring all workers even informal, self-employed, and unorganised workers to be registered on an Aadhaar-linked national platform that will serve as a gateway for welfare schemes. For traditional salaried employees, the Code rationalises EPF and ESI provisions, harmonises contribution requirements with the new definition of wages, and expands maternity, disability, and gratuity protections. By merging fragmented laws into one coherent system, the Social Security Code attempts to bridge India’s long-standing divide between formal and informal labour, creating a framework where social protection is tied to the worker rather than the workplace, and therefore portable across jobs, platforms, and sectors.

Overview of All Four Codes

India’s four Labour Codes represent the most extensive consolidation of labour laws since Independence, replacing 29 fragmented Central laws with a unified and modern regulatory framework. Their purpose is twofold: first, to standardize definitions, compliance procedures, and rights across industries that previously operated under overlapping and inconsistent statutes; and second, to create a simpler and more predictable labour environment that supports formalization, industrial growth, and worker welfare. Together, the Codes seek to harmonise wage structures, strengthen dispute-resolution mechanisms, modernise safety and workplace standards, and extend social protection to new-age workforce categories such as gig and platform workers. By unifying compliance through single registrations, digitised processes, uniform definitions, and national floor standards, the Codes aim to replace the earlier maze of labour regulations with a system that is coherent, technology-friendly, and aligned with shifting labour-market realities. This structural transformation marks a deliberate move from a rigid, inspector-centric regime to a compliance-light, accountability-focused, and future-ready labour law architecture, setting the stage for the detailed analysis in the sections that follow.

Implementation Challenges and the Road Ahead

The promise of simplification means nothing unless the underlying machinery is capable of running it, and right now India’s labour ecosystem is nowhere close to being uniformly prepared. The biggest bottleneck is state-level rule harmonization, means the Codes may be central laws, but their enforcement depends entirely on state rules, many of which are still in draft form or internally inconsistent. Without aligned thresholds, definitions, and procedural requirements, the so-called “single framework” becomes fragmented again, recreating the exact compliance inconsistency the Codes tried to eliminate.

On top of that, digital readiness of establishments is uneven. Large manufacturing and IT firms have the infrastructure to adapt quickly, but MSMEs, which form the bulk of India’s employment might struggle with basic digital compliance, payroll restructuring, and maintaining real-time records required under the new regime.

The transition also somewhere forces HR, payroll, and legal departments to rewire their internal systems. The new wage definition changes PF, ESI, gratuity, and leave encashment calculations, meaning organisations must rebuild salary structures, renegotiate CTC frameworks, and anticipate the financial burden of higher social security payouts. Many companies are pretending this adjustment will magically “settle down,” but the reality is they will face budget pressure, disputes over take-home salary reductions, and compliance audits that can immediately expose misclassification or creative structuring.

Another weak link is worker awareness. The Codes rely heavily on employees understanding their rights, grievance channels, and entitlements yet most informal, contract, and gig workers have no access to legal literacy. Without awareness, “protection” is merely theoretical. Meanwhile, the enforcement capacity of labour departments remains overstretched, and unless inspectors receive proper training on the new regulatory logic, the risk is clear: old-school enforcement methods applied to new-school laws will produce confusion, contradictory orders, and inconsistent practice across states.

Finally, the new wage definition is a legal minefield. Its 50% rule for allowances, valuation of benefits, exclusions, and impact on CTC structuring will generate heavy litigation. Companies will test loopholes, and employees will challenge reductions in net take-home pay. Courts will have to clarify several grey areas like PF applicability on variable components, flexible benefits, reimbursements, gig worker contributions, and aggregator liability.

In short, the Codes mark a major compliance transition, but the road ahead is not smooth. Expect the next two years to be dominated by disputes, clarifications, amendments, and judicial interpretation before the ecosystem reaches any form of stability. The Codes are ambitious, but implementation will decide whether they become a genuine reform or just another layer of legal complexity dressed up as simplification.

Conclusion

The operationalization of the Four Labour Codes from 21 November 2025 is not merely a procedural shift rather it is a structural redesign of India’s labour philosophy. For decades, labour law reform was considered politically untouchable, but the new Codes unify, simplify, and modernize a 70-year-old system built for an industrial economy that no longer exists. These reforms bring India closer to global labour standards by extending protection to gig workers, rationalizing wage laws, modernizing industrial relations, and embedding safety in the workplace.

Whether these Codes strike the perfect balance between worker protection and economic flexibility will depend entirely on implementation. But one thing is clear  that India is moving from a compliance-heavy, inspector-driven system to a digital, transparent, and worker-inclusive framework. The coming years will determine whether this ambitious shift succeeds in creating a fairer, more productive, and more inclusive labour market.

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A practical, 3,000‑word field guide for Legal Wires readers

TL;DR

LITT is a legal‑domain AI assistant designed for research, drafting, and compliance. It offers multilingual interactions, secure storage, and workflow tools that help professionals (and the public) move from a question to a usable legal document—faster and with clear citations. If you’re a Legal Wires reader looking for a modern way to search the law, draft motions or agreements, and stay on top of India’s ever‑changing compliance rules, LITT is built for you. You can create an account and try it from the homepage (“Get Started Free”). (LITT)

Why this matters to Legal Wires readers

Legal Wires is dedicated to public education and critical legal analysis—meeting readers where law intersects with daily life. That means: explain the law clearly, show sources, and empower people to act confidently. An AI legal assistant that can search, draft, and reason with citations aligns with that mission—especially for Indian workflows where multilingual interactions and regulatory complexity are the norm. (Legal Wires)

India’s compliance environment alone shows why tools like LITT are timely. Recent analyses of the regulatory landscape report 1,536 Acts, 69,233 compliances, and 6,618 filings governing businesses—numbers that update frequently. For small manufacturers, a single unit may face 1,450 compliance obligations a year, 59 categories of inspectors, 48 registers, and ~486 imprisonment clauses, often for procedural lapses. These volumes create real risk and cost (₹13–17 lakh/year, according to recent coverage), and they cry out for searchable, trackable, explainable automation. (TeamLease)

LITT positions itself exactly where practitioners and citizens feel this pressure: research, drafting, and compliance, with multilingual support and secure organization. (LITT)

What is LITT?

LITT describes itself as a Legal AI Assistant and AI Paralegal focused on research, drafting, and compliance, with an emphasis on multilingual capability, secure storage, and intelligent workflows. In other words, it’s a workspace—accessed through a modern dashboard—where you can ask legal questions in natural language, upload documents, and produce structured outputs (memos, pleadings, contracts, compliance checklists) with citations. (LITT)

From public materials and LITT’s product literature, four pillars are notable:

1. Search & deep research – legal search tuned for law‑first workflows, not generic web search.
2. Drafting – templates + AI for pleadings, petitions, applications, notices, and contracts.
3. e‑Sign / Contracting (often surfaced as LitSign in LITT’s materials) – accelerate contracting and get to signature.
4. Regulatory intelligence (often surfaced as LitReg) – extract obligations from Acts/Rules/notifications and track changes.

LITT’s site also emphasizes multilingual AI and secure storage—practical for Indian matters spanning English and regional languages, and for teams who need to keep drafts and exhibits organized. (LITT)

Side note on modules: LITT’s public materials and collateral mention products such as Search, deepResearch, Sign, and Regulatory intelligence. The LitReg subdomain explicitly frames a “Regulatory Intelligence Platform” that “extracts insights from legal and regulatory documents.” The strategy is simple: centralize the work lawyers already do (searching, drafting, tracking obligations), then layer AI to shorten the path from question → source → draft → signature/compliance.

How LITT helps lawyers and advocates

1) Faster, more disciplined law search

Great legal work begins with great retrieval. Legal informatics scholars have long argued that law search precedes legal reasoning—you can’t reason correctly if you haven’t surfaced the right authorities. Benchmarking efforts like LegalBench underscore that measuring legal reasoning requires carefully designed, domain‑specific tasks; in practice, the workflows begin by finding the right materials. (arXiv)

LITT’s value here is twofold:

• Language‑level help: explain a statute, compare case lines, or summarize long PDFs in plain English (or another Indian language), then drill down into the quoted clauses.
• Citation discipline: good assistants continually point back to sources—minimizing hallucinations and keeping you “grounded” in the record.

The broader research community has shown why this matters: domain pre‑training and curated legal corpora (e.g., Pile of Law, a 256GB open legal dataset) improve retrieval and filtering strategies in legal AI, while reinforcing privacy‑aware content handling. Even if you never touch a dataset yourself, you benefit when your tools have been engineered with legal data and legal norms in mind.

2) Drafts that start at “80% done”

Drafting in LITT feels like an assistive conversation: “Draft a Section 438 CrPC anticipatory bail application based on these facts… cite the latest Supreme Court guidance on xyz… show the holdings as footnotes.” You can iterate to adjust tone and jurisdictional nuance, then export.

Historically, the idea that legal outcomes can be modeled and predicted goes back decades. Even classic work on legal prediction and legal taxonomies explored how structured representations of issues could guide analysis and drafting. Those traditions feed today’s AI‑assisted drafting—except now you see the scaffolding (citations and structured explanations) in real time.

3) Cross‑examination prep & argumentation support

Argumentation frameworks in AI (e.g., defeasible reasoning and preferences/balancing) help systems surface counter‑arguments, policy considerations, and value tradeoffs that courts often weigh implicitly. For a trial lawyer, this translates into prompts like: “List likely counter‑arguments to our Section 482 CrPC quashing petition; map each to controlling precedent,” yielding checklists for oral argument and rejoinders.

4) Contracts and transaction support

Most contract work is structured writing. With LITT‑style workflows you can: generate first drafts, compare versions, align terms across vendor MSAs, and move to signature. For in‑house teams, this keeps low‑risk deals moving without lengthy back‑and‑forth. LITT’s own materials and social posts highlight this direction—AI‑assisted, bias‑adjustable, multilingual contracting pipelines that shorten cycle time while preserving review control.

There’s also academic support for formal, machine‑checkable approaches to contracts—useful when you want to verify internal consistency or illuminate edge cases before you sign.

5) Compliance intelligence

If your clients operate in India, you know the regulatory environment is dynamic. Tools like LitReg aim to extract obligations from Acts/Rules/notifications and help you track changes in one place—so you’re not piecing together email alerts, PDFs, and spreadsheets. This becomes strategic counsel: “Here’s the obligation set relevant to your factory in State X; here are the filings and deadlines; here’s what changed last week.”

This is not “nice to have.” It’s the only tractable way to operate when there are literally tens of thousands of obligations, thousands of annual updates, and hundreds of rules carrying jail terms—even for procedural misses. (TeamLease)

6) Multilingual, team‑ready, and organized

LITT emphasizes multilingual AI and secure storage with intelligent workflows—which matters in India, where client documents, evidentiary materials, and correspondence may mix English and regional languages. An orderly dashboard that captures chats, drafts, exhibits, and collected authorities keeps matters auditable and reduces context switching. (LITT)

How LITT helps “normal people” (students, founders, consumers)

Legal Wires reaches not only practitioners but students, founders, and citizens who want to understand and solve everyday legal problems. Here’s where LITT helps:

1. Understand your situation – ask, “What does this notice mean?” or “What are my rights under [Act/Rule]?” LITT explains in natural language, then shows where the text comes from.
2. Generate a usable first draft – a complaint, representation, RTI application, legal notice, or reply—then tune it for tone and detail, and bring it to a lawyer for review.
3. Start a business more safely – use regulatory intelligence to discover registrations/filings you’ll need for your sector and state, then track obligations as they change. MSMEs especially benefit because the compliance burden is high and the penalties for small misses can be serious. (cdn-static.teamleaseregtech.com)
4. Learn by doing, with citations – whether you’re preparing for moot court or figuring out tenancy rules, LITT’s citation‑first approach encourages good habits: trace the source, read the paragraph, and confirm with a professional when stakes are high.

Important: AI output is not legal advice. Treat LITT as a powerful study and drafting tool; consult a qualified lawyer before relying on any document or analysis in real‑world proceedings. (LITT’s own policies cast it as an assistant and paralegal‑style helper for lawyers, firms, and businesses.) (LITT)

A quick tour of the LITT dashboard (what to expect)

While the specific layout may evolve, you can expect the following, based on LITT’s public materials and product modules:

• Home / Dashboard – a clean landing area summarizing your recent chats, drafts, and matters. From here, start a new research session, upload a file, or open a saved project. (LITT)
• Jurisdiction Agnostic - LITT is Jurisdiction agnostic and can be used in any country.
• Research / deepResearch – ask questions (“Summarize Section __ of the [Act],” “Compare these two cases,” “List key holdings on ___”), then get short answers with citations and links to the underlying text. Save those snippets to your matter.
• Drafts – generate pleadings (e.g., S. 482 CrPC petitions, bail applications), notices, or submissions; iterate to adjust tone and structure; export to DOCX/PDF.
• Contracts – create, compare, and redline agreements; move quickly to signature.
• Compliance – discover obligations and updates; maintain a checklist and calendar; assign owners.
• Collections / Sources – keep the authorities you rely on—sections, rules, judgments—with annotations, to reuse across matters.
• Teams & Sharing – collaborate across chambers or departments; keep client data in one organized workspace.

Tip: LITT markets itself as multilingual with secure storage—use that to your advantage when your matter spans English and a regional language, or when you need to keep a neat archive for audits. (LITT)

Case studies (end‑to‑end workflows)

A. Litigation: Anticipatory bail (Section 438 CrPC)

1. Intake & facts – paste your client’s fact pattern; ask, “What are the controlling principles after [latest SC case]?”
2. Research – get a structured list of holdings and recent High Court treatments; pin the most on‑point paragraphs to your matter.
3. Draft – generate the application with grounds tailored to your facts; add exhibits; revise; export.
4. Counter‑prep – ask for likely prosecution arguments and build rejoinders with case support. This leverages argumentation styles that map neatly to legal practice (defeasible reasoning, balancing/values).

B. Corporate & transactions: Vendor MSA

1. First draft – produce a vendor MSA that fits your industry and risk profile.
2. Compare – drop in the vendor paper; generate a clause‑by‑clause variance report; propose alternate language.
3. Finalize – route for e‑signature through the contracting module. Formal methods from the research world (algebraic checks, constraint awareness) can inspire your review process here, catching inconsistencies early.

C. MSME founder: Setting up a unit

1. Discovery – ask LITT to outline registrations and filings for your state/sector; get a checklist with timelines.
2. Track – use regulatory intelligence to track obligations (and changes) so routine lapses don’t become criminal exposure. The scale of obligations in India makes manual tracking impractical; digital tools are a safeguard. (TeamLease)
3. Draft notices/replies – when an inspector issues a notice, generate a reply that cites the relevant rule and explains corrective action; get a lawyer to check before filing.

Accuracy, trust, and the state of legal AI

No responsible legal tool should be a “black box.” Three ingredients make LITT‑style assistants credible:

1. Citations by default. The fastest way to spot errors is to check the source. The legal AI community increasingly evaluates models on tasks that mirror real practice—retrieval, holdings, and statutory reasoning (see LegalBench and domain benchmarks). (arXiv)
2. Legal‑domain data and norms. Open legal corpora like Pile of Law show how to curate public legal materials and encode context‑sensitive filtering (e.g., when to redact names, how to handle “toxic” quotations). The point isn’t that any one tool uses any one dataset; it’s that the right engineering practices in legal AI prioritize domain context, provenance, and lawful data use.
3. Alignment with legal processes. Legal informatics research (e.g., Law Informs Code) argues that we can use legal processes, data, and experts to align AI with human intentions—by structuring tasks, documenting standards, and validating how models “understand” legal concepts. That perspective fits the way a disciplined assistant should behave when it drafts or searches on your behalf.

It’s also worth noting that even decades‑old modeling work found high predictive accuracy in narrow domains (e.g., zoning cases). The lesson for today isn’t to over‑promise; it’s that structured legal reasoning and disciplined data lead to consistent, verifiable outputs. AI assistants that embrace this discipline—rather than “magic”—are the ones you can trust in practice.

Privacy & security

LITT publicly emphasizes secure storage and intelligent workflows, and it positions itself as a professional assistant for lawyers, firms, and businesses. That framing implies a responsibility to handle confidential material carefully, and to keep your workspace organized for audits and litigation holds. Always review a platform’s policy pages and terms when onboarding sensitive matters. (LITT)

From a community perspective, responsible legal AI also means avoiding careless ingestion of sensitive personal data and respecting licensing/copyright in training materials. Open legal datasets and domain‑specific filtering research exist precisely to address such issues.

Getting started (in 10 minutes)

1. Create your account – Go to LITT and click “Get Started Free.” (LITT)
2. Start a matter – name the topic (“Bail – State v. X,” “Vendor MSA – Supplier A,” “Factory Setup – State Y”).
3. Ask a focused question – “List the essential ingredients of ___ offense,” “Compare holdings in ___ and ___,” or “Outline state permits for ___ industry.”
4. Upload a file – a notice, an agreement draft, or a case PDF; ask LITT to summarize, extract obligations, or draft a reply.
5. Save your sources – pin key paragraphs, rules, and cases to the matter.
6. Draft and refine – generate your pleading/notice/contract; tighten with follow‑ups (tone, length, jurisdictional nuance).

Good habits: Always open the cited section or paragraph. For anything high‑stakes, run a second search formulation to confirm you haven’t missed a line of cases or a recent amendment.

FAQs for Legal Wires readers

Q1: Is LITT only for lawyers?
No. While it’s built for legal professionals, students, founders, and informed citizens can use it to read the law more easily, generate first drafts (RTI, consumer complaints, tenancy notices), and learn with citations—then take the output to a lawyer for review. (LITT)

Q2: What about Indian languages?
LITT markets multilingual AI, which helps where facts or exhibits aren’t in English and where users prefer to chat in a regional language. (LITT)

Q3: Does LITT replace my advocate?
No. Think of LITT as a super‑powered junior: great at locating materials, summarizing, and preparing drafts. Your lawyer remains accountable for strategy and filings. (LITT itself positions as an assistant/paralegal for professionals.) (LITT)

Q4: How is LITT different from a general chatbot?
It emphasizes legal workflows (search → draft → sign/comply) and citation discipline. Its product direction (LitSearch/deepResearch, LitSign, LitReg) shows a law‑first roadmap rather than a generic writing tool.

Q5: Is LITT connected to India’s compliance environment?
Yes—in the sense that its Regulatory Intelligence focus (LitReg) squarely addresses India’s complex, frequently changing obligations. This is crucial when thousands of updates hit official portals every year.

A note on LITT’s mission

On its public presence, LITT says it’s “building state‑of‑the‑art AI models for legal reasoning to make quality legal aid accessible and affordable across developing nations.” That ambition—access + quality—tracks with what Legal Wires readers expect from modern legal tech: not novelty for its own sake, but tools that make law more legible and compliance more humane. (LinkedIn)

The product literature also sketches a path toward what it calls “Legal Super Intelligence”—not in the science‑fiction sense but as a north star for practical systems that reason over statutes, cases, contracts, and regulatory text with increasing structure and reliability. For end‑users, that’s visible today as LitSearch / deepResearch, LitSign, and LitReg modules that convert unstructured legal text into actionable work product.

The bottom line (and how to try it)

For lawyers and advocates, LITT reduces research time, enforces citation discipline, and gets you to credible first drafts faster—while helping you prepare arguments and rejoinders systematically.

For students and citizens, it demystifies the law, letting you read and draft with references you can verify yourself—then bring to a professional.

For MSMEs and founders, it turns regulatory sprawl into trackable obligations and living checklists—an essential shift when non‑compliance is both common and costly. (cdn-static.teamleaseregtech.com)

You can create an account and explore the dashboard from LITT’s homepage (“Get Started Free”). In ten minutes you’ll know whether it can be your everyday legal copilot. (LITT)

Sources & further reading (selected)

• LITT: Website messaging (multilingual AI, secure storage, intelligent workflows; assistant/paralegal positioning; research/drafting/compliance focus). (LITT)
• Product pillars: LITT materials on LitSearch/deepResearch, LitSign, and LitReg.
• Regulatory intelligence: LitReg subdomain (“Extract insights from legal and regulatory documents”).
• Compliance complexity in India: TeamLease RegTech report(s) and coverage (Acts/compliances/filings; MSME burden; update volumes and imprisonment clauses). (TeamLease)
• Legal‑domain data and alignment: Pile of Law (dataset and responsible filtering logic) and Law Informs Code (legal processes can align AI).
• Argumentation and balancing: Automating Defeasible Reasoning in Law; Encoding Legal Balancing.
• Foundations of modeling/prediction in law: Mathematical Models for Legal Prediction (context for structured, explainable approaches).

Ready to try?

Head to LITT and click Get Started Free to explore the dashboard. Start with a single matter—upload a document, ask a focused question, generate a draft, and check the citations. You’ll know quickly whether the workflow fits the way you practice, study, or run your business. (LITT)

“Judicial Officers Eligible for Direct Recruitment as District Judges” 

Citation: Civil Appeal No. 3947 of 2020 (2025 INSC 1208)

Date of Judgment: 12th August, 2025

Court: Supreme Court of India (Constitution Bench)

Bench: B.R. Gavai (C.J.I.), M.M. Sundresh (J), Aravind Kumar (J), Satish Chandra Sharma (J), K. Vinod Chandran (J).

Facts

• A writ petition was originally filed challenging the interpretation of Article 233(2) of the Constitution concerning eligibility for direct recruitment to the post of District Judge.
• Earlier, in Dheeraj Mor v. High Court of Delhi[1], a three-judge Bench of the Supreme Court had held that only a person practising as an advocate on the date of application and appointment, and not already in judicial service, was eligible to be considered under Article 233(2).
• Following that ruling, several judicial officers who had previously practised as advocates for more than seven years before entering service were declared ineligible for direct recruitment as District Judges. They filed multiple writ petitions before different High Courts and the Supreme Court, including Rejanish K.V. v. K. Deepa & Ors.[2], and connected matters.
• On 12th August 2025, a three-Judge Bench referred the controversy to a Constitution Bench to settle the questions of law regarding eligibility. The Bench formulated, among others, the following issues:

1. Whether a judicial officer who had completed seven years’ practice before joining service could be eligible under Article 233(2);
2. Whether eligibility should be seen at the time of application or appointment; and
3. Whether Article 233(2) bars persons already in service.

• The Constitution Bench thereafter heard extensive arguments from senior counsel representing both judicial officers (petitioners) and members of the Bar (respondents). The petitioners contended that Dheeraj Mor misread Article 233(2) by excluding judicial officers with prior advocacy experience, while the respondents argued that the constitutional intent was to keep service and Bar as distinct streams of recruitment.

Decision of Lower Court / Earlier View

Earlier, the three-Judge Bench in Dheeraj Mor v. High Court of Delhi[3] had held that a person must be a practising advocate on both the date of application and appointment and must not be in judicial service. That view effectively excluded judicial officers with prior advocacy experience from the direct recruitment process.

The Constitution Bench, while acknowledging that Dheeraj Mor had followed long-standing precedent, found that such interpretation rendered the words “has been” and “not already in service” redundant, and failed to recognize the constitutional balance between merit, equality, and experience. The Court thus restored a broader and more purposive interpretation of Article 233(2).

Decision of the Supreme Court

The Supreme Court delivered its judgment on 12th August 2025 and partly overruled Dheeraj Mor v. High Court of Delhi. The Court held that judicial officers who had completed seven years as advocates before joining judicial service are eligible for direct recruitment as District Judges under Article 233(2) of the Constitution. It clarified that the phrase “has been an advocate for not less than seven years” is in the present perfect tense and therefore includes those who have been advocates in the past.

The Court observed that Article 233(1) provides for appointment of persons to be District Judges in consultation with the High Court, while Article 233(2) prescribes eligibility for candidates not already in service. However, the phrase “a person not already in the service of the Union or of the State” was interpreted not as a bar but as a description of a second source of recruitment, namely, from the Bar. Thus, a judicial officer possessing the requisite advocacy experience before entering service cannot be excluded merely because he or she is presently in service.

In overruling the restrictive interpretation of Dheeraj Mor, the Bench emphasized that excluding judicial officers with prior advocacy experience would violate Articles 14 and 16 of the Constitution by denying them equality of opportunity and merit-based competition. The Court further held that eligibility must be determined as on the last date of application, not at the date of appointment.

Key Legal Issues Discussed

1. Whether a judicial officer who has completed seven years of practice before joining service is eligible for direct recruitment as District Judge under Article 233(2) of the Constitution?

Yes

The Constitution Bench answered in the affirmative, holding that a judicial officer who has been an advocate for at least seven years before joining judicial service is eligible for direct recruitment as a District Judge under Article 233(2). The Court observed (para 68) that the expression “…..has been an advocate or pleader for not less than seven years” uses the present perfect tense, signifying that the candidate must have been an advocate for a continuous period of seven years at any point before the date of application. It does not require the person to be in active practice at the time of application or appointment.

In reaching this conclusion, the Court clarified that Dheeraj Mor v. High Court of Delhi had taken an overly restrictive view by holding that only a person practicing as an advocate on the date of application was eligible. The Bench found such interpretation inconsistent with the constitutional text and history. Referring to Chandra Mohan v. State of U. P[4], the Court reiterated that Article 233 contemplates two distinct sources for appointment, judicial service and the Bar and that neither category should be read in a manner that defeats the other.

The Court emphasized (para 72) that the purpose of Article 233 is to ensure that both experienced judicial officers and members of the Bar can contribute to the higher judiciary. Therefore, a judicial officer’s earlier advocacy experience cannot be treated as extinguished upon entering service.[5] The Bench concluded that denying such eligibility would subvert the constitutional design of inclusivity and experience envisioned for the District Judiciary.

2. Whether Article 233(2) excludes persons already in judicial service from applying for direct recruitment as District Judges?

No

The Bench held No, Article 233(2) does not exclude judicial officers from applying under the Bar quota if they fulfill the advocacy requirement. The Court explained (para 88) that the phrase “…a person not already in the service of the Union or of the State” cannot be interpreted as a prohibition. Rather, it defines the source of recruitment i.e., candidates drawn from outside the existing service structure.

In support, the Court relied on Rameshwar Dayal v. State of Punjab[6], and Satya Narain Singh v. High Court of Judicature at Allahabad[7], both of which recognized that judicial service and Bar recruitment are complementary, not mutually exclusive, streams. The Constitution Bench observed (para 88) that Article 233(1) governs appointments from within the service, while Article 233(2) governs those from the Bar; but neither provision expressly bars a person from being considered under the other if they satisfy the constitutional condition.

Furthermore, the Court stated (para 124) that interpreting Article 233(2) as an exclusionary clause would amount to adding words that the Constitution itself does not contain. The intention of the framers was to broaden, not narrow, the pool of eligible candidates for District Judgeship. Judicial officers, having previously practiced as advocates, remain constitutionally competent to apply under the Bar quota.

3. Whether eligibility under Article 233(2) should be determined at the time of application or at the time of appointment?

No

The Court clarified (para 172(ii)) that eligibility is to be determined as on the last date of submission of the application, not at the date of appointment. This principle, drawn from administrative certainty and fairness, ensures that all candidates are assessed by uniform standards at the same procedural stage. Once a candidate meets the eligibility requirement at the time of applying, later developments such as joining service do not invalidate their candidacy.

The Court observed (para 83) that to require a candidate to maintain the status of “advocate” until appointment would lead to absurdity and unequal treatment, as the selection process may extend for months or years. Referring to Deepak Aggarwal v. Keshav Kaushik[8], the Bench reaffirmed that eligibility criteria are always pegged to the stage of application unless the recruitment rules expressly provide otherwise.

Conclusion

The Supreme Court held that judicial officers having seven years’ prior practice as advocates are eligible for direct recruitment to the post of District Judge under Article 233(2). The decision harmonizes the constitutional scheme with the principles of equality and meritocracy, ensuring that experience and competence not current designation determine eligibility.

[1] (2020) 7 SCC 401

[2] W.P. (C) No. 759 of 2017

[3] (2020) 7 SCC 401

[4] AIR 1966 SC 1987

[5] (1985) 1 SCC 225

[6] AIR 1961 SC 816

[7] (1985) 1 SCC 225

[8] (2013) 5 SCC 277

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“Guest Faculty is not a Workman under Industrial Dispute Act”

Citation: WPA 10043 of 2025

Date of Judgment: 24^th June, 2025

Court: Calcutta High Court

Bench: Shampa Dutt Paul (J)

Facts

• Sri Hansraj Koley was engaged by UCO, RSETI, Hooghly for the training of rural unemployed youth in self-employment skills sponsored by the government.
• The employment was formalized by the letter dated 30/01/2012; the training and program duties were assigned by the letter dated 24/03/2012. He was drawing Rs 5,500/- as honorarium.
• His service was terminated verbally on 21/11/2012. A writ petition was filed (W.P. No. 31342 (W) of 2014) before Calcutta High Court which was disposed of on 04/12/2014.
• The issue was raised before the Regional Labour Commissioner (Central), Kolkata for termination of service as well as dues.
• As the conciliation failed, the matter was referred to the Central Government Industrial Tribunal cum Labour Court, Kolkata for adjudication. A settlement was arrived where UCo Bank Management agreed to pay Rs 2000/- for full and final settlement.
• Afterwards, Sri Hansraj Koley claimed for a regular job alleging wrongful termination under section 2-A(2) of the Industrial Dispute Act, 1947.

Decision of the High Court

The court dismissed the writ petition and held that he was neither a “workman”, nor received any “wages” as he was not employed with the respondent Bank/ training institute and was given honorarium for taking training sessions as a guest faculty.

Key legal issues discussed

1. Whether Guest Faculty is a “workman” under Industrial Dispute Act, 1947?

No

Court observed that under section 2(s) of the Industrial Dispute Act, workman is defined as,

““workman" means any person (including an apprentice) employed in any industry……”

So, the first condition is he has to be “employed”, which is a continuous process, having work on a regular basis and being paid for it. This was not the scenario with the petitioner as he was engaged for a “session” to take class as a “guest faculty”.

Moreover, there is a difference between wages and honorarium as “wages” is a fixed regular payment earned for work or services, paid on a daily or weekly basis.

So, petitioner being a guest faculty is not a workman under Industrial dispute act, 1947.

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Introduction

Can a machine truly “read” books the way humans do, absorbing language, learning structure, and building intelligence without crossing the lines of copyright law? And if it can, where exactly should the law draw that line? These aren’t just philosophical musings anymore they’re questions courts are now being asked to answer. In June 2025, the U.S. District Court for the Northern District of California delivered a landmark decision in a copyright infringement case involving Anthropic, the AI startup backed by Amazon.[1]

Recently on 23^rd June 2025, U.S. District Court for the Northern District of California delivered a pivotal ruling in Bartz v. Anthropic[2], a case that has already begun reshaping legal conversations around artificial intelligence and copyright. The plaintiffs’ authors Andrea Bartz, Charles Graeber, and Kirk Wallace Johnson, along with their associated corporate entities filed suit against Anthropic, the developer of the Claude language model. Their claim was that Anthropic unlawfully used their copyrighted books to train its AI, both by purchasing and digitizing physical copies, and by downloading pirated versions from shadow libraries.

What made this case legally novel was its focus on how content was acquired, not just how it was used. Was it lawful to scan and ingest purchased books into a language model? Could downloading those same books from piracy sites ever be justified if the end use was still transformative?

Judge William Alsup offered a carefully drawn distinction. He ruled that training AI models on lawfully purchased and scanned books qualified as fair use because the purpose was transformative. But the use of pirated books downloaded en masse from sites like Library Genesis and Pirate Library Mirror was not protected, and Anthropic must now face a jury trial on that issue. The judgment defines a workable line: innovation, yes but only through legal channels.

The Legal Case for Transformative Use

Judge Alsup’s analysis in Bartz v. Anthropic rested heavily on the foundational principle of transformative use, the first and most significant factor in the four-part fair use test[3]. At its core, transformative use asks whether the secondary use adds something new, with a different purpose or character, altering the original work with new expression, meaning, or message. The court concluded that Anthropic’s use of copyrighted books in training its large language model, Claude, met this standard. According to the opinion, Anthropic did not reproduce or distribute the books in any conventional sense, nor did it make them available to the public in whole or in part. Instead, the books were ingested into a training pipeline to teach the model the statistical structure and relationships of language enabling it to generate novel, unpredictable outputs not traceable to any specific book or passage. Judge Alsup compared this process to a human author who reads extensively not to plagiarize, but to learn how to write more effectively as a conceptual framing that has previously found support in fair use jurisprudence.

Importantly, the court applied all four statutory fair use factors and found that three of the four factors weighed in Anthropic’s favor. First, the purpose and character of the use was clearly transformative, as the Claude model was trained to develop general language capacity, not to replicate or redistribute the plaintiffs’ books. Second, although the nature of the copyrighted works with creative fiction and nonfiction typically favors the copyright holder, this factor was outweighed by the transformative purpose of the use. The third factor, the amount and substantiality of the portion used, was not strictly quantified, but the court accepted that large-scale ingestion of full works was necessary to achieve the transformative result. And finally, the effect on the potential market for the original works was found to be minimal or nonexistent. Claude does not provide access to the books themselves, nor does it function as a substitute product in any conceivable market.

The court also placed significant weight on the manner in which Anthropic had acquired and handled the texts. The company had lawfully purchased physical copies of the books, scanned them internally for training purposes, and destroyed the originals after digitization. This process, in Judge Alsup’s view, demonstrated a conscious attempt to avoid competition with the original works or the book market more broadly. He noted that the texts were never distributed, shared, or retained in any user-facing product. Instead, their value lay in helping the model develop a generalized understanding of syntax, semantics, and narrative structure as an application fundamentally different from conventional reading or copying.

In drawing these conclusions, Judge Alsup invoked the precedent set in Authors Guild v. Google[4], where the Second Circuit upheld the legality of scanning entire books to build a searchable database. In that case, the court reasoned that Google’s Book Search project served a non-expressive, information-retrieval function that added new utility to the original works without displacing them in the market. Similarly, in Bartz, the Claude model was not designed to express the books’ messages but to abstract their linguistic patterns into a computational framework. The court viewed this as a form of machine learning that, while data-dependent, did not usurp the expressive or economic core of the plaintiffs’ works. Thus, the use was not only transformative but it was, in the court’s words, “exceedingly transformative,” warranting protection under the fair use doctrine.

Where the Law Draws the Line: Pirated Books and Liability

In this case, the court made clear that the boundary between innovation and infringement is not erased by transformative intent. While training AI models on lawfully acquired texts was upheld as fair use, Anthropic’s use of pirated books was firmly condemned. The court found that downloading millions of unauthorized copies from pirate sites like Books3 and LibGen despite ample legal alternatives constituted outright infringement. As Judge Alsup wrote, “There is no carveout… from the Copyright Act for AI companies”. The mere fact that some pirated books were later used to train LLMs did not retroactively cleanse the initial act of acquiring them unlawfully.

The court drew a crucial distinction that training on books was one specific use, but creating and maintaining a massive “central library” of pirated works was an entirely separate and impermissible one. Anthropic’s decision to retain even unused pirated titles indefinitely, in case they might prove useful someday, revealed a purpose that mirrored traditional library functions not transformative repurposing. “Pirating copies to build a research library… was its own use — and not a transformative one,” the court stated plainly

This stance also dismantled the tech firm’s argument that transformative ends justify infringing means. The court emphasized that copyright law protects not just outputs, but how inputs are acquired. “You can’t just bless yourself by saying ‘I have a research purpose’ and… take any textbook you want,” the court noted at oral argument as a direct rebuke of the idea that downstream innovation excuses upstream theft.

By holding Anthropic liable for the pirated copies, the court affirmed a vital principle: fair use is a shield for creativity, not a license for piracy. Even in the age of AI, creators are entitled to control how their works enter digital ecosystems. The future of machine learning may be expansive, but as this judgment makes clear, it cannot be built on stolen foundations.

The Fragility of Consent and the Licensing Question

Other most emphasizing elements of the Bartz v. Anthropic ruling is its exploration of how Anthropic circumvented the traditional licensing process, not by necessity, but by design. Rather than attempt serious negotiations with rights holders, the company actively avoided the "legal/practice/business slog" of obtaining permissions. As the court noted, Anthropic initially “had many places from which it could have purchased books, but it preferred to steal them”.[5] This admission was taken from internal communications which fundamentally undercuts any argument that the company was boxed into piracy by market constraints. The issue was never accessed and it was deliberate evasion of consent.

This context shaped the court’s analysis of licensing efforts as more performative than sincere. Anthropic had hired a former head of Google Books partnerships, tasked with acquiring “all the books in the world” while still avoiding licensing complexity. While this executive sent a few exploratory emails to major publishers, the conversations were allowed to “wither,” and the company pivoted instead to bulk-buying print books and scanning them without securing digital rights. In doing so, Anthropic reduced the role of authorial consent to a procedural obstacle, something to be circumvented rather than respected. This strategic avoidance, the court implied, exposed a deeper fragility in relying on informal licensing overtures as evidence of good faith.

Judge Alsup was unambiguous in his view that consent is not optional under the Copyright Act. Even when discussing the destructively scanned books that were purchased in print, he clarified that digitizing them without a separate license was only permissible because the digital copy replaced a lawfully acquired physical one, and was neither shared nor multiplied. “There is no carveout… from the Copyright Act for AI companies,” the judge reminded, adding that merely possessing a transformative intention does not confer the right to bypass consent. He framed this principle within broader constitutional terms, citing Kirtsaeng[6] to argue that copyright exists to incentivize creation, not to maximize profit for downstream tech users.

What Bartz ultimately reveals is a deep tension at the center of copyright law in the age of artificial intelligence. Licensing regimes, though often flawed, still function as the legal and moral foundation through which authors retain control over their creative work. When companies attempt to sideline consent by invoking the pursuit of innovation, they risk dismantling that very foundation. Judge Alsup’s ruling serves as a clear reminder that in the urgency to build transformative technologies, developers must not overlook the equally vital role of permission. Although licensing may seem tedious or inconvenient, it remains the structural framework that enables fair creative exchange, and neglecting it is not only unlawful but also harmful to the integrity of the entire system.

Answering the Question: What Can a Machine Lawfully Learn?

The Bartz v. Anthropic judgment provides perhaps the clearest judicial response yet to the question animating modern copyright law that is “What can a machine lawfully learn?” and the answer, as crafted by Judge Alsup, is both nuanced and firm. A machine like a human can learn from copyrighted works so long as that learning transforms the material into something new, does not usurp the market for the original, and is not built upon illegal acquisition. The act of learning, in itself, is not infringement; the legality turns on how the source material is obtained and how it is used.

The court drew a fine but powerful distinction. Training an LLM on copyrighted books when done using lawfully obtained copies, in service of generating novel outputs, and with safeguards against verbatim reproduction is a fair use. “Like any reader aspiring to be a writer,” This is the legal core of machine learning’s legitimacy, not that machines mimic, but that they model, abstract, and generate anew.

But the judgment also laid down unmistakable limits that machines may learn but they may not steal in order to learn. Pirating books to avoid paying authors, and hoarding them in a permanent “research library” to use as needed, was declared impermissible. As the court put it sharply: “Pirating copies to build a research library… was its own use and not a transformative one”. In this, the ruling affirms a foundational truth: that lawful learning by machines must be rooted in lawful respect for the rights of those whose works they study.

In closing, Bartz doesn’t just answer the question of what a machine can lawfully learn but it reframes it. The issue is not whether machines can learn, but whether the legal system will insist they do so with integrity. Fair use opens the door to innovation; piracy slams it shut on fairness. In drawing that line, the court offers a path forward: one where machines may indeed become our most powerful readers and writers but only by reading with consent, and writing with originality.

[1] https://www.reuters.com/legal/litigation/anthropic-wins-key-ruling-ai-authors-copyright-lawsuit-2025-06-24/

[2] No. C 24-05417 WHA

[3] 17 U.S.C. § 107: Section of the US Copyright law

[4] 804 F.3d 202, 217 (2d Cir. 2015)

[5] Page 2 of judgment copy

[6] 568 U.S. 519, 552 (2013)

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Introduction

The Supreme Court’s decision in K Gopi v. The Sub‑Registrar & Others (Civil Appeal No. 3954 of 2025, decided on 7 April 2025) has quickly travelled beyond the confines of property lawyers’ WhatsApp groups into drawing‑room conversations about how safe a “registered” title really is. At first glance the judgment seems to unsettle a century‑old assumption that once a document is embossed with the Registrar’s seal the buyer may sleep soundly. Yet, as we peel back the layers, the Court’s ruling is revealed to be a study in first principles rather than a hand‑grenade thrown into the land market.

Why does this single case matter? Nearly every tract of urban land in India today is bought, sold, mortgaged, or inherited on the back of a sale deed presented to a Sub‑Registrar under the Registration Act, 1908. The Act’s architecture assumes that the registering officer is a neutral custodian of public records, not an arbiter of ownership. Tamil Nadu’s Rule 55‑A(i), however, tried to convert that clerical gatekeeper into a title examiner, an experiment whose legality has now been authoritatively vetoed by the Supreme Court.

For the ordinary home‑buyer the stakes are real. If Rule 55‑A(i) had survived judicial scrutiny, thousands of transactions could have stalled at the Registrar’s counter for want of neatly archived ancestral documents. By striking it down, the Court restored the delicate balance between administrative convenience and citizens’ access to immovable‑property markets.

Equally important is what the judgment does not do. It does not grant carte‑blanche to forgers, nor does it diminish the evidentiary weight of registration. Rather, it reminds us that land markets function best when every actor i.e. buyer, seller, banker, and bureaucrat play only the role allotted by law. The ruling, therefore, is not merely a verdict on a Tamil Nadu rule; it is a civics lesson on legislative limits, administrative restraint, and consumer vigilance.

Factual Context

The story begins in suburban Chennai, where one Jayaraman Mudaliyar contracted to sell a modest residential plot to K Gopi for ₹38 lakh. The sale deed, executed on 2 September 2022, was accompanied by the usual suite of documents: patta, tax receipts, and an encumbrance certificate (EC) that showed a clean chain of title for the preceding thirteen years.

When the parties walked into the Tambaram Sub‑Registrar’s office, they encountered an unexpected road‑block. Invoking Rule 55‑A(i) of the Tamil Nadu Registration Rules, the Sub‑Registrar demanded to see the parent deed of 1994, an instrument the vendor no longer possessed because, like many middle‑class Indians, he had lost it during a move. Without the parent deed, said the officer, registration was impermissible.

Gopi challenged this refusal in a writ petition before the Madras High Court, arguing that nothing in the Registration Act authorised the Sub‑Registrar to act as a detective of root‑title. The single judge disagreed, holding that Rule 55‑A(i) was intra vires and served the public purpose of preventing fraudulent conveyances. Undeterred, Gopi pursued a statutory appeal; this time a Division Bench sided with him, directing the officer to register the document.

Yet, when the sale deed was presented again, the Sub‑Registrar stone‑walled, citing the earlier High Court order as binding. A second writ petition met a second refusal. Litigation ping‑pong ensued until the matter reached the Supreme Court, which clubbed Gopi’s civil appeal with a batch of similar cases from Tiruchirapalli, Coimbatore, and Madurai.

The factual complexity, though tedious, is instructive. It showcases the Kafkaesque labyrinth created when statutory rules venture beyond their parent Act, forcing citizens into endless procedural loops that turn property transactions into endurance sports. By the time the appeal was heard in Delhi, the original agreement for sale had nearly lapsed, the price had appreciated 18 per cent, and both parties were on the verge of abandoning the deal.

Validity of Rule 55‑A(i): A Question of Delegated Power

The fulcrum of the litigation was simple: could a piece of delegated legislation override the Registration Act’s silence on title verification? Section 69 of the Act, the Court observed, furnishes an exhaustive catalogue of subjects on which the Inspector‑General may frame rules like safe custody of records, language of entries, territorial divisions, holiday lists, and the like. Title scrutiny is conspicuously absent from this roster.

Tamil Nadu’s Rule 55‑A(i) nevertheless mandated that, before accepting any document for registration, the presentant must produce the parent deed and an EC obtained within ten days and failing which the Registrar was obliged to refuse registration outright. This requirement, the State argued, was a reasonable prophylactic against benami transactions and land‑grabbing mafias.

In the Gopi judgment, the Supreme Court examined the constitutional and statutory validity of Rule 55‑A(i) of the Tamil Nadu Registration Rules and struck it down as ultra vires the Registration Act, 1908. The Court also held that the rule-making power under Section 69 is confined strictly to procedural matters such as the custody of books, language of documents, and administrative forms. It does not permit the State to introduce substantive requirements like proof of title before registration. Analysing the structure of Section 69 clause by clause, the Court noted that it makes no mention of empowering the Inspector-General to create conditions that touch upon ownership or legal rights in property. Therefore, Rule 55‑A(i), which effectively barred registration unless the presentant furnished prior deeds and encumbrance certificates was beyond the scope of the parent statute. The Court reaffirmed that delegated legislation must operate within the four corners of the enabling Act. Any attempt to impose new legal obligations through executive rules, where the legislature has remained silent, amounts to assuming law-making power without authority. Though the judgment does not use the phrase explicitly, the reasoning clearly condemns this as “legislating through the back door,” a violation of both statutory structure and constitutional limits on delegated power.

The Bench found additional support in Sections 22‑A and 22‑B of the Act specific provisions that allow refusal to register forged documents or attempted alienations of temple and wakf property. The legislature, in other words, knew how to spell out exceptions when it wished; its deliberate omission of “defective title” from these sections was strong evidence of contrary intent.

Consequently, Rule 55‑A(i) was declared ultra vires and struck down on the twin grounds of excessive delegation and repugnancy. In doing so, the Court signalled that state governments cannot cloak policy experiments in the garb of subordinate legislation when the statute does not provide the loom.

Section 71 and the Limits of Inquiry: A Closer Look

Although Rule 55‑A(i) tried to cast Sub‑Registrars as quasi‑adjudicators of title, the Supreme Court clarified that the Registration Act, 1908, already offers a calibrated mechanism for refusal and it sits within Section 71. A Registrar may decline registration only when a document is "unlawfully presented," executed by someone "who is a minor, idiot or lunatic," or lies outside his territorial jurisdiction. Title investigation finds no place on that short list. This textual silence was decisive: the Court refused to read into the statute an authority that Parliament pointedly withheld.

Section 71’s companion, Section 76, completes the statutory safety‑valve: any aggrieved party can demand a formal order of refusal and lodge a prompt appeal with the District Registrar. Rule 55‑A(i), by contrast, worked like an iron curtain. Its blanket demand for the parent deed left citizens without a remedy and transformed what ought to be a narrow administrative gate into a procedural dead‑end, an outcome the Bench deemed incompatible with constitutional due‑process guarantees.

The judgment further harmonises Section 71 with Section 32, which limits the Registrar’s task to verifying the executant’s identity and voluntary act. Once those checkpoints are cleared, the officer’s role ends; dragging him into ancestral‑title disputes would invite inconsistent decisions from hundreds of Sub‑Registrars and erode the predictability on which land markets depend.

Seen through the constitutional lens, the Court’s approach affirms the maxim that any curtailment of property rights must be rooted in ‘procedure established by law.’ Delegated legislation cannot enlarge substantive powers through the back‑door of rule‑making. By cabining Section 71 to its express terms, the Court fortified both legislative supremacy and citizens’ economic freedom. 

Court’s Analysis: Registration Versus Title

Having demolished the procedural edifice of Rule 55‑A(i), the Court turned to the substantive anxiety animating the litigation: does registration confer title? The judgment’s most quoted sentence supplies the answer: “Registration transfers only such right, title or interest as the executant lawfully possesses; if he has none, the deed transfers none.” In one stroke, the Bench reaffirmed the ancient common‑law maxim nemo dat quod non habet (means no one can give what he does not have.)

This principle, though intellectually familiar, is often forgotten in the Indian marketplace where a stamped document is conflated with conclusive ownership. The Court clarified that registration under Sections 17 and 49 of the Act creates a public record of the transaction and renders the document admissible in evidence, but it does not cure defects in the underlying title. Only a civil‑court decree, after examining the full chain of conveyances, can do that.

To illustrate, Justice Rao deployed a hypothetical: if a thief steals your car and executes a duly stamped and registered sale deed in favour of an innocent buyer, the buyer acquires neither good title nor the right to sue the thief’s creditors. The Registrar’s seal, in such circumstances, is but a “photograph of an illegality.”

The judgment also dismantled a subtle linguistic trap. Rule 55‑A(i) used the phrase “unless satisfied that” to describe the Registrar’s duty language that seems innocuous but, in administrative law, imports a discretionary power to decide the merits of a claim. The Court warned that nestling substantive discretion inside a procedural rule is constitutionally suspect, for it allows an executive officer to determine civil rights without the safeguards of a judicial process.

Finally, the Bench addressed the fear that scrapping Rule 55‑A(i) would unleash fraudulent deeds. Such apprehensions, it said, are better addressed through criminal prosecution under Sections 467‑471 of the IPC, digital land‑record audits, and title‑insurance schemes. Delegated legislation cannot do by stealth what Parliament has chosen not to do by statute.

E‑governance and the road ahead after Gopi

India is already shifting its land offices online through the Digital India Land Records Modernisation Programme.[1] We log in, scan our fingerprints, sign with e‑signatures, and walk out with a soft‑copy sale deed. Yet one old habit survives: a clerk still decides whether your paperwork “looks right.” The Supreme Court’s Gopi ruling says that habit must change. Computers can record what you file and only a court should rule on who really owns the land.

Nothing in the Registration Act blocks this switch. Many States have even added clauses that treat a secure digital file exactly like a paper deed.[2] After Gopi, the rules for e‑portals need one clear line: “We check that the stamp‑duty is paid and the survey number matches the map and nothing more.” The software keeps time‑stamps and map‑coordinates; judges settle ownership fights.

A few States like Telangana and Maharashtra, for example, are testing a simple idea. Every deed is shrunk to a short digital “fingerprint” (a hash) and locked into a running chain, block after block.[3] If someone later says, “This page was altered,” you can show the chain and prove it wasn’t. No more hunting for a yellowing parent deed in an old tin trunk like the chain itself is the proof.

The Court’s larger message is that technology should shine a light, not swing a gavel. Let the computers give bankers or insurers an instant “encumbrance check,” and let a State‑backed title‑guarantee fund cover buyers if the chain turns out to hide a defect. But the moment a dispute over title erupts, it belongs in a courtroom, not in the code or the registrar’s cubicle. 

The Continuing Problem: Beyond the Courtroom

If the judgment were a final chapter, property lawyers could shelve their files and move on. In truth, Gopi is only a waypoint in India’s quest for a reliable land‑titling ecosystem. The immediate fallout is procedural: Sub‑Registrars in Tamil Nadu and by extension in other states with similar rules must henceforth process deeds without demanding the pedigree papers of ancestral title. This will speed up transactions but also places the onus squarely on buyers to conduct their own due diligence.

Banks and housing‑finance companies are already recalibrating their risk frameworks. Many lenders are drafting stricter contractual indemnities and insisting on title‑insurance policies as a precondition to disbursal. The insurance industry, which has tried for a decade to push land‑title products with limited success, may finally find a market ripe for scaling.

State legislatures, on their part, must decide whether to amend the Registration Act to formally vest limited title‑verification powers in registrars. Such an amendment would require a delicate balance: too much discretion could resurrect the very abuse the Court has now quashed; too little could keep the door ajar for benami operators. A consultative approach perhaps via the ongoing initiatives of the Department of Land Resources seems imperative.

Technology could supply the much‑needed pivot. A blockchain‑based, tamper‑evident ledger of land records, integrated with automatic alerts for pending litigation and revenue arrears, would render procedural gatekeeping unnecessary. Several states are piloting such systems under the Digital India Land Records Modernization Programme (DILRMP), but nationwide rollout remains patchy.[4]

Ultimately, Gopi is a reminder that the law’s architecture works best when its beam statute, rule, and administrative practice are properly aligned. The Supreme Court has straightened one crooked joist; the task of constructing a robust house of title remains a collective enterprise.

[1] https://www.pib.gov.in/PressReleasePage.aspx?PRID=2068408

[2] https://timesofindia.indiatimes.com/city/pune/fix-existing-property-regsitration-system-before-going-fully-online-maha-stakeholders-to-centre/articleshow/121525002.cms?utm

[3] https://community.verified.realestate/article/land-tokenization-in-india-transforming-real-estate-ownership-through-blockchain/

[4] https://www.pib.gov.in/PressReleasePage.aspx?PRID=1989671

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Introduction

Today (May 20, 2025) the Supreme Court of India pronounced a landmark ruling, reinstating the requirement of a minimum of three years of legal practice as a prerequisite for appointment to entry-level judicial posts such as Civil Judge (Junior Division). The Court observed that permitting fresh law graduates to enter the judiciary without any real-world legal experience had proven to be a flawed policy, negatively impacting judicial efficiency and public trust in the justice system. This reinstatement marks a return to the earlier rule, which had been relaxed in 2002 based on recommendations by the Shetty Commission.

The significance of this ruling extends beyond recruitment logistics and it reflects the judiciary's institutional self-correction and an acknowledgment of the vital role courtroom experience plays in shaping competent judges. The decision has been widely welcomed by High Courts across India, with only a few dissenting states such as Sikkim and Chhattisgarh maintaining that such a requirement is unnecessary.

Historical Evolution of Practice Requirement in India

Before 2002, most Indian states mandated that candidates aspiring for lower judicial services should have a minimum of three years of legal practice. This requirement was rooted in the belief that judges must possess firsthand experience in court procedure, client interactions, and legal strategy before being entrusted with adjudicating matters that often pertain to life, liberty, and property. In 1993, in the original All India Judges Association case, the Supreme Court itself endorsed this perspective and directed states to amend rules to require three years of advocacy experience for judicial service aspirants[1].

However, in 2002, the Supreme Court revised its stance. Citing the recommendations of the Shetty Commission and the difficulty in attracting bright young minds to the judiciary, the Court allowed fresh law graduates to compete for judicial posts. It opined that proper training of one to two years could compensate for lack of practice, thus paving the way for direct recruitment from law schools[2]. This was intended to strengthen the judicial cadre and streamline the recruitment process, but over time, practical challenges emerged.

Empirical feedback from the High Courts suggested that fresh law graduates often lacked the confidence, maturity, and contextual understanding required for courtroom decision-making. Despite pre-service training programs, newly recruited judges frequently struggled with procedural nuances and stakeholder management. As a result, several High Courts and judicial officers began lobbying for the reinstatement of the earlier rule mandating practical experience before appointment.

The May 2025 decision thus represents not a policy reversal, but a course correction informed by nearly two decades of experience. It reinstates the importance of lived legal experience as an essential component of judicial competence and institutional integrity. Moreover, it recognizes that adjudication is not merely an intellectual exercise, but a socially embedded practice requiring interaction, observation, and empathy developed through practice.

 Global Comparative Frameworks

Judicial appointment systems vary widely across jurisdictions, reflecting each country’s historical, political, and legal traditions. In common law jurisdictions such as the United Kingdom, Australia, and the United States, a strong emphasis is placed on prior legal practice. For example, in the UK, to be appointed as a Deputy District Judge or Recorder, a candidate must have at least five to seven years of post-qualification experience as a solicitor or barrister[3]. The Judicial Appointments Commission ensures that appointees possess not just academic knowledge but demonstrable legal acumen.

Australia follows a similar pattern. Judicial appointments, particularly in superior courts, are generally made from the ranks of seasoned advocates and senior counsel with significant litigation experience. The Australian system values a candidate’s track record in advocacy, legal writing, and ethical conduct. Though there is no statutory requirement of minimum years in all cases, in practice, appointees typically have over a decade of courtroom experience.

In the United States, state-level judges are often elected or appointed, and while formal requirements vary, successful candidates typically possess many years of legal practice. Federal judges are nominated by the President and confirmed by the Senate, often after long legal or judicial careers. The U.S. model highly values experience, considering it essential to maintaining judicial independence and practical wisdom.

By contrast, civil law countries such as Germany, France, and Japan adopt an institutional training approach. In Germany, students undergo two rigorous state examinations and a two-year legal clerkship (Referendariat) before qualifying for the judiciary[4]. Judges are selected early and trained professionally. Similarly, in France, students take competitive exams to enter the École nationale de la magistrature (ENM), where they receive specialized judicial training. Japan combines bar qualification with mandatory post-bar training at the Legal Training and Research Institute. These systems reflect confidence in structured pedagogy over courtroom experience[5].

India’s reinstated rule now aligns more closely with the common law tradition, placing value on experiential learning over exclusive reliance on pre-service training. This move implicitly questions the sufficiency of classroom knowledge and recognizes that exposure to actual legal practice inculcates decision-making ability, emotional intelligence, and procedural familiarity.

Juristic Perspectives on Legal Experience and Judicial Competence

Several jurists and legal philosophers have underscored the value of experience in shaping judicial temperament and competence. Roscoe Pound argued that "judges must not only know the law, but understand the spirit in which the law operates"[6]. Such understanding is rarely acquired solely through academic learning; it evolves through observation, practice, and interaction within the legal system.

Justice V.R. Krishna Iyer, one of India’s most visionary judges, consistently advocated for socially sensitive and experience-informed judging. In his writings, he stressed that judicial decisions must be informed by the "felt necessities" of the people, which can only be perceived by those who have engaged with the legal system at the grassroots level[7]. A judge, he argued, must be more than a "syllogistic technician"; he must be a socially conscious adjudicator.

In the 2025 decision, the Supreme Court reiterated similar sentiments. The bench emphasized that fresh graduates lack the maturity and contextual understanding that comes from legal practice. Amicus Curiae Siddharth Bhatnagar pointed out the growing trend of nominal practice, where aspirants merely sign vakalatnamas for formality. The Court sought to curb this by requiring certification from a ten-year standing advocate and judicial endorsement, thereby filtering out insincere claims of practice[8].

The ruling also incorporates a degree of flexibility. Time spent working as a law clerk will now count toward the three-year practice requirement. This acknowledges the diverse ways legal experience can be acquired without diluting the core principle that adjudicatory authority must be grounded in lived legal understanding. The Court’s approach reflects a balanced recognition of both formal criteria and qualitative assessment.

Bridging the Bar–Bench Divide: Mentorship, Monitoring, and Modernization

The reinstatement of the practice requirement is not merely a procedural reform but essentially it calls for a deeper integration between the Bar and the Bench. In the current legal ecosystem, young lawyers often face a fragmented path marked by lack of direction, inadequate support systems, and minimal interaction with the judiciary. Bridging this divide requires a comprehensive strategy focused on mentorship, monitoring, and modernization.

First, a formalized mentorship framework under the Bar Council and High Courts can transform early practice into a rich training ground. Pairing junior advocates with experienced seniors can foster skills, discipline, and exposure to diverse areas of law. Such mentoring programs have found success in jurisdictions like Singapore and the UK, where structured pupilage or shadowing systems ensure hands-on legal learning[9].

Second, institutional monitoring of early legal practice is essential. Bar Councils must go beyond mere enrollment statistics and create mechanisms to track actual courtroom exposure, filings, and appearances. Regular assessments, certifications, or practice logs can ensure that legal experience is genuine and not merely nominal.

Third, modernization through digital integration and structured continuing legal education (CLE) can enhance the quality of both advocates and aspirants. Online platforms for filing, tracking case progress, and accessing legal resources can reduce friction and promote competence. CLE modules tailored for aspiring judges can bridge the knowledge-practice gap and standardize learning outcomes across regions[10].

Together, these initiatives can convert the practice requirement from a gatekeeping measure into a developmental opportunity. By supporting young advocates with clear pathways, the judiciary can enhance diversity, quality, and readiness—ensuring that future judges emerge not just qualified, but truly prepared to serve.

Policy Implications and Critique

The Supreme Court’s ruling has significant implications for judicial recruitment, legal education, and access to justice. By making prior practice mandatory, it potentially filters out candidates who lack real-world exposure. This is likely to enhance the quality of judgments, reduce procedural errors, and increase public confidence in the judiciary. However, it may also narrow the pool of candidates and delay the entry of young, talented minds into the judicial system.

One concern is that aspirants from underprivileged backgrounds, who rely on early entry into government service for financial stability, may now be disadvantaged. Legal practice, especially in initial years, is often unpaid or poorly compensated. To address this, Bar Councils and State Governments must consider providing stipends or apprenticeship schemes for junior advocates, thereby democratizing access to the Bench without compromising on quality.

The Court’s provision to count law clerkships and provisional enrollment from the first day is a welcome move in this regard. It recognizes that structured mentorship and judicial exposure, even outside conventional advocacy, contribute meaningfully to the aspirant’s development. Such inclusive provisions ensure that the practice requirement does not become a class barrier.

Additionally, this judgment may prompt reforms in legal education and bar council regulation. Law schools may enhance clinical legal education and court internship programs, while bar councils could strengthen monitoring of junior advocacy to ensure meaningful engagement. The judiciary, bar, and academia must collaborate to build a robust pipeline of future judges who are not only knowledgeable but also judicially mature.

Conclusion

The reinstatement of the minimum practice requirement represents a thoughtful recalibration of judicial recruitment in India. It is not a retreat from inclusivity but a stride toward quality, integrity, and institutional trust. Comparative models show that while civil law countries rely on rigorous judicial training, common law jurisdictions prefer judges seasoned through courtroom experience. India, given its adversarial system and diverse legal landscape, arguably needs the latter.

The judgment affirms that a judge’s role is not merely to apply law but to dispense justice in context. This cannot be accomplished through academic preparation alone. Lived experience, legal practice, and ethical engagement with the legal process are indispensable ingredients of judicial competence. As India aspires to deliver swift, efficient, and equitable justice, the decision to restore the three-year practice rule is a step in the right direction and a step grounded in experience, endorsed by precedent, and guided by wisdom.

[1] All India Judges Association v. Union of India, (1993) 4 SCC 288, at p. 314.

[2] All India Judges Association v. Union of India, (2002) 4 SCC 247.

[3] UK Judiciary, "Becoming a Judge," available at https://www.judiciary.uk/about-the-judiciary/judges-training-selection/becoming-a-judge

[4] https://service.rlp.de/en/detail?areaId=&pstId=231525137&ouId=

[5] M. Bussani and U. Mattei, The Cambridge Companion to Comparative Law (Cambridge University Press, 2012) 115.

[6] Roscoe Pound, Interpretations of Legal History (Harvard University Press, 1923) 1.

[7] V.R. Krishna Iyer, Law and the People (Delhi Law House, 1982) 64.

[8] Supreme Court of India, Judgment dated May 20, 2025 in All India Judges Association v. Union of India (unreported).

[9] Singapore Academy of Law, "Practice Training Contract Guidelines," available at https://www.sal.org.sg (last accessed May 19, 2025).

[10] American Bar Association, "CLE Requirements by State," available at https://www.americanbar.org (last accessed May 19, 2025).

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Introduction

Imagine a future where India doesn't just fly aircraft, but owns them. Not abroad, but right from its own soil. This is no longer a distant dream and it’s happening right now in Gujarat’s GIFT City. Once a nascent financial experiment, GIFT (Gujarat International Finance Tec-City) is now a rapidly emerging International Financial Services Centre (IFSC) redefining how the aviation industry operates in India. Aircraft leasing a business long dominated by foreign hubs like Ireland and Singapore has found fertile ground in India’s very own GIFT City.

The evolution of GIFT IFSC comes at a crucial time when India’s aviation sector is expanding at an unprecedented pace. With rising passenger traffic, increasing demand for new routes, and enhanced air connectivity to tier-2 and tier-3 cities, the need for flexible and sustainable aircraft procurement strategies has become paramount. GIFT City offers a globally competitive platform with comprehensive legal, regulatory, and fiscal frameworks that are enabling Indian carriers to reduce their dependence on foreign lessors and instead tap into a domestic leasing ecosystem. This not only enhances economic resilience but also supports India’s ambition of becoming a key player in the global aviation finance market.

Understanding Aircraft Leasing

Aircraft leasing is a financial arrangement where the ownership of an aircraft remains with the lessor while the airline (lessee) pays a regular rental to operate the aircraft. This leasing model circumvents the need for airlines to invest heavily in buying aircraft outright, offering a cost-effective alternative to fleet expansion.

The statutory foundation for aircraft leasing within GIFT IFSC is rooted in the International Financial Services Centres Authority Act, 2019. Under Section 3 of the IFSCA Act, the Government of India notified aircraft leasing which also includes operating leases, financial leases, and hybrid models as a "financial product." This legislative action allowed aircraft leasing entities to operate within the regulatory ambit of IFSCA. The legal framework was solidified further through the issuance of the IFSCA (Finance Company) Regulations, 2021, which detail registration, capital adequacy, prudential norms, and reporting obligations. This robust legal architecture is reinforced by exemptions under allied laws such as the Insolvency and Bankruptcy Code, 2016, for lease transactions governed by the Cape Town Convention, providing international legal certainty and protection to lessors. Such legislative clarity and foresight make GIFT City a formidable hub for global aircraft leasing operations.

Key Advantages

1. Cost Efficiency: Aircraft leasing enables airlines to significantly reduce their upfront capital expenditure. Instead of purchasing expensive aircraft, they can pay predictable lease rentals over time. This arrangement preserves cash flow and allows funds to be directed toward operational enhancements and strategic expansion. As per Section 80LA of the Income Tax Act, 1961, leasing units in GIFT IFSC are eligible for a 100% tax exemption for any 10 consecutive years within a 15-year window, further enhancing cost benefits

2. Operational Flexibility: Leasing offers the flexibility to scale fleet sizes up or down depending on seasonal demand, economic conditions, or route profitability. Airlines can easily add or return aircraft, enabling agile responses to shifting market dynamics without long-term ownership commitments. The regulatory framework under IFSCA permits both long-term financial leases and short-term operating leases, accommodating this flexibility.

3. Modern Fleet Access: Through leasing, airlines can maintain a state-of-the-art fleet with the latest aircraft models. This ensures fuel efficiency, lower maintenance costs, and compliance with the latest environmental and safety standards, enhancing both profitability and brand reputation. Notably, lessors in GIFT IFSC can also lease aviation training simulators and ground support equipment, as specified under the Framework for Aircraft Lease (2022).

4. Risk Mitigation: Leasing mitigates key risks associated with aircraft ownership such as asset depreciation, maintenance responsibilities, and market fluctuations. These risks are largely transferred to the lessor, enabling airlines to focus on core business functions like network optimization and customer service. The exemption of aircraft lease arrangements from the moratorium clause under the IBC (as per Notification CG-DL-E-04102023-249132) adds a legal safety net for lessors.

5. Global Reach: Leasing provides access to a vast international inventory of aircraft. Airlines are not limited by geographical borders in acquiring aircraft, which is particularly useful for operators in emerging markets who might face regulatory or financial constraints in purchasing aircraft outright. Thanks to the deemed "foreign jurisdiction" status of IFSC units under FEMA guidelines, Indian entities operating in GIFT City can transact freely in foreign currency and deal with international clients and financiers seamlessly.

Further there are two main types of leases dominate the aviation sector

A. Dry Lease: This is a straightforward lease of the aircraft without crew, maintenance, or insurance. The lessee assumes full responsibility for these operational aspects. Dry leases are usually long-term and suited to established airlines with robust infrastructure.

B. Wet Lease: This arrangement includes the aircraft, crew, maintenance, and insurance provided by the lessor. Wet leases are ideal for short-term capacity needs, entry into new markets, or operational challenges like aircraft downtime or seasonal surges.

A frequently used structure in aircraft leasing is the Sale and Leaseback (SLB) Model, where an airline sells an aircraft it owns to a leasing company and then leases it back. This model helps the airline unlock capital tied up in assets while continuing to use the aircraft, thereby enhancing liquidity and financial performance without compromising operational capability. SLB transactions are expressly permitted under the IFSCA Framework for Aircraft Lease, adding further legitimacy and legal clarity to this widely adopted model.

India’s Aircraft Leasing Dependency and Shift

Despite being the third-largest domestic aviation market globally, India has historically been dependent on foreign lessors for its fleet expansion. Approximately 80% of commercial aircraft operated by Indian carriers are leased from international leasing hubs such as Ireland and Singapore. This results in massive foreign exchange outflows due to lease rental and interest payments, adds compliance burdens under foreign jurisdictions, and limits strategic autonomy in crisis scenarios such as airline insolvencies.

To address this structural dependency, the Indian government introduced reforms to develop a domestic leasing ecosystem centred in GIFT IFSC. The inclusion of aircraft leasing as a "financial product" under Section 3 of the IFSCA Act, 2019, laid the legal foundation for this transformation. It was further supported by targeted provisions in the Union Budget (2021-22) and accompanying tax reforms. Section 10(4F) of the Income Tax Act, 1961, provides tax exemption on interest income earned by non-residents from aircraft leasing, if the lease is carried out through units in the IFSC. Additionally, Rule 21AK of the Income Tax Rules, 1962, outlines specific procedural requirements to avail of these exemptions.

The IFSCA (Finance Company) Regulations, 2021, govern the operational, prudential, and capital norms for lessors, allowing Indian entities to establish leasing companies or units within the IFSC. Further, Notification No. CG-DL-E-04102023-249132 exempts lease transactions governed by the Cape Town Convention from the moratorium provisions under the Insolvency and Bankruptcy Code, 2016, offering enhanced legal certainty and asset recoverability for lessors. These legal interventions collectively reposition India from a passive lessee to an emerging global leasing hub.

Aircraft Leasing in GIFT IFSC: Regulatory Framework

Aircraft leasing in GIFT IFSC operates under a robust and progressive regulatory architecture established by the International Financial Services Centres Authority (IFSCA). Recognised under Section 3(1)(e) of the International Financial Services Centres Authority Act, 2019, the leasing of aircraft, helicopters, engines, and related aviation equipment whether through operating lease, financial lease, or a hybrid of both is officially categorised as a "financial product." This classification ensures that such activities are eligible to be undertaken within the IFSC, subject to compliance with the IFSCA’s regulatory standards.

In July 2019, the Government of India launched "Project Rupee Raftaar" to develop a domestic aircraft leasing and financing ecosystem. As a result, in February 2021, the IFSCA notified the Framework for Aircraft Operating Lease, followed by the Framework for Aircraft Lease including Financial Lease in May 2022. These frameworks codified permissible activities, eligibility requirements, and operational norms for lessors. Additionally, the exemption of aircraft leasing activities governed by the Cape Town Convention from the application of the Insolvency and Bankruptcy Code, 2016, via Notification CG-DL-E-04102023-249132, provided an international legal safeguard for repossession and recovery of aircraft assets.

Registration and Entity Setup

The International Financial Services Centres Authority (IFSCA) has laid down a comprehensive and detailed regulatory regime for registration and operation of aircraft leasing entities within GIFT IFSC. The primary legal instruments governing this process are the IFSCA (Finance Company) Regulations, 2021, and the IFSCA Framework for Aircraft Lease (2022).

Entities intending to undertake aircraft leasing operations must register either as a Finance Company (FC) or a Finance Unit (FU). A Finance Company is a locally incorporated entity, while a Finance Unit is a branch or unit of a foreign financial institution approved to carry out financial activities in the IFSC. Registration is mandatory and subject to the issuance of a Certificate of Registration by the IFSCA under Regulation 6 of the Finance Company Regulations.

The eligible legal structures for setting up these entities include:

1. Company: Incorporated under the Companies Act, 2013, suitable for both financial and operating lease activities.
2. Limited Liability Partnership (LLP): Registered under the LLP Act, 2008, permissible only for operating lease activities.
3. Trusts: May be used for operating leases but not eligible for undertaking financial leasing, as per Clause 3 of the IFSCA Framework.

Minimum Capital Requirements

For entities undertaking only operating leases (classified as "permitted non-core activities"), the minimum owned fund requirement is USD 0.2 million or equivalent in a freely convertible currency. For entities engaged in financial leases (a "permitted core activity") or a hybrid of financial and operating leases, the minimum capital required is USD 3 million. This higher capital threshold ensures financial stability for entities handling complex leasing models with credit exposure.

These requirements are laid out in Clause 6 of the Finance Company Regulations, and may be supplemented by additional capital requirements at the discretion of IFSCA based on the scale and nature of business.

Permissible Activities

Entities registered under the IFSCA regime for aircraft leasing are permitted to undertake a comprehensive range of activities designed to support both core and ancillary functions of the leasing ecosystem. As per Clause 5(E) and 5(H) of the IFSCA Framework for Aircraft Lease, the following are permitted:

• Leasing of Aircraft and Helicopters: Including leasing of airframes, engines, rotables, and any part or component thereof.
• Sale and Leaseback (SLB): Entities may acquire aircraft or helicopters from Indian or foreign operators and lease the same back under contractual terms. SLBs are particularly attractive for airlines to monetize owned assets while retaining their operational utility.
• Assignment, Novation, Transfer, and Subleasing: Leases may be assigned, novated, or transferred in compliance with applicable international laws and lessor-lessee agreements. This enables flexibility in portfolio restructuring.
• Asset and Lease Management Services: Entities may manage aircraft assets for themselves or their group entities, including remarketing, maintenance scheduling, redelivery inspections, and end-of-life management.
• Leasing of Ground Support Equipment: Includes tow tractors, passenger boarding bridges, refuelling vehicles, and other airport-side equipment as recognised by aviation authorities.
• Leasing of Flight Simulation and Training Devices: Subject to prior IFSCA approval and compliance with the Civil Aviation Requirements (CAR) notified by DGCA and ICAO standards.

These wide-ranging permissions offer scope for vertically integrated leasing operations from GIFT IFSC, including technical services, maintenance coordination, and fleet lifecycle support.

Compliance Requirements

Aircraft leasing entities operating in GIFT IFSC are governed by a meticulous compliance framework, outlined under the IFSCA (Finance Company) Regulations, 2021 and the IFSCA Framework for Aircraft Lease. The goal of these norms is to ensure operational transparency, adherence to global financial standards, and smooth cross-border functioning of leasing companies.

All leasing transactions must be conducted exclusively in freely convertible foreign currencies such as USD, EUR, or GBP. However, as per IFSCA guidelines and RBI regulations, administrative expenses including salaries, office rentals, and utilities may be paid in Indian Rupees through Special Non-Resident Rupee (SNRR) accounts. This ensures currency control and international financial integrity while accommodating localized operational needs. Lessors are required to maintain books of accounts in the foreign currency used for transactions. Additionally, these books should be audited annually. Within 15 days from the finalization of audited financial statements, entities must submit the following to the IFSCA:

• Audited annual financial statements
• Confirmation of adherence to all applicable IFSCA regulations and circulars
• Proof of compliance with capital requirements
• Disclosure of any material regulatory actions involving promoters or key personnel

These requirements, laid out under Regulation 8 of the Finance Company Regulations, ensure continuous regulatory oversight.

Lessors must comply with the IFSCA (Anti-Money Laundering, Counter-Terrorist Financing and Know Your Customer) Guidelines, 2022. These are in line with the Financial Action Task Force (FATF) standards. Entities are required to conduct due diligence of their lessees and counterparties and file Suspicious Transaction Reports (STRs) as needed. Non-compliance can result in monetary penalties, revocation of registration, and other regulatory actions.

Cape Town Convention Adherence

In accordance with the Notification CG-DL-E-04102023-249132, entities must comply with the Convention on International Interests in Mobile Equipment and the Aircraft Protocol (Cape Town Convention). This offers protection to lessors by ensuring legal remedies such as repossession and deregistration rights in case of lessee default. Moreover, such transactions are exempt from the moratorium provisions under Section 14 of the Insolvency and Bankruptcy Code (IBC), 2016.

According to the IFSCA circular dated 26 February 2025, IFSC-based lessors cannot acquire aviation assets from persons resident in India if such assets are used exclusively within India, unless:

• The asset is being leased back to the seller as part of a sale and leaseback involving newly imported aircraft;
• The lessor is not a group entity of the Indian seller;
• The asset is being acquired directly from an Indian manufacturer for initial deployment outside India.

These rules are intended to preserve the offshore financial integrity of IFSC.

Tax and Legal Incentives

GIFT IFSC’s tax regime is designed to attract global lessors by offering one of the most favourable fiscal frameworks worldwide. The exemptions and deductions are backed by provisions of the Income Tax Act, 1961, as amended by successive Finance Acts, and relevant GST and Customs Notifications.

1. Direct Tax Benefits

One of the strongest advantages for lessors in GIFT IFSC is the tax holiday granted under Section 80LA of the Income Tax Act, which provides for a 100% exemption on business profits for 10 consecutive years out of a block of 15 years. This generous relief allows lessors to achieve financial viability in their early years, reduce pricing for lessees, and remain competitive with global leasing hubs like Dublin and Singapore. It also enhances internal rate of return (IRR) projections for equity investors.

In addition, the concessional MAT/AMT rate of 9% under Section 115JB(7) further reduces effective tax liabilities, compared to the standard corporate tax regime. These incentives collectively promote capital formation and reinvestment in aircraft assets and related aviation infrastructure. Furthermore, capital gains arising from the transfer of shares in an IFSC unit engaged in aircraft leasing are exempt under Section 10(4H), thus encouraging ownership restructuring and equity investments.

Interest income earned by non-resident lenders from leasing companies in IFSC is also exempt under Section 10(4F). This provision removes the tax friction typically associated with cross-border debt funding, making it attractive for international financiers to fund Indian leasing entities. Importantly, lease rentals payable to IFSC lessors are not subject to Tax Deducted at Source (TDS), thereby simplifying payment structures for airlines and ensuring full flow-through of lease rentals.

2. Indirect Tax Benefits

From an indirect tax perspective, GIFT IFSC offers significant exemptions. exempt from GST as per Notification No. 12/2017 that is Integrated Tax (Rate). This ensures that lease services, maintenance arrangements, and ancillary support functions can be billed without GST liability, improving cash flow management.

Aircraft imported into India by a scheduled airline from a lessor located in GIFT IFSC are exempt from Basic Customs Duty (BCD) under Notification No. 50/2017-Customs. This removes a major cost barrier for Indian carriers and encourages domestic lease arrangements. Additionally, Gujarat’s state-level stamp duty waiver for a 10-year period ensures that asset acquisition and documentation are substantially cheaper than in competing jurisdictions.

Companies Act Relaxations

The Ministry of Corporate Affairs (MCA) has provided targeted exemptions to IFSC-based companies from burdensome procedural and governance requirements under the Companies Act, 2013. CSR obligations under Section 135 do not apply for the first five years. Section 149(3), which mandates a resident Indian director, is also waived for the first year, facilitating ease of incorporation for foreign sponsors.

IFSC companies are not required to form Audit Committees or Nomination and Remuneration Committees under Sections 177 and 178 unless specified in their Articles of Association. Additionally, the limits on managerial remuneration under Section 197 are relaxed, allowing companies to competitively compensate senior management. Procedural requirements like holding board meetings in India or filing board resolutions with the RoC under Section 186 are also waived, enabling operational flexibility and global control.

Conclusion: Charting a New Flight Path for India

The establishment of aircraft leasing in GIFT IFSC represents a transformative leap in India's economic and aviation landscape. It reflects a strategic alignment of policy, regulation, and infrastructure to not only meet global standards but to attract international players into the Indian market. By building a domestic ecosystem for aircraft leasing, India is reducing its reliance on foreign lessors and reclaiming a critical portion of the aviation value chain. This shift will not only create employment and investment opportunities but also boost the country’s financial services sector, making it more diversified and globally competitive.

Moreover, GIFT City’s specialized legal and tax regime tailored for aircraft leasing creates a compelling value proposition. Its regulatory clarity, reduced operational costs, and ease of doing business are positioning it as a preferred destination for leasing firms, lessors, and ancillary service providers. The benefits of this model extend beyond aviation, setting a precedent for future sectoral reforms through financial innovation zones. It demonstrates how strategic policy-making and the right incentives can attract global capital and talent while fostering indigenous enterprise and skill development.

Finally it won’t be wrong if we say that in this new era, India is not just flying aircraft but it’s owning the sky.

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Introduction

In the digital age, technology has become deeply intertwined with our lives, influencing even our most intimate decisions. Take matrimonial websites, for instance, platforms that claim to foster love and compatibility, yet prominently display “caste preferences” as a filtering option. Users are encouraged, and even subtly nudged, to search for partners within their own caste group. This isn't just a feature; it’s a quiet reminder that caste, far from being a relic of the past, remains an active social force in modern India. Even in the world of tech and AI-driven matchmaking, the shadow of casteism looms large.

This reality starkly contrasts with the ideal of a casteless society envisioned by the framers of the Indian Constitution. Now, with the Indian government giving the nod to include caste as a category in the next national population census, this deeply entrenched social identity has taken center stage in policy discourse. The move could potentially reshape electoral politics, welfare distribution, and the very foundation of India’s affirmative action framework. But it also opens up a Pandora’s box of concerns that will this deepen caste-based divisions, or is it a step toward more inclusive governance?

The debate around the caste census is not new, but it has intensified in recent months. Supporters hail it as a long-overdue measure that will provide crucial data for social justice programs, while critics argue that it may lead to increased social fragmentation and political exploitation of caste identities. This renewed interest prompts us to re-examine the historical trajectory of caste enumeration in India and understand its implications through the lenses of both national experience and global parallels.

A Historical Perspective

Caste enumeration in India has a long and complex history, deeply rooted in the colonial administrative machinery of the British Empire. The British were the first to systematically collect caste data as part of their decennial census, starting from 1881. The practice peaked with the 1931 Census, which remains the last time comprehensive caste data (beyond SCs and STs) was officially published in India. For the colonial state, understanding the caste composition of Indian society was not merely academic as it was a means of control, categorization, and governance. By mapping the intricate social hierarchy, the British institutionalized caste identities, inadvertently giving them a rigidity they had not historically possessed.

After India gained independence in 1947, the political leadership took a markedly different approach. The first post-independence census in 1951 consciously chose not to collect data on caste (except for SCs and STs), a decision rooted in the Nehruvian vision of building a modern, egalitarian nation. The idea was to promote national integration by moving away from divisive social markers like caste. However, caste did not disappear from public life and it remained central to political mobilization, social welfare policies, and personal identity.

One significant exception to the post-independence silence on caste data was the Socio-Economic and Caste Census (SECC) of 2011 where raw caste data was handed over to the Ministry of Social Justice and Empowerment, which constituted an Expert Group led by Arvind Panagariya for classification but again it is unclear if the group submitted its report as no report was ever made public. This was the most extensive data collection exercise on caste since 1931. The SECC was supposed to inform welfare policy by linking caste with economic indicators such as housing, education, and employment. However, despite gathering vast amounts of information, the caste component of the SECC was never officially released. Concerns about data accuracy, inconsistencies in self-reporting, and political ramifications led to a prolonged delay and eventual shelving of the report.

Thus, India’s relationship with caste data has been ambivalent oscillating between deliberate suppression and reluctant acknowledgment. As the government now reconsiders this stance and prepares to reintroduce caste enumeration in the upcoming census, it is worth reflecting on how we got here, what lessons the past holds, and what potential consequences lie ahead.

The Current Shift

India’s cabinet has formally approved the inclusion of caste data in the next national population census, marking the first comprehensive caste enumeration since 1931. The Information Minister, Ashwini Vaishnaw, emphasized that this decision reflects a commitment to transparency and data-driven governance, underscoring its landmark nature in the context of India’s social justice framework. Historically, only Scheduled Castes and Scheduled Tribes have been counted post-independence, making this a significant policy pivot that could reshape affirmative action and resource allocation.

Proponents of the caste census argue that accurate, granular data on caste composition is indispensable for formulating targeted welfare schemes and evaluating the effectiveness of existing reservation policies. They contend that without up-to-date information, marginalized communities’ risk being underserved by social programs that rely on outdated demographic assumptions and further better implication of any government projects and yajnas are being questioned without the authentic details. Public Broadcasting Service commentary highlights that the states which conducted their own caste surveys such as Bihar and Karnataka leveraged the results to fine-tune educational and employment quotas, demonstrating the practical benefits of such data. While the Indian Constitution itself makes no explicit reference to “census” (nor does the Census Act of 1948 define the term), the decennial headcount has long been understood as a tool for gathering demographic information to guide the social and economic upliftment of the population. Under the Seventh Schedule’s Concurrent List, Entry 20 empowers both the Centre and the States to legislate on “Economic and social planning,” laying the foundation for using census data to inform development strategies. Entry 23 extends this shared power to “Social security and social insurance; employment and unemployment,” indicating that population statistics including caste breakdowns are critical for designing welfare schemes and employment policies. Meanwhile, Entry 30 covers “Vital statistics including registration of births and deaths,” underscoring the census’s role in maintaining accurate records of the populace’s fundamental life events. Collectively, these provisions reflect a purpose and potential outcome of a caste-based census: to furnish precise, actionable data that can drive equitable policy-making across economic planning, social security, and vital records management. Moreover, the judiciary has underscored the constitutional limits on caste classification as in July 2024, the Supreme Court ruled that states lack the authority to alter the list of Scheduled Castes as published under Article 341, quashing a 2015 Bihar notification that sought to reclassify the Tanti-Tantwa community as a Scheduled Caste and reaffirming that only Parliament may amend these lists under the Constitution.

Critics caution that announcing a caste census in the charged atmosphere leading up to state and national elections could further entrench identity-based politics and exacerbate societal divisions. Some analysts warn that emphasizing caste categories might undermine efforts to promote a unified national identity and could be exploited by political parties seeking narrow vote banks. Additionally, concerns have been raised about the accuracy of self-reported caste data and the potential for manipulation at the grassroots level, echoing issues that stalled the release of the 2011 Socio-Economic and Caste Census.

The timing of this policy shift is closely tied to regional political dynamics: opposition-ruled states like Bihar and Karnataka have already conducted and publicly released their caste surveys, putting pressure on the central government to act in order to preempt political narratives centered on social justice. The move also comes against the backdrop of forthcoming state elections in caste-sensitive regions, where parties on both sides view caste data as a crucial campaigning tool. By standardizing caste enumeration at the national level, the government aims to neutralize state-level disparities in data collection and forestall politicization by individual states.

Implementing a caste census on this scale presents significant logistical challenges, as the decennial exercise was originally slated for 2021 but has been delayed by the COVID-19 pandemic and technical hurdles. Enumerators will require specialized training to accurately capture and record caste information, and data processing systems must be upgraded to handle the increased complexity of caste categories. Moreover, ensuring public trust in the process will be critical; transparent methodologies and safeguards against data misuse will be essential to realize the policy’s intended benefits without inflaming social tensions

Gandhi and Ambedkar: Divergent Visions

The discourse on caste in India is incomplete without referencing Mahatma Gandhi and Dr. B.R. Ambedkar. Gandhi viewed the caste system as a social order that, while flawed, could be reformed to eliminate untouchability and promote harmony. He opposed separate electorates for Dalits, fearing it would fragment Hindu society. Ambedkar, on the other hand, saw caste as an oppressive system warranting complete annihilation. He championed separate electorates to ensure political representation for marginalized communities. While both leaders unequivocally condemned untouchability, their diagnoses of the caste problem and prescriptions for change diverged sharply, culminating in the watershed Poona Pact of 1932. This pact, brokered under the shadow of Gandhi’s fast-unto-death and Ambedkar’s insistence on separate electorates for Dalits, epitomized their contrasting approaches to political representation and social harmony. Their debate over separate electorates exposed deeper rifts: Gandhi feared that political segregation would “vivisect and disrupt” Hindu society, whereas Ambedkar viewed separate electorates as indispensable for ensuring the political voice of the oppressed.

Gandhi regarded the caste system as a flawed but improvable social order rather than an evil to be obliterated. He vigorously campaigned against untouchability, establishing the Harijan Sevak Sangh in 1932 to “cleanse the temple of the nation” by integrating Dalits into mainstream social and religious life. Nonetheless, he opposed separate electorates for the “depressed classes,” arguing that such measures would institutionalize caste divisions and undermine efforts to foster Hindu unity. Instead, Gandhi advocated for the abolition of untouchability within the varna framework, believing that transforming hearts rather than seats in legislatures, which was the path to genuine social reform. His emphasis remained on moral upliftment and nonviolent persuasion, trusting that upper-caste Hindus would embrace change once they recognized the injustice of untouchability.

In stark contrast, Ambedkar diagnosed the caste system itself as an inherently oppressive institution that could not be reformed from within. He famously declared, “I measure the progress of a community by the degree of progress which women have achieved,” extending this principle to Dalits by insisting their full political empowerment was non-negotiable. Ambedkar championed separate electorates as a constitutional safeguard, ensuring that Dalit representatives would not be mere dependents of upper-caste patrons but true advocates for their communities. His seminal work, The Annihilation of Caste, called for the complete eradication of the caste system, equating it with “social tyranny” that demanded radical dismantling rather than piecemeal reform. Disillusioned by the Poona Pact’s compromise, Ambedkar later converted to Buddhism in 1956, symbolically rejecting Hinduism’s caste rigidity and affirming his commitment to equality and rationalism.

Global Context

While India's caste system is unique in its structure and influence, other countries have grappled with similar social stratifications. In numerous African ethnic groups, rigid caste-like systems characterized by hereditary status, endogamous occupational groups, and notions of purity as early as the 9th century continue to shape social hierarchies today. These systems, found across Mali, Senegal, the Wolof, and Tuareg populations, as well as among the Ari of Ethiopia, who maintain distinct cultivator, blacksmith, and potter caste, featuring striking parallels with India’s caste order, including artisan and musician groups that occupy inherited social roles. However, unlike India, where caste enumeration has been institutionalized intermittently since colonial times, most African nations have never systematically recorded caste in their national censuses, leaving these identities under-documented at the state level. Similarly, in Japan, the burakumin outcast descendants of feudal “pollution” occupations such as executioners and tanners remain socially stigmatized despite being physically indistinguishable from other Japanese citizens, yet they are not identified in ordinary census data. The exclusion of such groups from official enumeration contrasts sharply with India’s forthcoming comprehensive caste count, highlighting the unique scale and scope of New Delhi’s initiative.

Nepal provides one of the few examples outside India where caste and ethnicity were systematically enumerated in the 2021 census, reporting 142 distinct caste/ethnic groups, a level of granularity intended to inform tailored social welfare and representation policies. Even in Nepal, however, the focus is broader, encompassing language and religion alongside caste, rather than isolating caste as a singular category for affirmative action purposes. In contrast, European countries like France and Spain historically marginalized the Cagots in the Basque region, an “untouchable” minority confined to segregated churches without ever officially recognizing them in census data, demonstrating how caste-like discrimination can persist without formal state acknowledgment. The United Kingdom has begun to address caste within discrimination law under Section 9(5) of the Equality Act 2010, yet it does not enumerate caste in its population census, preferring legal protections over direct enumeration. India’s decision to reinstate caste enumeration thus stands as a groundbreaking model, offering demographic granularity that could guide social justice initiatives in deeply stratified societies worldwide

Implications and Considerations

The reintroduction of comprehensive caste data collection in India’s upcoming census represents a pivotal shift with far-reaching consequences across policy-making, electoral politics, and societal harmony. Accurate caste statistics are poised to enhance the targeting and evaluation of welfare schemes, address long-standing gaps in affirmative action, and inform constituency delimitation for fairer representation. At the same time, political actors are likely to leverage this granular data to refine campaign strategies, deepen identity-based appeals, and potentially recalibrate reservation demands. However, heightened visibility of caste identities may also risk exacerbating social fissures, challenging efforts to foster a cohesive national identity. Balancing these opportunities and risks will require transparent methodologies, robust data safeguards, and inclusive public dialogue to ensure the census fulfills its promise of equitable development without inflaming divisions.

1. Policy Formulation:

India’s decision to collect detailed caste data after nearly a century is driven by the need for empirical evidence to refine social welfare programs and affirmative action policies. Accurate caste statistics will enable policymakers to identify underrepresented and underserved communities, ensuring that benefits such as education quotas, subsidized healthcare, and direct cash transfers reach those most in need. For instance, Poonam Muttreja of the Population Foundation of India argues that without intersectional data combining caste, region, and economic status social schemes risk being misdirected or inequitably distributed. State-level experiences underscore this potential, for instance, Karnataka’s caste survey led to recalibrated job quotas for backward classes, directly impacting recruitment patterns in public services. Moreover, updated census data will inform constituency delimitation exercises, ensuring that electoral boundaries reflect the true demographic spread and enabling fairer representation for marginalized groups. Finally, longitudinal comparison with the upcoming data will allow the government to assess the effectiveness of past interventions, guiding future allocations and program designs with greater precision

2. Political Dynamics:

Caste census data is anticipated to become a potent tool in the arsenal of political parties, shaping electoral strategies and alliance formations. Parties may analyze the distribution of various caste groups within constituencies to craft targeted manifestos, promises, and candidate selections aimed at maximizing their appeal among specific demographics. The BJP’s move to embrace the caste census, after years of skepticism, reflects strategic calculations to reclaim the OBC narrative and counter Opposition-led surveys in states like Bihar and Karnataka. However, this data can also be weaponized: opponents warn that granular caste breakdowns might entrench vote-bank politics, reinforcing identities at the expense of issue-based politics and national cohesion. As election cycles approach, there is a risk that caste figures will dominate campaign discourse, leading to promises of expanded quotas or sub-categorization that may reignite contentious debates over reservation ceilings and inter-group competition.

3. Social Cohesion:

While detailed caste enumeration promises greater equity, it carries the inherent risk of magnifying social divides. Critics argue that formal recognition of caste categories in a high-stakes political environment could legitimize caste-based mobilization, deepening perceptions of “us versus them” and potentially sparking fresh societal tensions. Historical precedents such as the unreleased 2011 SECC underscore fears that politicized use of caste data can overshadow its developmental intent, leading to public mistrust and calls for data suppression. To mitigate these concerns, experts advocate for transparent data collection processes, clear communication on the intended use of caste statistics, and robust legal safeguards against misuse. Additionally, public education campaigns emphasizing shared citizenship and collective progress could help balance identity recognition with a broader narrative of national unity, ensuring that data-driven reforms strengthen rather than fragment India’s social fabric.

Conclusion

As India undertakes the monumental task of conducting a caste census, it finds itself at a pivotal moment in its democratic journey, one that demands a careful reconciliation of historical truths with aspirations for an inclusive future. The initiative goes beyond the mechanics of data collection; it is a profound acknowledgment of the diverse and layered social realities that continue to shape the lives of millions. Recognizing and documenting these realities can pave the way for more equitable policy formulation, helping bridge long-standing gaps in representation, access, and opportunity.

However, this pursuit is not without its challenges. The potential for political polarization, social discord, or the reinforcement of caste identities must be weighed against the larger objective of justice and development. It will require a thoughtful, transparent, and inclusive approach to ensure that the data is used constructively empowering marginalized communities without deepening existing divides. Ultimately, how India chooses to interpret and act on the findings of the caste census will be a test of its democratic maturity and its resolve to build a truly egalitarian society.

Introduction

On April 25, 2025, a deadly terrorist attack (Massacre) took place in the Pahalgam region of Jammu & Kashmir, claiming the lives of 26 Indian citizens. The attack, which occurred in the midst of heightened security alerts and rising temperatures in the region, sent shockwaves across the country. As details emerged, Indian authorities linked the strike to Pakistan-based militant outfits, reigniting a fierce debate about cross-border terrorism and national security. The incident marked a critical tipping point, leading to widespread public outrage and high-level strategic reassessments by the Indian government.

In the immediate aftermath of the Pahalgam attack, India announced the suspension of the Indus Waters Treaty (IWT), a move that signaled a dramatic escalation in its response to terrorism allegedly emanating from Pakistani soil. The treaty was signed in 1960 and brokered by the World Bank, had long been lauded as a model of international water cooperation, especially given the bitter history of Indo-Pakistani relations. It survived three wars and countless military standoffs. Yet today, the very existence of this agreement stands imperiled. India’s suspension of the treaty reflects not only a policy shift but also a strategic message

The Indus Waters Treaty (IWT) of 1960 has long been celebrated as a triumph of diplomacy amid animosity. It outlined a mechanism for the fair and peaceful distribution of the waters of the Indus River system. Remarkably, the treaty endured despite the turbulent political relationship between the two nations, surviving three full-scale wars (1965, 1971, and 1999) and numerous military skirmishes. It stood as a rare pillar of stability in an otherwise conflict-ridden region.

However, recent developments have plunged the treaty into uncertainty. Following the horrific Pahalgam terrorist attack, in which several Indians lost their lives, India accused Pakistan-based terror outfits of orchestrating the incident. In response, India has now suspended its participation in the IWT, marking the most significant challenge the treaty has faced in over six decades. This move has not only heightened tensions between the two nuclear-armed neighbors but also raised complex questions about the future of transboundary water sharing in South Asia.

Origins and Structure of the Indus Waters Treaty

In the shadow of Partition in 1947, water emerged as one of the first and most urgent points of friction between India and the newly formed Pakistan. The Indus River system, which irrigated vast stretches of land in both countries, did not conform to political borders. While the rivers flowed into Pakistan, their headworks were now located in India. Tensions flared when India briefly halted water flow to Pakistan in 1948, making it clear that without a formal framework, access to water could trigger a crisis or worse, war. Recognizing the severity of the issue, the World Bank initiated a dialogue between the two nations. After nearly a decade of negotiation, the Indus Waters Treaty (IWT) was signed on September 19, 1960, by Indian Prime Minister Jawaharlal Nehru and Pakistani President Ayub Khan, with the World Bank as a guarantor.

The treaty divided the six rivers of the Indus basin into two categories. The Eastern Rivers that are Ravi, Beas, and Sutlej were allocated to India for exclusive use, while the Western Rivers that are Indus, Jhelum, and Chenab were reserved for Pakistan. However, India retained limited rights to utilize the Western rivers for non-consumptive purposes such as hydropower, irrigation (within defined limits), and navigation. These provisions were subject to strict technical guidelines and advance notice to Pakistan, ensuring that India’s usage did not disrupt the flow essential to Pakistan’s agriculture. In return, India agreed to provide financial assistance to Pakistan for the construction of canals and storage facilities to make up for the water redirected from the Eastern Rivers.

To ensure the treaty’s longevity and minimize disputes, a Permanent Indus Commission was established, comprising one commissioner from each country. The treaty includes a three-tiered dispute resolution mechanism: differences are first addressed at the commission level; if unresolved, they move to a neutral expert, and if still in contention, to a Court of Arbitration. This layered structure has allowed the treaty to withstand wars, skirmishes, and political hostilities for over six decades until the recent suspension by India in 2025, following the Pahalgam terror attack, pushed this model of cooperation to the brink. The Indus Waters Treaty is no longer just a water-sharing pact; it has become a litmus test for regional peace and the evolving dynamics of geopolitical leverage in South Asia.

Strategic Importance of the Indus River System

The Indus River system is the backbone of Pakistan’s agrarian economy, providing water for nearly 90% of the country’s food production and sustaining over 13.3 million hectares of irrigated land. It underpins roughly 25% of Pakistan’s GDP, with agriculture contributing one-quarter of economic output thanks to the basin’s expansive canal network and dependable flow regimes. Beyond Pakistan, the basin supports communities across India, Afghanistan, and China’s western provinces, highlighting its regional significance for food security and rural livelihoods. Any upstream disruptions whether from infrastructure projects or climate-induced flow variability, thus pose acute risks of food insecurity and economic instability across South Asia.

The Indus system also fuels Pakistan’s power generation through its major reservoirs: Tarbela (4,888 MW, over half of WAPDA’s hydropower capacity) and Mangla (approximately 1,070 MW), which together supply around 20% of national electricity needs. These dams serve as essential flood-control structures, mitigating the impacts of frequent inundations that have historically inflicted economic losses averaging 1% of GDP annually and catastrophic damages surpassing US $10 billion in single events. By regulating monsoonal peaks and channeling surplus flows into storage, the reservoir network reduces downstream flooding while ensuring water availability during dry seasons for irrigation and power generation. As Pakistan aims to add up to 10 GW of new hydropower capacity by 2030, the strategic utilization of Indus waters remains central to its energy diversification and climate-resilience strategies.

Control over the Indus headwaters has long served as a potent strategic lever in India–Pakistan relations, exemplified by the 1960 Indus Waters Treaty (IWT) that allocated western rivers to Pakistan and eastern to India under World Bank auspices. While the IWT’s data-sharing and dispute-resolution mechanisms have endured wars and political crises, India’s suspension of key treaty provisions in April 2025 following a terror attack in Pahalgam highlighted how hydrological governance can escalate into diplomatic confrontation. Pakistan’s recourse to arbitration under the treaty’s three-tier mechanism i.e. bilateral Commission, Neutral Expert, Court of Arbitration underscores the Indus’s role not only as a resource but as a geopolitical bargaining chip. In an era of intensifying regional rivalries, the river remains a linchpin of South Asian security architecture, where water-sharing disputes can swiftly exacerbate broader political tensions.

Climate projections signal that over 70% of the Upper Indus’s flow derives from meltwater that is 26% glacial and 44% seasonal snow, making the system acutely vulnerable to Himalayan deglaciation and shifting precipitation patterns. Accelerating glacial retreat could initially boost runoffs but ultimately threaten long-term water availability, jeopardizing agriculture, energy, and ecosystems across the basin. Recognizing these challenges, riparian nations and multilateral bodies have launched initiatives like the UNEP-backed “Living Indus” programme to restore ecosystems, enhance data-sharing, and develop joint climate-resilient management frameworks. Ultimately, the strategic importance of the Indus River system transcends national borders, demanding cooperative stewardship to secure South Asia’s food, energy, and environmental future.

The Present Crisis: Why Has India Suspended the Treaty?

​In the wake of the devastating Pahalgam terror attack on April 22, 2025, which claimed the lives of 26 civilians, India has taken the unprecedented step of suspending the Indus Waters Treaty (IWT) with Pakistan. This move marked a significant escalation in bilateral tensions. The attack, attributed to militants with alleged cross-border linkages, prompted India to reassess its diplomatic and strategic posture towards Pakistan. By suspending the IWT, India signals its intent to leverage water-sharing arrangements as a means to pressure Pakistan into ceasing support for cross-border terrorism. ​

The suspension entails halting the exchange of crucial hydrological data, including information on water flow, snowmelt, and river discharge, which Pakistan relies upon for managing its water resources. Furthermore, India is no longer constrained by the treaty's limitations on the use of waters from the western rivers i.e. Indus, Jhelum, and Chenab, potentially allowing for new storage and hydropower projects. While the immediate impact on water flow to Pakistan may be limited due to existing infrastructure constraints, the long-term implications could be profound, affecting Pakistan's agriculture and economy.

Pakistan has condemned India's suspension of the IWT, labeling it an "act of war" and warning of serious retaliatory consequences. The move has exacerbated already strained relations, leading to diplomatic expulsions, suspension of visas, and closure of airspace between the two nations. The international community has expressed concern over the potential for further escalation, urging both countries to exercise restraint and engage in dialogue to resolve their differences. ​

India's decision to suspend the IWT underscores the strategic importance of water resources in South Asia's geopolitical landscape. As climate change and population growth intensify competition over water, the management of transboundary rivers like the Indus becomes increasingly critical. The current crisis highlights the need for robust mechanisms to address water-related disputes and the importance of maintaining cooperative frameworks to ensure regional stability and sustainable development.

Consequences

This is the first such moment when India has made a bold and historic move, suspending the Indus Waters Treaty (IWT) for the first time since its inception in 1960. The treaty, a rare symbol of cooperation between India and Pakistan, had weathered two wars and numerous political upheavals. But the April 2025 attack, which claimed 26 lives in the heart of Kashmir’s tourism belt, became a flashpoint. India, citing the need to hold Pakistan accountable for harboring terror networks, announced that it would no longer be bound by the treaty’s terms. Pakistan responded sharply, warning that any move to block or alter river flows would be interpreted as an “act of war,” underlining the gravity of the situation.

As discussed earlier, despite having limited rights on the western rivers, India has historically underutilized even its 20% share due to lack of storage capacity and infrastructure. With the treaty now suspended, India could theoretically pursue new dam projects, modify existing infrastructure, or withhold crucial hydrological data without informing Pakistan. However, experts point out that physically stopping the Indus or diverting its massive flow, particularly during monsoon months, remains practically unfeasible given India’s current capabilities. Run-of-the-river hydropower projects dominate the Indian side of the basin and lack large-scale storage.

Now the question is what India can do and where Pakistan may feel the pinch and contrast is in the dry season. During these months, when river flows are naturally lower, storage capacity and flow timing become critical. Without the treaty’s transparency requirements, India could begin adjusting release schedules or flushing sediment without prior notice, potentially disrupting Pakistan’s irrigation and power generation systems. Moreover, halting data exchange, a vital aspect of flood forecasting and water management could compound vulnerabilities. Pakistani officials have already noted that India had been providing limited data even before the suspension, but the complete severance of communication introduces new uncertainty into an already tense equation.

This move by India also reignites broader regional anxieties around “water as a weapon.” While India risks flooding its own territory if it holds back too much water upstream, even temporary manipulations like sudden releases or sediment surges can cause downstream havoc. The situation also casts a shadow over India’s own concerns in the eastern Himalayan region, where China controls the Brahmaputra’s upper reaches.

In 2016, following another terror attack, Beijing blocked a tributary of the Yarlung Tsangpo, the source of the Brahmaputra in what was seen as a geopolitical signal in support of Pakistan. With water security now deeply entangled in strategic rivalry, the suspension of the IWT may mark not just a diplomatic fracture, but a turning point in how South Asian powers weaponize shared rivers in pursuit of leverage and deterrence.

Legal and Ethical Questions Around Suspension

India’s suspension of the Indus Waters Treaty enters uncharted legal territory, as the treaty lacks any explicit provision for unilateral withdrawal or termination. However, India could invoke the international legal doctrine of rebus sic stantibus, which allows a state to withdraw from a treaty if there has been a fundamental change in circumstances. India may argue that the persistence of cross-border terrorism, particularly the Pahalgam attack, constitutes such a change, one that undermines the very foundation of peaceful cooperation assumed by the treaty. Yet, this doctrine is rarely applied and generally frowned upon in international jurisprudence, especially when dealing with humanitarian or environmental agreements.

Beyond legal interpretation lies a deeper ethical debate: should essential resources like water be weaponized in geopolitical disputes? Critics warn that using water as a tool of coercion sets a dangerous precedent not only for India-Pakistan relations but for all transboundary water-sharing arrangements globally. If water is politicized in one basin, it could inspire similar tactics elsewhere, eroding the principles of cooperative river basin management. Moreover, weaponizing water could lead to unintended humanitarian consequences in Pakistan, particularly affecting civilian populations reliant on the Indus basin for drinking water, irrigation, and electricity.

India also risks undermining its broader regional diplomacy by adopting a hardline stance on water. As an upstream country not just to Pakistan, but also to China (in the Brahmaputra basin) and Nepal (in the Ganges basin), India’s credibility as a responsible stakeholder in shared water resources could be called into question. If it asserts the right to suspend a treaty unilaterally, it weakens its own position in other international negotiations. Thus, while the suspension of the IWT may seem like a strategic move in the short term, it opens a complex web of legal ambiguity and ethical dilemmas that could reverberate far beyond the subcontinent.

Historical Precedents and Lessons

In the past, despite major provocations like the 2016 Uri attack and the 2019 Pulwama bombing, India showed considerable restraint in its approach to the Indus Waters Treaty. Although these attacks sparked intense domestic calls to revisit or scrap the treaty, successive Indian governments chose to maintain the status quo. The IWT was viewed as a stabilizing force amidst frequent political and military tensions, a rare channel of dialogue between two nuclear-armed neighbors. Maintaining the treaty allowed India to project itself as a responsible global actor committed to upholding international agreements, even under severe provocation.

The suspension of the treaty in 2025, however, marks a significant departure from this tradition of cautious diplomacy. Unlike earlier episodes, the Pahalgam attack seems to have tipped the balance toward action, driven by a shift in India's internal political climate. Rising nationalist sentiment, public anger over repeated terror incidents, and a broader strategic pivot toward assertiveness in foreign policy have all contributed to this decision. The Indian government now appears more willing to leverage every possible tool including critical resources like water to pressurize adversaries and redefine the rules of engagement.

Yet, history offers a cautionary lesson. While assertiveness may satisfy immediate political demands, the long-term consequences of dismantling cooperative frameworks like the Indus Waters Treaty are unpredictable. Escalating the conflict over water could entrench hostility, provoke retaliatory measures, and reduce the already narrow space for dialogue. The IWT's durability over six decades had symbolized a measure of predictability in an otherwise volatile relationship. By moving away from this model, both nations risk entering a new and more dangerous phase of strategic competition, one where the costs may far outweigh the perceived gains.

The Way Forward: Conflict or Cooperation?

The suspension of the Indus Waters Treaty marks a profound shift in the India-Pakistan relationship, raising urgent questions about the future of water sharing in South Asia. India’s decision, once unthinkable even after major terror attacks like Uri and Pulwama signals a new era of strategic assertiveness fueled by rising nationalist sentiment and shifting foreign policy doctrines. No longer content with symbolic gestures, India has chosen to leverage one of the most critical shared resources in the region. While the immediate political calculus may favor a tougher stance, history warns that dismantling cooperative frameworks like the IWT could open the floodgates to prolonged instability, humanitarian crises, and diplomatic isolation.

The road ahead offers three broad possibilities. One, India and Pakistan could be compelled by mutual necessity or international pressure to renegotiate a new treaty that reflects changing realities such as climate change, evolving water needs, and security concerns. Two, a complete breakdown could occur, forcing both nations into contentious international legal battles with uncertain outcomes. A third, hybrid path is also plausible: India may continue expanding its infrastructure under the old treaty's framework, gradually building pressure until Pakistan is forced into diplomatic concessions. In all scenarios, environmental and humanitarian considerations must remain paramount. The Indus River is not just a geopolitical tool; it is a lifeline for millions who depend on it for food, water, and survival.

Ultimately, the Indus River has always symbolized more than just shared geography as it represents the possibility of peaceful coexistence despite deep and enduring animosities. Its waters have flowed through decades of conflict, wars, and crises, offering a rare current of cooperation between two hostile neighbors. Whether this suspension heralds a recalibration toward more realistic, updated agreements, or whether it pushes the region toward greater conflict, remains uncertain. What is clear, however, is that the river still runs through the heart of South Asian geopolitics, and its future course will shape the destiny of both nations for generations to come.

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The Philip Morris v. Uruguay case is a landmark decision that upholds the state’s right to regulate in favour of public health despite opposition from multinational corporations. The ruling underscores that legitimate public health measures do not constitute indirect expropriation or unfair treatment under international investment law. This case has set a strong precedent for governments worldwide to implement and defend similar regulations against corporate challenges.

Citation: Philip Morris Brands Sàrl, Philip Morris Products S.A., and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7

Date of Award: 8^th July, 2016

Institution: International Centre for Settlement of Investment Disputes, ICSID

Panel: Prof. Piero Bernardini (President), Mr. Gary Born, Judge James Crawford (Arbitrators), Mrs. Mairee Uran-Bidegain (Secretary of the Tribunal)

Introduction

The case of Philip Morris Brands Sàrl, Philip Morris Products S.A., and Abal Hermanos S.A. v. Oriental Republic of Uruguay (ICSID Case No. ARB/10/7) represents a landmark decision in the realm of international investment law and intellectual property rights (IPRs). The case addressed whether Uruguay's public health regulations regarding tobacco packaging violated Philip Morris’s rights under the Switzerland-Uruguay Bilateral Investment Treaty (BIT). The ruling reaffirmed the sovereign right of states to regulate in the public interest, particularly concerning health measures.

Facts

Philip Morris, a multinational tobacco company, initiated proceedings against Uruguay following the enactment of two tobacco control regulations:

1. Single Presentation Regulation (SPR): This regulation prohibited tobacco companies from marketing multiple variants under the same brand, restricting them to a single presentation per family brand.
2. 80/80 Regulation: It mandated that health warnings cover 80% of the front and back of cigarette packages, up from the previous 50% requirement.

Philip Morris contended that these regulations amounted to indirect expropriation of its intellectual property and goodwill, violated the fair and equitable treatment (FET) standard, and were disproportionate and arbitrary. After exhausting legal remedies in Uruguay, Philip Morris challenged these regulations under the Switzerland-Uruguay BIT before the International Centre for Settlement of Investment Disputes (ICSID).

Tribunal’s Decision

The tribunal ruled in favour of Uruguay, holding that:

• The tobacco control measures were a valid exercise of Uruguay’s police powers in the interest of public health.
• There was no indirect expropriation since the regulations did not deprive Philip Morris of all economic use of its investment.
• The measures did not breach the FET standard under the BIT as they were reasonable, proportionate, and enacted in good faith.
• Philip Morris was ordered to pay Uruguay’s legal fees and costs, amounting to USD 7 million.

Key legal issues discussed

1. Did Uruguay’s measures amount to indirect expropriation of Philip Morris’s trademarks and goodwill?

No

Philip Morris argued that the SPR and 80/80 Regulations substantially deprived it of its intellectual property, namely trademarks, thereby amounting to indirect expropriation. It claimed the regulations had reduced the value of its brand assets and restricted the use of trademarks.

The tribunal rejected this claim, emphasizing that the regulations did not deprive Philip Morris of its ownership rights over the trademarks but merely restricted their use. The tribunal referred to previous jurisprudence, including Methanex v. United States[1] and Chemtura v. Canada[2], which upheld that regulatory measures enacted for public welfare do not constitute expropriation. The tribunal concluded that Uruguay’s measures fell within its legitimate exercise of police powers.

2. Did Uruguay violate the Fair and Equitable Treatment (FET) standard under the BIT?

No

Philip Morris argued that the measures were arbitrary and lacked a legitimate rationale, particularly the Single Presentation Regulation. However, the tribunal found that the regulations served a legitimate public health purpose and were enacted in good faith.

The tribunal referenced the WHO Framework Convention on Tobacco Control (WHO FCTC), which encouraged states to adopt measures to combat misleading branding of tobacco products. The measures were therefore neither arbitrary nor disproportionate.

The tribunal dismissed these claims, affirming that Uruguay acted in good faith to protect public health. It referenced Saluka v. Czech Republic[3] and Tecmed v. Mexico[4], reinforcing that regulatory changes aimed at legitimate public interests do not breach the FET standard. Moreover, the tribunal ruled that Philip Morris had no reasonable expectation that Uruguay would not introduce stricter public health regulations over time.

3. Did the measures frustrate Philip Morris’s legitimate expectations?

No

The tribunal ruled that Uruguay had not made specific assurances to Philip Morris that its regulatory framework would remain unchanged. Investors must anticipate that regulatory frameworks may evolve, particularly in areas concerning public health.

The decision reinforced that investors do not have a legitimate expectation that states will not modify their regulatory frameworks, particularly in response to public health concerns.

4. Did Uruguay’s measures violate Philip Morris’s intellectual property rights by restricting the use of trademarks?

No

The tribunal held that trademarks confer the right to exclude others from using them but do not provide an absolute right to use the marks in commerce. States retain regulatory authority over how trademarks may be used within their jurisdiction.

It concluded that Uruguay's public health measures did not unlawfully restrict Philip Morris’s trademarks and were consistent with international obligations under the Paris Convention for the Protection of Industrial Property.

Significance and Impact

The ruling in Philip Morris v. Uruguay has had a profound impact on international investment arbitration, particularly concerning the balance between investor rights and state regulatory powers. The decision reinforced the principle that states have the sovereign right to regulate in the public interest, especially in matters of public health. By dismissing Philip Morris’s claims, the tribunal established a strong precedent that public health regulations do not automatically amount to expropriation or unfair treatment under investment treaties.

Another critical takeaway from the case is the distinction between the right to use trademarks and the right to exclude others from using them. The tribunal clarified that trademarks do not grant absolute rights to their owners but rather limited rights subject to state regulation. This distinction has important implications for intellectual property law in the context of investment disputes.

Furthermore, the case has influenced global public health policies. The success of Uruguay in defending its tobacco regulations has emboldened other countries, such as Australia, the United Kingdom, and France, to enforce strict tobacco packaging laws without fear of violating international investment agreements. This has also encouraged the adoption of similar regulatory approaches in other industries, including alcohol and sugary drinks, as governments seek to curb non-communicable diseases through stronger public health measures.

The Philip Morris v. Uruguay decision also highlights ongoing concerns regarding the role of investor-state dispute settlement (ISDS) mechanisms. While the ruling favoured Uruguay, it underscored the potential risks that ISDS poses to state sovereignty, as corporations may continue to challenge public interest regulations in international arbitration forums. As a result, the case has fueled discussions on reforming ISDS mechanisms to ensure a fair balance between investor protection and state regulatory authority.

[1] Methanex Corporation v. United States of America (UNCITRAL).

[2] Chemtura Corporation (formerly Crompton Corporation) v. Government of Canada, PCA Case No. 2008-01.

[3] Saluka Investments B.V. v. The Czech Republic, UNCITRAL.

[4] Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2.

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The decision reinforced investor protections under BITs and highlighted state obligations regarding contract stability. The ruling underscored the importance of fair and equitable treatment, non-arbitrary measures, and the consequences of unlawful expropriation. It serves as a cautionary precedent for host states regarding the consequences of breaching BIT obligations in investor-state disputes.

Citation: Siemens A.G. v. The Argentine Republic, ICSID Case No. ARB/02/8

Date of Award: 17^th January, 2007

Institution: International Centre for Settlement of Investment Disputes, ICSID

Panel: Dr. Andrés Rigo Sureda (President), Judge Charles N. Brower, Professor Domingo Bello Janeiro (Arbitrators)

Facts

• This case set an important precedent in investment arbitration, particularly concerning the assessment of unlawful expropriation. The Tribunal’s decision highlighted the broad protection available to foreign investors under BITs and the legal consequences of host state actions. The ruling clarified that investment treaties protect not only physical assets but also contractual rights. Furthermore, it reinforced that a single government action, such as a decree terminating a contract, could constitute an expropriation. The Tribunal’s preference for the book value method over discounted future profits demonstrated the importance of valuation methodologies in investment disputes. Additionally, the case underscored that compensation should be net of taxes, payable in USD, and accrue compound interest to ensure full reparation. These principles reaffirmed investor confidence in international arbitration mechanisms and served as a warning to host states about the costs of treaty breaches.
• The dispute in Siemens A.G. v. Argentina arose from a contract awarded by Argentina in 1996 for the provision of immigration control, personal identification, and electoral information technology services. Siemens A.G., a German multinational, won the tender through its Argentine subsidiary, Siemens IT Services S.A. (SITS). A contract was signed in 1998 for a six-year period, renewable for two three-year terms, and Siemens provided a USD 20 million performance bond to Argentina as a guarantee for performance.
• In 1999, prior to national elections, Argentina requested a temporary suspension of certain services. The newly elected government in 2000 further suspended services, initiated renegotiations, and later unilaterally altered contract terms. In May 2001, by way of Decree 669/01, Argentina officially terminated the contract without compensation. Siemens subsequently initiated arbitration under the Argentina-Germany Bilateral Investment Treaty (BIT), 1991 before the International Centre for Settlement of Investment Disputes (ICSID), claiming breach of treaty obligations, including expropriation, denial of fair and equitable treatment, failure to provide full protection and security, and arbitrary and discriminatory measures.

Decision

The Tribunal ruled in favor of Siemens, holding that Argentina unlawfully expropriated Siemens’ investment, failed to provide fair and equitable treatment, and took arbitrary measures. The Tribunal awarded Siemens USD 217,838,439, including the return of the performance bond and compensation for post-expropriation costs, with compounded interest at 2.66% per annum.

The Tribunal calculated compensation based on Siemens’ book value of investment rather than expected future profits. The final award included:

• USD 208,440,540 for expropriation (book value method used instead of Discounted Cash Flow method).
• USD 9,178,000 for post-expropriation costs.
• USD 219,899 for unpaid invoices.
• Return of the USD 20 million performance bond.
• Future indemnification for subcontractor claims.
• Interest at 2.66% per annum, compounded annually.

Key legal issues discussed

1. Was there an expropriation of Siemens’ investment?

Yes

The Tribunal found that the termination of the contract via Decree 669/01 amounted to an expropriatory act. While Siemens argued a ‘creeping expropriation,’ the Tribunal held that a single act (the decree) sufficed. The expropriation was deemed unlawful as Argentina neither provided justification nor compensated Siemens, violating Article 4 of the BIT.

2. Did Argentina violate the Fair and Equitable Treatment (FET) standard?

Yes

The Tribunal concluded that Argentina’s actions breached the FET obligation under Article 2(1) of the BIT. Key factors included the government's initiation of renegotiation without a public interest justification, lack of transparency, and failure to honor prior agreements with Siemens.

3. Did Argentina fail to provide full protection and legal security?

Yes

Under Article 4(1) of the BIT, Argentina was obligated to provide full protection and legal security. The Tribunal held that Argentina’s failure to uphold contractual commitments and ensure regulatory stability undermined Siemens’ legal security.

4. Were Argentina’s actions arbitrary?

Yes

The Tribunal found that Argentina’s suspensions and termination of services lacked justification. Notably, Argentina did not allow Siemens to correct a fingerprint error in identity documents, nor did it explain the indefinite suspension of an immigration control sub-system.

5. Did Argentina violate the umbrella clause?

Not decided

The Tribunal found that the contract was between Argentina and Siemens’ subsidiary (SITS), not Siemens itself. Since SITS was not a party to the arbitration, the Tribunal refrained from ruling on the umbrella clause.

6. Was Argentina’s expropriation unlawful?

Yes

The Tribunal deemed Argentina’s expropriation unlawful because:

• There was no public purpose justifying the termination.
• No compensation was provided.
• The government’s conduct indicated bad faith.

Under customary international law, as reflected in the Factory at Chorzów case[1], compensation for an unlawful expropriation must restore the investor to the financial position they would have had absent the expropriation.

7. Was Siemens entitled to compensation for loss of profits?

No

The Tribunal denied Siemens' claim for loss of profits because the project was still in its early stages. It found Siemens' revenue estimates speculative and noted that delays and tax obligations could have reduced potential profits significantly.

8. Was Siemens entitled to compensation for post-expropriation costs and unpaid invoices?

Yes

The Tribunal awarded Siemens compensation for post-expropriation costs incurred in maintaining a skeleton operation and for unpaid invoices related to services already rendered.

9. Did the Tribunal require Argentina to indemnify Siemens for subcontractor claims?

Yes

Since subcontractors could still claim damages from Siemens, the Tribunal required Argentina to indemnify Siemens for any past or future claims by these subcontractors.

10. Was Argentina required to return Siemens’ performance bond?

Yes

The Tribunal ruled that Siemens had met its contractual obligations and that Argentina had terminated the contract for reasons unrelated to Siemens’ performance. Hence, the $20 million performance bond had to be returned.

11. Did the Tribunal allow for taxation on the awarded compensation?

No

The Tribunal held that Siemens must receive compensation net of any taxes and costs, ensuring full reparations for the unlawful expropriation.

[1] Factory at Chorzow (Germ. v. Pol.), 1927 P.C.I.J. (ser. A) No. 9 (July 26).

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The decision in SD Myers v. Canada set important precedents in NAFTA investor-state dispute settlement, particularly regarding the interpretation of national treatment and minimum standard of treatment provisions. The case also clarified the approach to damages in non-expropriation cases, emphasizing the importance of causation and the limits of liability for regulatory actions. The Tribunal’s ruling has been cited in subsequent NAFTA and international investment arbitration cases, particularly in disputes concerning environmental regulations and protectionist measures.

Citation: S.D. Myers, Inc. v. Government of Canada, UNCITRAL

Date of Award: 30^th December, 2002

Institution: Ad Hoc Tribunal (UNCITRAL arbitration rules)

Panel: Mr. J. Martin Hunter (President), Mr. Bryan P. Schwartz and Mr. Edward C. Chiasson (Arbitrators)

Facts

The dispute in S.D. Myers, Inc. v. Canada arose from a regulatory decision taken by the Canadian government that significantly affected the operations of S.D. Myers, Inc. (SDMI), a U.S. corporation specializing in the treatment of Polychlorinated Biphenyls (PCB), a highly hazardous environmental pollutant primarily used in electrical equipment. To expand its business and tap into the Canadian market, SDMI established an investment in Canada, named MYERS Canada, with the goal of collecting PCB waste for processing at its U.S. facility.

The origins of the dispute trace back to 1980 when the United States banned the movement of PCB waste across its borders. However, in the fall of 1995, SDMI was granted a temporary exemption by the U.S. government to import PCB waste from Canada for a period of 25 months. Shortly after this development, the Canadian government issued an Order prohibiting the export of PCB waste to the U.S., effectively blocking SDMI and its Canadian investment from engaging in the intended business. This prohibition lasted approximately 16 months, from November 1995 to February 1997, during which time SDMI's operations were severely hampered.

SDMI filed a claim under Chapter 11 of the North American Free Trade Agreement (NAFTA), alleging that Canada’s actions violated multiple NAFTA provisions, specifically:

• Article 1102 – National Treatment: Ensuring that foreign investors receive treatment no less favourable than domestic investors.
• Article 1105 – Minimum Standard of Treatment: Guaranteeing fair and equitable treatment to foreign investors.
• Article 1106 – Performance Requirements: Prohibiting the imposition of performance requirements that distort trade.
• Article 1110 – Expropriation: Protecting investors from direct or indirect expropriation without adequate compensation.

SDMI sought damages ranging from US $70 to $80 million, claiming lost profits, loss of business opportunities, out-of-pocket expenses, and damage to its goodwill and reputation in the Canadian market.

Decision

The Tribunal ruled in favour of SDMI on the claims of breach of Article 1102 (National Treatment) and Article 1105 (Minimum Standard of Treatment) but dismissed the claims under Article 1106 (Performance Requirements) and Article 1110 (Expropriation). The Tribunal determined that Canada's export ban was not genuinely motivated by environmental concerns but was intended to protect the Canadian PCB disposal industry from foreign competition, particularly from U.S. firms like SDMI. As a result, the Tribunal awarded SDMI CAN$6 million in compensation, a significantly lower amount than the US$70 million initially claimed.

The Tribunal’s detailed assessment of damages emphasized several key principles:

• The fair market value standard does not necessarily apply in non-expropriation cases. Instead, compensation should aim to restore the investor to the financial position they would have been in but for the breach, following the Chorzów Factory[1] principle.
• Damage does not have to occur within the host state (Canada) to be recoverable; it must simply be a direct result of the state’s breach of NAFTA obligations.
• Investors can claim remedies under multiple NAFTA provisions, but there should be no “double recovery.”
• The concept of foreseeability, often applied in contract law, was rejected. Instead, damages were assessed based on the proximity of the loss to the breach.

The Tribunal awarded interest on the damages at the Canadian prime rate plus 1%, compounded annually. It also ordered Canada to cover part of SDMI’s arbitration costs but significantly reduced the legal cost recovery, considering that SDMI only partially succeeded in its claims.

Key legal issues discussed

1. Did Canada violate Article 1102 (National Treatment)?

Yes

The Tribunal found that Canada’s prohibition on PCB waste exports disproportionately affected SDMI while favouring domestic Canadian competitors. The evidence indicated that the measure was primarily driven by economic protectionism rather than genuine environmental concerns. By preventing SDMI from conducting its business in Canada while allowing domestic companies to continue, the measure unfairly discriminated against SDMI and was found to be in violation of Article 1102.

2. Did Canada violate Article 1105 (Minimum Standard of Treatment)?

Yes

The Tribunal determined that Canada’s treatment of SDMI was unjust and arbitrary, reaching a level that was deemed unacceptable by international legal standards. The discriminatory nature of the export ban, which targeted SDMI while benefiting Canadian competitors, was found to breach the minimum standard of treatment required under NAFTA.

3. Did Canada violate Article 1106 (Performance Requirements)?

No

SDMI’s claim under Article 1106 was dismissed as the Tribunal found that the Canadian measure did not impose specific performance requirements on SDMI’s investment. The measure restricted trade but did not mandate that SDMI perform certain obligations within Canada, making it inapplicable under Article 1106.

4. Did Canada’s actions constitute an expropriation under Article 1110?

No

The Tribunal ruled that the export ban did not amount to an expropriation because it did not permanently deprive SDMI of its investment. The measure was temporary and regulatory in nature, rather than an outright seizure of property. Therefore, Canada was not found liable for expropriation under NAFTA.

Conclusion

The decision in SD Myers v. Canada has had significant implications for investor-state dispute settlement under NAFTA. The ruling clarified key aspects of national treatment and minimum standard of treatment provisions, particularly regarding regulatory actions taken by host states. The case has been cited in numerous subsequent disputes involving environmental regulations and economic protectionism. Additionally, the Tribunal’s approach to quantifying damages has influenced other international investment arbitration cases, reinforcing the need for clear causal links between a government’s actions and the financial losses suffered by investors.

Overall, this case underscores the balance that investment tribunals must strike between a state’s regulatory sovereignty and the protection of foreign investors’ rights under international trade agreements. The ruling serves as an important precedent for future disputes involving regulatory measures that may indirectly discriminate against foreign investors under the guise of environmental or economic policy.

[1] Factory at Chorzow (Germ. v. Pol.), 1927 P.C.I.J. (ser. A) No. 9 (July 26).

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Introduction

The Principles of Necessity and Proportionality are the foundation of legal boundaries and fundamental tenets of International Humanitarian Law (IHL). The rules of IHL govern the conduct of hostilities by limiting the means and methods of warfare. These rules create a balance between military action and the principle of humanity. Necessity and Proportionality are such two principles designed to limit death and destruction during war.  They exist at all levels of international and domestic law and have an implied obligation of assessment during an armed conflict.

The Principle of Necessity, also known as Military Necessity[1], is a concept used to justify the use of armed force. The principle dictates that the use of force must be absolutely required to achieve a ‘legitimate military objective’, ensuring that the force used is essential. This standard rule of war limits military actions to necessary applications, prohibiting the use of force beyond the necessary target.

The Principle of Proportionality[2] is the second pillar of International Humanitarian Law, as articulated in Article 51(5)(b) of Additional Protocol 1.[3] This principle legitimizes military actions by determining the balance between objectives, means, and methods employed, alongside the consequences of using armed force. It is related to the principles of precaution and distinction, establishing a core responsibility for military commanders. Additionally, this principle serves as a tool in criminal law, as it may lead to individual criminal responsibility for potential war crimes and crimes against humanity.

These two principles are a crucial part of jus in bello, governing the right conduct of war. They reflect a commitment to humanitarian values, which is highly imperative for modern armed conflicts. There is a distinction between the nature of methods and means of warfare today and what it was during World War II. Learning from the history and vast evidence of the harrowing consequences of wars, the principles of necessity and proportionality are essential to maintaining a moral and legal framework to guide military conduct while safeguarding humanitarian considerations.

Legal Foundations of Necessity and Proportionality in IHL

The legal foundation of necessity and proportionality is primarily based on the Geneva Conventions, their Additional Protocols, and customary international law. They ensure an equilibrium between military objectives and humanitarian imperatives. Civilian suffering during a war cannot completely cease but can be minimised.

The Geneva Conventions of 1949 and their Additional Protocols (1977) explicitly refer to the principles of necessity and proportionality. The Additional Protocol 1 (Article 51(5)(b)) prohibits “indiscriminate attacks” and states that collateral damage should not be excessive as a consequence of achieving a military objective.

Article 57 (2)(a)(iii) of Additional Protocol reinforces the need for proportionality in military objectives by stating, “refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”[4] Such provisions create an obligation for the military commander to assess the impact on civilians against the anticipated military gain before the attack is executed.

Beyond treaties, these principles are integral elements of customary international humanitarian law. Their customary status means that these principles are binding on all states, regardless of whether they are members of specific treaties. The International Committee of the Red Cross has affirmed that these principles are universally recognized and apply to both international and non-international armed conflicts.

The Martens Clause[5] further safeguards civilians, though it does not explicitly state the principles. Nevertheless, the clause asserts that if certain legal provisions are absent during wartime, civilians should be treated humanely and protected from unnecessary suffering. This clause complements existing principles and establishes a humanitarian obligation that transcends statutory law. The legal foundation of proportionality and necessity is rooted in the foundation of IHL in both treaty and customary sources. Along with the Martens clause, a comprehensive framework is established that protects civilians while allowing for necessary military actions.

Principle of Necessity in Armed Conflict

The Principle of Necessity, also referred to as military necessity, allows for military actions that are essential for achieving specific goals during war while keeping the actions bound to IHL. However, this principle cannot be used to justify war crimes or any other action that violates humanitarian law. The concept of necessity means the action must directly contribute to defeating the targeted enemy without causing unnecessary suffering and destruction.[6] The principle is primarily based on four main elements:

1. Military action should be urgent
2. Necessary to achieve
3. Known military purpose
4. Consistent with international humanitarian law

In situations where the Geneva Convention is breached and alleged war crimes and/or crimes against humanity are committed, establishing the absence of any military necessity becomes of the utmost importance for the prosecutor. Necessity does not stand as an isolated principle. It must always be articulated with other rules of warfare. Asserting military necessity is not sufficient, which is why proportionality, precaution and distinction are interrelated.

The International Court of Justice (ICJ) Advisory Opinion on the Legality of the Use or Threat of Nuclear Weapons (1996)[7] is a significant case that highlights the complexities of military necessity. The ICJ provided legal guidance and clarification as a formal advisory response to the United Nations General Assembly. The court concluded that while states have a right to self-defence, the use or threat of nuclear weapons would be contrary to international and humanitarian law. The court stated that it could not definitively state whether the use of nuclear weapons would be lawful as they can create catastrophic consequences. ICJ found that under Article VI of the Nuclear Non-Proliferation Treaty[8] and other international laws, states have an obligation to "pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control".[9] The court did not make a new law but rather confirmed a well-established principle of war.

Principle of Proportionality in Armed Conflict

The Principle of Proportionality in armed conflict states that the civilian harm caused by a military should be proportionate.[10] The principle requires that the effect of military means and methods must not be disproportionate to the military advantage. It seeks to limit the damage caused by military operations to civilians and civilian objects. The application of this principle is critical for the modern warfare climate as it has advanced to airstrikes, drone warfare, siege warfare, and targeted killing which increases the potential loss of civilian casualties.

The principle is specific to situations of attacks against military objectives when collateral damage is expected. The application of proportionality lacks breadth, suggesting it is rather a rule and not a principle. However, determining whether the loss is proportionate to the military advantage is subjective, raising the question, “How to assess the value of innocent human lives as opposed to capturing or destroying a particular military objective?”[11] In situations where there is doubt regarding the legality of the application, the court may assess the proportionality of facts as a posteriori,[12] meaning that the court will evaluate the legality after the fact based on available evidence.

In 1999, NATO intervened in Kosovo, aiming to halt the human rights abuses against Albanians by Serbian forces during the war. The NATO military campaign was justified under humanitarian necessity and stated that military action was required to prevent atrocities.[13] Nevertheless, NATO was criticised for airstrikes that targeted civilian infrastructure, which resulted in excessive civilian casualties and damage. The Chinese embassy bombing in Belgrade further raised questions and accusations regarding negligence of proportionality.

The International Criminal Tribunal for the Formal Yugoslavia (ICTY) analysed these allegations under the framework of IHL. The tribunals emphasised that while military necessity can be exercised and used to justify certain actions, it does not absolve the parties from following proportionality.[14]

Conclusion

In conclusion, proportionality and necessity are fundamental to IHL and the protection of civilians. They ensure that military operations are conducted within the ambit of the boundary established by them. However, the effectiveness of the application can be challenging as excessive casualties can be subjective specifically during modern warfare.

Some might argue that there is an urgent need for stronger mechanisms. However, parties can create loopholes as there are limitations to international law. As the nature of conflicts evolves, the only effective measure can be domesticating international principles into law and policy and having a course of action for the violation of such laws. It is imperative to ensure the principles remain relevant and effective by strengthening legal frameworks and fostering international cooperation. 

[1] ICRC, ‘Military Necessity’ (ICRC Casebook) https://casebook.icrc.org/a_to_z/glossary/military-necessity.

[2] ICRC, ‘Proportionality’ (ICRC Casebook)  https://casebook.icrc.org/glossary/proportionality

[3] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977) art 51 https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-51. accessed 19^th February 2025

[4] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977) art 57 https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-57  accessed 19^th February 2025

[5] Rupert Ticehurst, ‘The Martens Clause and the Laws of Armed Conflict’ (International Institute of Humanitarian Law, July 2021) https://www.onlinelibrary.iihl.org/wp-content/uploads/2021/07/Martens-Clause-LOAC.pdf  accessed 19^th February 2025

[6] Military Necessity’ in The Practical Guide to Humanitarian Law https://guide-humanitarian-law.org/content/article/3/military-necessity/  accessed 19^th February 2025

[7] Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 https://www.icj-cij.org/case/95    accessed 19^th February 2025

[8] Treaty on the Non-Proliferation of Nuclear Weapons (adopted 1 July 1968, entered into force 5 March 1970) 729 UNTS 161 https://www.un.org/en/conf/npt/2005/npttreaty.html  accessed 19^th February 2025

[9] Reaching Critical Will, ‘International Court of Justice and its 1996 Advisory Opinion’ https://www.reachingcriticalwill.org/resources/fact-sheets/critical-issues/4744-international-court-of-justice-and-its-1996-advisory-opinion   accessed 19^th February 2025

[10] Mishal Murad, ‘Cardinal Principles of International Humanitarian Law’ (12 August 2021) DLP Forum https://www.dlpforum.org/2021/08/12/cardinal-principles-of-ihl/  accessed 19^th February 2025

[11] William J Fenrick, ‘Applying IHL Targeting Rules to Practical Situations: Proportionality and Military Objectives’ Windsor Yearbook of Access to Justice https://wyaj.uwindsor.ca/index.php/wyaj/article/view/4535  accessed 19^th February 2025

[12] ‘Proportionality’ in The Practical Guide to Humanitarian Law https://guide-humanitarian-law.org/content/article/3/proportionality/  accessed 19^th February 2025

[13] NATO, ‘Kosovo Air Campaign (March-June 1999): Operation Allied Force’ https://www.nato.int/cps/en/natohq/topics_49602.htm#:~:text=In%201999%2C%20once%20all%20diplomatic,a%20total%20of%2078%20days  accessed 19^th February 2025

[14] ICTY, ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia’ (2000) https://www.icty.org/en/press/final-report-prosecutor-committee-established-review-nato-bombing-campaign-against-federal  accessed 19^th February 2025

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Introduction

International arbitration has emerged as a dominant dispute resolution mechanism for cross-border conflicts, with two primary branches: International Commercial Arbitration (ICA) and International Investment Arbitration (IIA). While both mechanisms are rooted in arbitration principles, their evolution has led to significant distinctions, particularly concerning public policy considerations, legal frameworks, transparency, coherence, and their implications for state sovereignty.

The Public Policy Dimension

One of the defining distinctions between ICA and IIA is the extent of public policy involvement. ICA primarily adjudicates private commercial disputes between corporations or business entities, maintaining a contractual focus and prioritizing party autonomy. In contrast, IIA involves disputes between foreign investors and sovereign states, raising fundamental concerns about public interest, national regulatory authority, and economic policy.

IIA disputes frequently involve matters such as expropriation, taxation, environmental regulation, and human rights obligations, all of which transcend the purely contractual domain of ICA. Given these public implications, IIA has been subjected to calls for increased transparency and legitimacy, distinguishing it from ICA’s traditionally confidential nature. The host state’s obligations under investment treaties often limit its sovereign right to regulate, leading to complex interactions between investor rights and national interests.

Distinguishing Features and Legal Frameworks

While ICA and IIA share procedural elements such as tribunal constitution, evidence rules, and enforcement mechanisms, they diverge significantly in their legal foundations and jurisdictional bases:

• Applicable Law: ICA is primarily governed by private international law, contract law, and institutional rules (e.g., ICC, LCIA, SCC). In contrast, IIA operates under international investment law, incorporating Bilateral Investment Treaties (BITs), Free Trade Agreements (FTAs), and multilateral treaties such as the ICSID Convention.
• Jurisdiction: ICA derives its jurisdiction from arbitration agreements in commercial contracts, reflecting party autonomy. IIA, on the other hand, is based on states' general consent to arbitrate investment disputes under BITs and multilateral agreements. This consent extends beyond specific disputes, potentially leading to multiple claims from investors against states.
• State Involvement and Sovereign Authority: ICA disputes involve two private parties with commercial interests, while IIA cases often pit a private investor against a sovereign state. This creates unique challenges in IIA, where state actions, such as regulatory changes, public health measures, or environmental policies, are scrutinized under international investment standards.
• Investor Rights vs. State Obligations: IIA often features stabilization clauses that limit a state's ability to modify regulations affecting investments. Umbrella clauses in investment treaties can elevate contractual breaches to treaty violations, compelling states to adhere to commitments beyond typical commercial arrangements.

Legitimacy, Accountability, and Public Interest Considerations

One of the primary criticisms of IIA is its perceived investor bias, as it grants foreign investors direct access to arbitration against states while states cannot initiate equivalent claims against investors. However, concerns about legitimacy persist. Arbitrators in IIA cases are bound by strict impartiality and integrity requirements, yet the perception remains that the system favors corporate interests. Transparency initiatives, such as the UNCITRAL Rules on Transparency and the Mauritius Convention, aim to address these concerns by mandating public access to procedural documents and hearings. Nevertheless, the balance between confidentiality and public interest remains a contentious issue.

Coherence and Consistency in Investment Arbitration

A major critique of IIA is its inconsistent jurisprudence. Unlike domestic legal systems with hierarchical judicial structures, IIA lacks a formal precedent system, leading to inconsistent rulings on similar treaty provisions. For example, the divergent outcomes in SGS v. Pakistan[1] and SGS v. Philippines[2] illustrate the unpredictability of treaty interpretation in IIA.

To address this issue, legal scholars advocate for a "jurisprudence constante" approach, encouraging tribunals to align their decisions with prior rulings to enhance predictability. The lack of an appellate mechanism in IIA further complicates matters, as erroneous decisions may not be corrected, potentially undermining the system's credibility.[3]

Transparency vs. Confidentiality in Arbitration

Confidentiality has traditionally been a hallmark of ICA, allowing businesses to resolve disputes discreetly while protecting sensitive commercial information. However, IIA has undergone a paradigm shift toward greater transparency due to its public policy implications. This shift is evident in:

• The UNCITRAL Rules on Transparency, which mandate disclosure of key procedural documents and hearings.
• The Mauritius Convention on Transparency, extending transparency provisions to older investment treaties.
• The publication of arbitral awards in major investment arbitration forums, subjecting decisions to broader scrutiny.

While transparency enhances accountability, it must be balanced with efficiency and party autonomy. Excessive procedural formalities could lead to prolonged disputes, increased costs, and reduced attractiveness of arbitration as a dispute resolution mechanism.

The Role of Amicus Curiae in Investment Arbitration

Amicus curiae participation is another area where IIA diverges from ICA. Given IIA’s broader public policy impact, third-party interventions from civil society organizations, trade unions, and intergovernmental organizations have become more common. The Biwater v. Tanzania[4] case exemplifies the increasing acceptance of amicus curiae participation, acknowledging the broader public interest in arbitration proceedings.

While amici can enhance legitimacy and offer valuable insights, their inclusion raises concerns about procedural delays and increased litigation costs. The challenge lies in ensuring meaningful participation without undermining arbitration’s efficiency.

Conclusion

ICA and IIA, while both rooted in arbitration principles, have evolved into distinct yet interrelated legal frameworks. ICA remains primarily focused on resolving private commercial disputes, whereas IIA has significant public policy implications, requiring greater transparency, legitimacy, and systemic coherence.

The growing influence of IIA necessitates a balance between investor protection and state sovereignty. As investment treaties evolve, states are increasingly introducing provisions aimed at preserving their regulatory authority while still offering investors legal certainty.

Inconsistencies in investment arbitration decisions highlight the need for a more structured approach to jurisprudence. While arbitrators are not bound by a formal precedent system, aligning with established case law can contribute to predictability and fairness in decision-making.

Transparency in IIA enhances accountability, yet it must be implemented in a manner that does not compromise procedural efficiency. The inclusion of amicus curiae and public access to arbitration records are steps toward legitimacy but require careful management to avoid excessive procedural burdens.

Moving forward, international arbitration will continue to play a vital role in global dispute resolution. Strengthening institutional frameworks, refining transparency measures, and promoting jurisprudential consistency will be essential in maintaining the credibility of both ICA and IIA. As reforms progress, balancing investor rights with state sovereignty will remain a central challenge in ensuring fair and effective dispute resolution.

[1] SGS v Pakistan [ICSID], ARB/01/13, Decision of the Tribunal on Objections to Jurisdiction (August 6, 2003).

[2] SGS v Philippines [ICSID], ARB/02/06, Decision of the Tribunal on Objections to Jurisdiction (January 29, 2004).

[3] Continental Casualty Company v The Argentine Republic [ICSID], ARB/03/9.

[4] Biwater Gauff v. Tanzania [ICSID], ARB/05/22, award 24 July 2008.

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Metalclad v. Mexico remains a cornerstone case in investment arbitration, balancing investor protections against host states’ regulatory autonomy. It highlights the complexities of expropriation claims and the evolving standards of fair and equitable treatment under international law. The case continues to inform investment treaty interpretation and arbitral decision-making, particularly in disputes involving regulatory measures and indirect expropriation claims.

Citation: Metalclad Corp. v. United Mexican States, ICSID Case No. ARB(AF)/97/1

Date of Decision: 2^nd May, 2001

Institution: International Centre for Settlement of Investment Disputes (ICSID)

Panel: Prof. Sir Elihu Lauterpacht, QC, CBE (president), Mr. Benjamin Civiletti, Mr. Jose Luis Siqueiros (Arbitrators)

Facts

• The dispute in Metalclad Corp. v. United Mexican States arose when Metalclad, a U.S. corporation, faced governmental obstruction in operating a hazardous waste disposal facility in La Pedrera, San Luis Potosi, Mexico. Two primary government actions led to the conflict: regulatory denials that prevented the issuance of necessary permits and an Ecological Decree that designated the land as a protected area, effectively stripping Metalclad of its investment use.
• In 1990, the Mexican federal government granted COTERIN, a Mexican company, a permit to establish a hazardous waste transfer station in La Pedrera. By January 1993, the permit was extended to cover a hazardous waste landfill. Metalclad entered into a purchase agreement for COTERIN in April 1993, contingent upon securing full regulatory approval. Although the state government issued a land use permit in May 1993, it did not grant construction or operational clearance.
• Believing it had garnered government support following a meeting with the state governor in June 1993, Metalclad finalized the acquisition of COTERIN in September 1993. However, soon after, the governor, initiated opposition against the project. Despite initial confidence in state backing, construction was halted in October 1994 due to the absence of a municipal construction permit. Federal officials reassured Metalclad that the permit was procedural and would be granted, prompting Metalclad to resume construction in November 1994. A final federal permit was issued in January 1995, and an environmental impact assessment was approved the following month with required mitigation measures.
• By March 1995, construction was completed, but the facility never became operational due to protests allegedly supported by state officials and law enforcement. In November 1995, Metalclad reached an agreement with federal authorities on additional environmental measures, but the state government refused to recognize the accord. In December 1995, the municipality formally denied the construction permit, citing earlier permit rejections issued to COTERIN in 1991 and 1992. The municipality further pursued legal action to challenge the federal authorization in January 1996. Faced with these obstacles, Metalclad initiated arbitration proceedings in January 1997.
• In September 1997, the governor of San Luis Potosi issued an Ecological Decree, designating the land as a protected area for rare cacti. This measure nullified Metalclad’s ability to operate its facility, rendering its investment useless.

Metalclad filed claims under NAFTA, alleging violations of:

1. Article 1105 (Minimum Standard of Treatment)[1] – Mexico’s actions violated fair and equitable treatment standards.
2. Article 1110 (Expropriation)[2] – The denial of the construction permit and the Ecological Decree amounted to indirect expropriation.
3. Article 1110 (Expropriation via the Ecological Decree)[3] – The decree independently constituted an expropriation.

Decision

The Tribunal ruled in favor of Metalclad on all three claims and awarded $16.5 million in damages. Mexico sought judicial review in Canada, where the arbitration was legally seated. The Supreme Court of British Columbia partially annulled the decision, striking down the findings on Articles 1105 and the first expropriation claim under Article 1110, but upholding the ruling on the Ecological Decree as expropriation.

Key legal issues discussed

1. Did Mexico violate NAFTA’s minimum standard of treatment under Article 1105?

Yes 

The Tribunal found that Mexico had violated Article 1105 by failing to provide a transparent and predictable regulatory framework. It held that the lack of clarity in the permit approval process, along with inconsistent actions by different levels of government, resulted in legal uncertainty for Metalclad. Investors, the Tribunal emphasized, should be able to rely on clear and predictable governmental procedures when making investment decisions. However, on judicial review, the Canadian court annulled this finding. It determined that the Tribunal had overstepped its jurisdiction by incorporating transparency obligations that were not explicitly stated within Article 1105, but rather inferred from other NAFTA provisions.

2. Did the denial of the construction permit amount to expropriation?

Yes, initially 

The Tribunal ruled that Mexico’s refusal to issue the construction permit amounted to an indirect expropriation of Metalclad’s investment. Metalclad had met federal regulatory requirements and had received assurances from government officials, leading it to believe it had all necessary approvals. However, the refusal to grant the final municipal construction permit effectively prevented Metalclad from using its investment. Despite this initial finding, the Canadian court annulled the ruling, reasoning that the Tribunal had adopted an overly broad interpretation of NAFTA’s expropriation provisions. The court concluded that the mere denial of a permit, even if arbitrary, did not necessarily constitute an expropriation under international law.

3. Did the Ecological Decree constitute an expropriation?

Yes 

The Tribunal held that the Ecological Decree, which designated Metalclad’s investment site as a protected area, effectively deprived the company of its property’s economic use. Under NAFTA, expropriation encompasses any measure that significantly interferes with an investor’s ability to benefit from its investment, regardless of the government's intent. Since the decree prevented Metalclad from operating its hazardous waste facility, it was deemed an expropriation. The Canadian court upheld this finding, agreeing that although the Tribunal had applied a broad definition of expropriation, its conclusion was not “patently unreasonable.”

Conclusion

The Tribunal’s broad reading of Article 1105 regarding fair and equitable treatment proved controversial, leading to its annulment on judicial review. In terms of expropriation, the Tribunal applied an expansive economic impact test, raising concerns about the balance between investor protection and the regulatory authority of host states. The judicial review process in Canada reinforced limits on arbitral tribunals’ ability to extend treaty obligations beyond customary international law. Ultimately, this case remains a landmark decision in investment arbitration, shaping future interpretations of expropriation and fair treatment under international law.

[1] Article 1105 of the North American Free Trade Agreement (NAFTA). 

[2] Article 1110 of the North American Free Trade Agreement (NAFTA).

[3] Ibid.

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Introduction

Information and computer technology (ICTs) permeates every facet of one’s contemporary digital lifestyle. The expansion of technology and the use of the Internet have become a basic part of every individual, regardless of their age or work, be it student or employee. Some use ICTs to make their work and lifestyles hassle-free, but on the contrary some use ICTs for committing Cyber Crimes. Hence, cyber laws play a significant role as a foundational framework for ensuring human rights, i.e., ensuring security, protecting the right to privacy, and acting as regulatory governance in this contemporary cyberspace.

Globalisation has been a driving force behind the development of international law, which serves as a mechanism to regulate interactions among states. As L. Oppenheim, often regarded as the father of modern international law, defined it:

"The Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilised States in their intercourse with each other.[1]"

In today’s digital age, technological advancements have transformed globalization into an interconnected digital ecosystem, mitigating geographical barriers and fostering seamless communication, trade, and innovation. A prime example of this transformation is e-commerce, which has revolutionized global commerce by enabling cross-border transactions and digital marketplaces.

However, this technological expansion—driven by the internet and emerging technologies such as artificial intelligence (AI), blockchain, and cloud computing—has not only boosted economies and strengthened communication networks but also introduced new vulnerabilities. The borderless nature of cyberspace presents significant legal and security challenges, necessitating a global regulatory framework to protect individuals, businesses, and states from cyber threats.

International Laws & Conventions

Unlike traditional or blue-collar crimes, cybercrime is not confined to any physical territory, it’s the meta world, which cannot be confined by national boundaries or laws and orders. Increasing cybercrimes like- breach of data, identity theft, and digital arrest, financial cyber frauds, threats the global security.   Cyber laws have become essential for protecting digitally sensitive information either of a company or of an individual, from cyber threats, and the need for the laws accelerated because of the interconnected nature of the digital landscape and additionally the need for a unified approach in the laws to combat cybercrime extra judicially.

1. Role of International Conventions in Regulating Cyber Laws

International Laws and conventions have played a significant role in combating cybercrimes because the state is not fully capable of prohibiting cybercrimes in a vacuum, because of its extra-territorial nature and its technological advancement. The interconnection of the digital world makes it a global problem, not a single-state issue, and for the decade there has been a continuous effort from international law, to make the state aware of the need to unite and coordinate actions against this global problem.[2].

To combat cybercrime with great effort, to strengthen global security, to bring uniformity in legal approaches and lastly, to protect human rights, several treaties and conventions have been introduced and developed, which have been discussed thoroughly. 

2. The Budapest Convention (2001)

After World War II, the 10 founding members, including all the members of the European Union (EU) and Council of Europe (COE) made a convention for the first time relating to cyber-crime and addressing the need for substantive and procedural laws, to expand its role beyond the territorial boundaries. It had an expansive view, following the recommendations of 1985 and 1989. A committee of Experts on Crime in Cyberspace was established for the drafting purpose in the year 1997[3].

This convention was the first binding convention that brought to light the increasing cybercrime, also known as the “European Convention on Cybercrime.[4].” The convention was opened for signature in the year November 2001 and came into force on July 01, 2004[5]. It was drawn by the Council of Europe in Strasbourg, with 64 other countries, including Japan, the United States, and others. Five Countries got the status of observer, and those countries were Canada, the Holy See, Japan, Mexico, and the United States of America.[6]” Although, India was a non-member of this convention.  

It was based upon three primary objectives, firstly it included that, “firstly, there was a need for the criminalisation of conduct; secondly focused on improving the techniques for investigation, focused on the procedural law tool, and lastly, required more cooperation among the nations for the effective international corporation, and it addresses the need to harmonise the national laws.” It addresses the most important cyber offences like illegal access of data or data infringement, misuse of devices, cyber fraud including cyber forgery, and the offence of child pornography. And, additionally, talk about the offences related to intellectual property rights, like infringement of the copyright.  The convention not only focuses on cyber offences, but also enables procedural powers, and its range is exhaustive.

It has two additional protocols as follows:

• 1^st Additional Protocol[7], which criminalised the acts committed through computer systems of a nature of racist and xenophobic.
• 2^nd Additional Protocol[8], was opened for signatory in March 2022, and has been designed to empower the effective investigation including electronic evidence.

This convention aimed for the free flow of the internet with restrictions that were defined to reconcile an effective criminal justice system with the safeguarding of human rights.  This convention was open to non-member states by invitation and achieved the unanimous decision of the parties of the convention.

A. Other Countries on Budapest Convention

The take on the convention could be easily understood by going through how many countries have signed the convention, ratified it or made it a part of their legislation:

• First, there is a category of countries that are part of COE, i.e., at the time of writing there were 12 members of COE that signed the convention but did not rectify it. Ironically, Russia which was part COE, did not even sign the convention.  
• The second category includes non-member states that had signed, i.e., Canada, Japan, and South Africa, and the invitation was sent to the nations that were, Argentina, Chile, Costa, Rica, The Dominica Republic, Mexico, and the Philippines.
• The Third category includes members that had ratified, including, the UK (2011), Malta (2012), and USA (2007).
• Lastly, the Fourth category includes non-member states that were preparing to ratify, including Australia, Canada, Japan, and Switzerland.  

The big advantage of this convention was the technologically neutral language, trying to address the jurisdiction issues, and talking about the procedural and substantive laws to combat cybercrime. 

B. Convention on Cyber-law & Sovereignty

This convention has also faced a lot of criticism, which could be considered as the reason for many nations' hesitation to sign this treaty and a few of them are:

• Violation of State Sovereignty, one of the major criticisms, as it infringes state sovereignty principle for accessing the data, and countries like Russia, India, and China are not in favour of giving access to European Authorities because of their national concern.
• The Euro-centric approach, primarily reflects the interests and values of European Nations, which made it difficult to create uniformity.
• Failure to address advanced and evolving digital threats, after having technological natural language, it had failed to address threats like spam, and other evolving digital cyber-crimes like deepfake.

They were the main reason for having an alternative approach, i.e., Russia proposing an alternative framework to the UN that would respect state sovereignty. Due to this reason, it has no binding force, although it acts as a Magna Carta for cyber laws, it is often used as a model law to shape their domestic cyber laws.  

3. Russia’s Convention on Cyber Crime

Russia, from the very beginning, was demanding a separate convention for cybercrime, because according to Russia, the European Convention on Cybercrime violates the state sovereignty and for years Russia has led a campaign that was in opposition to the Budapest Convention. And, for the same Russia-led initiative for a new cyber law convention in the UN. And, for almost 20 years Russia was proposing the UN make a treaty on the same.

• In the year 2017, Russia made an initial proposal and presented a draft named UN Convention in Combating Cybercrime, making it a formal beginning of a convention led by Russia on Cyber Crime before the UNGA. Iran and India also backed the argument of Russia.
• The idea was proposed in the year 2019 for the establishment of the Framework, sponsored by Russia, China and Cambodia also joined the proposal as a co-sponsor and India also voted in favour.  Russia proposed to call for the formation of this new committee to establish a new treaty that would allow nations and states to coordinate and share data according to their will to prevent cyber-crime.
• In the year 2020 in New York, there was an establishment Ad-Hoc Committee (AHC), to work on the recommendations as a response to Russia, and develop a comprehended framework on an international level.
• The treaty was then drafted for three years, and the year 2022 could be marked as a negotiation session; throughout the year 2022, multiple sessions occurred focusing on “definitions of cyber-crime, international corporation, and law enforcement power.”
• The finalized draft was published by AHC in June 2023, which includes the subsequent sessions, and addressed key issues like criminal offences and provisions of cross-border data access.

Recently, on 9^th of August, 2024[9] marked the victory of state sovereignty because the UN Office on Drugs and Crime announced the adoption of a “universal cybercrime convention” by the member state. This is the second International Convention on Cybercrimes protecting state sovereignty.  This convention is open for signature and ratification, and it will require at least 40 signatories from the countries, to come into force by 31^st December, 2026.

The Key theme of this convention, is that it has an inclusive, and broad definition of cyber-crime offences, it has tried to emphasise sovereignty issues, and has also the involvement of civil society organisations, that will ensure human rights integration with the framework of the convention.

The main critique of this convention is that it is too broad and could be easily misused and the criticism made by the Civil Society Organisation. The US, the UK, Japan, and Australia[10] Were against this convention because of the complexity of the treaty process, and according to them, there was no need to introduce a new convention. According to them, it is a duplicate of the old convention.

This marks the shift from the Budapest Convention towards the UN convention on cybercrimes, which will also respect sovereignty and will bring uniformity across the nations.

4. India’s take on these International Conventions

India has been very serious about its state’s sovereignty, and it has prioritised that and is in favour of the independent legislative approach whenever it comes to dealing with cyber-crimes, India’s stance on both of these important conventions is highly influenced by these considerations.

A. Budapest Convention (2001): India was a non-member, and was never a signatory of this convention because for the following reasons:

• This convention mandates the sharing of data with foreign law enforcement agencies, and India has prioritised State Sovereignty, India believed that it would violate the same, leading to raising concerns of rising jurisdictional interference of foreign executive bodies.
• India was excluded from the drafting process from the beginning of the drafting procedure.

B. Russia-led UN Convention on Cybercrime: India has been inclined towards this convention because it has a more inclusive approach, focuses and respects State Sovereignty, also this convention is aligned with India's Strategies, and that is the reason India has shown its inclination giving votes in favour of this convention. Although, India has still not rectified or signed the convention.

C. Despite its non-membership in international conventions, India has worked on its National Law Framework, and robust legislation to deal with the cyber-crimes:

• The Information Technology Act,2000 (IT ACT), is a specialised and primary legislation that deals with the punishment and definition of cyber offences like, “hacking (Section 66), Identity theft (section 66 C), Cyber terrorism (section 66 F), Unauthorised Access of Data and Data Breaches (section 43 & 66), and many more, it’s an inclusive act which with help of amendment can bring changes as required with technological advancement.
• Another important act, a new Criminal law, i.e., Bharatiya Nyaya Shanita (BNS, 2023), deals with offences like Cyber Fraud under section 317[11] Of the BNS, Cyber Stalking and harassment, including provision for Cyber Terrorism.
• The recognition of digital evidence and forensic Authentication of Digital Evidence is dealt with and explained under the Bharatiya Sakshya Adhiniyam (BSA, 2023).
• Additionally, India is also working on various policies to combat cyber offences, like the Digital Personal Data Protection Act, of 2023, which handles and regulates the handling the data access while safeguarding privacy rights, and others are building and establishing CERT-In[12], a nodal agency made up to respond to cybersecurity in India.

UN Initiatives: From where to here

From the year 1974, when the technologies started to advance and opened the gate for complex, unprecedented cyber-crimes, the UN has taken a lot of initiatives related to cyber-crimes and to make cyber laws and tried to encourage the international incorporation over a decade:

• The year 1990 to 2001, could mark an era of emerging awareness from, as initially, in the year 1990 the 8^th UN Crime Congress recognised computer-related offences for the first time, and adopted the principle and action plan to tackle the cyber offences in 1997. Afterwards, in the year 2001, the Budapest Convention was adopted by the EOC and became the first international treaty on cyber-crimes.
• Then, in the next decade, there was an adoption of various multilateral initiatives to encourage international cooperation between the member states. In the year 2002, The UN Commission on Crime Prevention and Criminal Justice (CPPCJ), was adopted to emphasize the need for the same, but failed to adopt advanced measures on cyber-crimes.
• In the present decade, the polarized approach has been adopted, in which an Expert Group Meeting was established in the year 2011, to study cyber-crimes as well as the diverse views of state members. And, in the year 2014, the Arab Convention on Combating IT offences was adopted.
• Later, in the year 2017, Russia-led initiatives addressing concern about human rights and safeguarding State Sovereignty submitted a draft on the same before the UN, which took over three years of drafting by AHC, 6 negotiation rounds in Vienna and New York, resulting in the agreement of the member state in the year 2023 and adoption by the UN in 2024, and open for signatory till the year 2026, marked as an establishment of second convention on cybercrimes.

Conclusion

For many years, cyberspace has marked its involvement in various aspects of the life of an individual. At the beginning of the expansion of cyberspace, the view was that effective governance and regulation in cyberspace could be achieved only through a multi-stakeholder approach which included multilayers like government, civil society, and digital organisation, but the development and evolutionary changes happened around the UN Cybercrime Convention has changed that view very effectively, and reflected a shift towards government-led incentives, with sovereignty in cyber laws is an emerging principle which is supported by the various strong nations. And, the UN is still in its early stages of dealing with cyber-crimes.

For the long run effectiveness, the international corporation is required to deal with the extra judicial cyber-crime, to safeguard human rights across the globe without any physical boundaries to deal with offences such as cyber terrorism, fraud, and breach of data. And, maintaining cooperation between nations is an important and difficult task for the effectiveness of the convention, and cyber-crimes like cyber war or cyber terrorism are global offences, as it affects the whole world in one way or another.

[1] Robert Jennings, Arthur Watts, Oppenheim's International Law. Volume I: Peace by Lassa Oppenheim.

[2] Jonathan Clough, A World of Difference: The Budapest Convention of Cybercrime and the Challenges of Harmonisation, 40 MONASH U. L. REV. 698 (2014).

[3] Council of Europe, 'Convention on Cybercrime (ETS No 185) Explanatory Report' (Explanatory Report). 

[4] Ibid.

[5] Convention.

[6] 'The Council of Europe's Relations with Non-Member States' (Council of Europe External Relations).    

[7] The criminalisation of acts of a racist and xenophobic nature committed through computer systems (ETS No. 189)

[8] Enhanced cooperation and disclosure of electronic evidence (CETS No. 224)

[9] United Nations: Member States finalize a new cybercrime convention. (n.d.). United Nations : Office on Drugs and Crime.

[10] Isabella Wilkinson, What is the UN cybercrime treaty and why does it matter? Chatham House, The Royal Institute of International Affairs, 2025.

[11] Stolen property.

[12] Indian Computer Emergency Response Team.

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This case highlights that expropriation includes indirect government measures that deprive investors of the use and value of their investment, and politically motivated actions lacking social necessity can constitute expropriation. States must ensure regulatory stability and clear guidelines to maintain fair and equitable treatment. While full protection and security apply to physical safety, states are not liable unless they fail to respond reasonably to adverse actions. The decision reinforces the balance between state regulatory powers and investor protections in international investment law.

Citation: International Centre for Settlement of Investment Disputes, ICSID Case No. ARB (AF)/00/2, Award, 43 I.L.M. 133 (2004)

Date of Award: 29th May, 2003

Institution: International Centre for Settlement of Investment Disputes, ICSID

Panel: Dr. Horacio A. Grigera Naon (President), Prof. José Carlos Fernandez Rozas & Mr. Carlos Bernal Verea (Co-arbitrators), Ms. Gabriela Alvarez Avila (Secretary to the Tribunal)

Facts

• Tecnicas Medioambientales Tecmed S.A. (Claimant) (P), a Spanish company, initiated arbitration proceedings against Mexico (D) before the International Centre for Settlement of Investment Disputes (ICSID). Tecmed was the parent company of Tecnicas Medioambientales de Mexico, S.A. de C.V. (Tecmed Mexico), a company incorporated under Mexican law, which in turn owned Cytrar, S.A. de C.V. (Cytrar), another Mexican entity. Cytrar operated a hazardous industrial waste landfill (the "Landfill") in Hermosillo, Sonora, Mexico, under a license granted by the Mexican environmental authority, Instituto Nacional de Ecologia (INE), in 1996. The license was subject to annual renewal at the discretion of INE.
• The license was renewed in subsequent years until 1998, when INE refused renewal and ordered Cytrar to cease operations, citing a municipal resolution (the "Resolution"). This refusal to renew was politically motivated due to a shift in the local government and growing community opposition, rather than being based on environmental concerns. The Claimant alleged that the non-renewal amounted to an expropriation of its investment and sought damages, compensation for reputational harm, and permission to continue operations. The Claimant relied on the Agreement on the Reciprocal Promotion and Protection of Investments (the "Agreement") between Spain and Mexico, arguing that Mexico violated provisions related to expropriation and fair and equitable treatment.
• Mexico countered these claims, arguing that INE acted within its discretionary regulatory authority, that the decision was a legitimate exercise of the state's police power, and that the dispute should be governed by domestic rather than international law.

Decision and Award

The tribunal found in favour of the Claimant on the grounds of expropriation and failure to provide fair and equitable treatment. It ruled that the non-renewal of Cytrar’s license, influenced by political motives rather than regulatory necessity, constituted an unlawful expropriation under international law. Additionally, Mexico’s actions breached the standard of fair and equitable treatment by undermining the Claimant’s legitimate expectations and failing to provide any clear alternatives.

As a result, the tribunal awarded the Claimant over $5.5 million in compensation plus interest. However, it rejected the Claimant’s claim regarding full protection and security, concluding that Mexico had not engaged in or encouraged adverse actions against the Claimant’s investment.

Key legal issues discussed

1. Where a non-national denial is based on political considerations that do not constitute a social emergency, does the state’s denial of a permit to a non-national to operate property for its intended use amount to expropriation of property?

Yes 

The tribunal ruled that Mexico’s refusal to renew Cytrar’s license amounted to an act of expropriation. Though "expropriation" was not explicitly defined in the Agreement, the tribunal interpreted it in light of international law, which includes not only direct government seizure of assets but also "indirect" or "creeping" expropriation. The latter occurs when government measures effectively deprive an investor of the use, value, or economic benefits of its investment.

The tribunal found that the INE Resolution was politically motivated rather than based on legitimate environmental concerns. The political considerations leading to the refusal did not amount to a social emergency warranting such deprivation of property rights. The Resolution's impact, rendering the Claimant’s investment worthless, was disproportionate to any alleged public interest. As a result, Mexico’s actions were deemed an expropriation, violating the Agreement and international law.

2. In a situation whereby a state's conduct frustrates an investor’s fair expectations, deprives the investor of clear guidelines as to the investor’s required actions, and fails to provide the investor with any alternatives other than a complete loss of its investment, has such a state violated its duty of fair and equitable treatment?

Yes 

The tribunal held that Mexico breached its obligation to accord the Claimant fair and equitable treatment under the Agreement. Fair and equitable treatment, as understood in international investment law, requires states to provide investors with a stable and predictable legal and regulatory environment. Investors must be able to rely on legal assurances and expectations when making their investment decisions.

Mexico's actions frustrated the Claimant’s legitimate expectations. The Claimant had expected the renewal of Cytrar’s license based on past renewals and the continued operation of the Landfill. However, the INE’s sudden refusal, without offering any clear guidelines, deprived the Claimant of any means to comply with regulatory requirements. Moreover, Mexico failed to provide Cytrar with any alternative measures, such as relocation, compensation, or transitional assistance. The tribunal concluded that Mexico’s conduct violated its duty under the Agreement and international law, as it led to severe financial and reputational damage for the Claimant.

3. Where a state neither participates in nor promotes adverse actions against an investor and reacts to such adverse actions reasonably in accordance with the parameters inherent in a democratic state, has such a state contravened a guarantee of full protection and security?

No 

The Claimant argued that Mexican authorities failed to protect Cytrar from community hostility, which included protests and other adverse actions against the Landfill and its personnel. The Claimant alleged that this constituted a failure to provide "full protection and security," a standard often associated with physical protection from harm.

However, the tribunal found no sufficient evidence to conclude that Mexican authorities actively participated in or encouraged these adverse actions. Nor was there proof that Mexico failed to respond in a manner consistent with democratic governance. While the tribunal acknowledged the challenges faced by Cytrar, it determined that Mexico had not breached its obligation under the Agreement to ensure full protection and security.

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Introduction

Statutory interpretation is an imperative judicial process that involves deciphering and applying legislation, ensuring it aligns with the legislative intent. Legislations often have inherent complexities of language, which leads to an ambiguous nature of the statutes. This makes the interpretation of laws crucial for the judiciary. The aim is not only to uphold the parliament's sovereignty but also to ensure justice is balanced through textual reading and sensible application of the legislation.

This balance requires the judges to navigate between strictly literal interpretation and sensible discretionary consideration that compliments the contemporary reality. This article explores different principles of statutory interpretation and insights into how judges reconcile literal interpretation with judicial reasoning to achieve the necessary outcomes in complex legal scenarios.

Literal Rule

Literal Rule, also known as the grammatical rule, means that the legislation needs to be interpreted strictly, and the scope of the words should not go beyond their ordinary meaning.[1] The words are to be understood in a literal manner, staying within the ambit of its natural meaning unless the status suggests otherwise. The rationale behind the Literal rule is to respect the legislature as it is and ensure that the intent of the lawmakers is upheld.

In Duport Steel v. Sirs[2], Lord Diplock stated “Where the meaning of the statutory words is plain and unambiguous it is not then for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences for doing so would be inexpedient, or even unjust or immoral.”[3]

Advantage of Literal rule

• There is no scope for the judges to form their own opinion which can interfere with the case.
• Separation of power is upheld.
• There is certainty and precision.

In the case R v. Harris[4], the defendant bit off the nose of the victim. The statute criminalized ‘stabbing, cutting or wounding’. The court held that biting does not fall under cutting, stabbing and wounding, and teeth do not constitute as a weapon. The judges ruled by the literal meaning and Harris was considered not guilty under the statute despite the fact he caused harm.[5]

The disadvantage of the rule is that there can be no disagreements over the literal meaning, which can create chaos and loopholes. Respecting the separation of powers is crucial, however, following precise language can lead to absurdities. 

Golden Rule

Lord Wensleydale defines the rule as “The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no farther.”[6]

The golden rule is a modification of the literal rule. It allows the judges to deviate from the literal meaning of the words to avoid preposterous outcomes. This rule provides flexibility to the judges so they can make a decision that is balanced with the law and situation. There are two approaches to this rule. If a word has multiple meanings, the court may choose an interpretation that makes the most sense. If a word has a single meaning, the court can alter it to suit the case.

In the case of R v. Allen[7], the defendant was charged with bigamy under the Offences Against Persons Act 186. The statute states, ‘Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony, and being convicted thereof shall be liable…’[8] Under the literal rule, bigamy would be impossible, as civil courts do recognise second marriages (unless the first is legally dissolved), and the literal interpretation would be unenforceable. The courts adopted a broader approach where “marry” meant the ceremony itself, this ensured the law was followed through by retaining its purpose.

Mischief Rule

The mischief rule originates from Haydon’s Case (1584)[9] and gives judges the most discretion of all. Haydon’s case laid out four principles to be followed when applying this rule:

• What was the common law before the act was implemented?
• What was the mischief and defect for which the common law did not provide?
• What remedy has the parliament sought for that mischief?
• The judge has to make such a decision that suppresses the mischief and advances the remedy.

The rule prioritizes the legislative intent over the literal words. It allows the courts to enforce laws effectively, particularly when there is a loophole that threatens the intent of the law. In the case of Smith v. Hughes[10], the defendants were charged under the Street Offences Act (1959) for soliciting in a public place. The prostitutes who were charged were soliciting from the windows, which is technically not a public place. The mischief rule was applied to interpret the law as soliciting in public was intended as an offence. The court concluded by following the mischief rule.

Purposive Approach

The purposive approach interprets statutes regarding the overall intent by seeking the broader purpose of the law. There is a distinct difference between the purposive approach and the mischief rule. The former is broader and more proactive, while the latter is narrow and fixates on a specific issue. The purposive approach is particularly useful in cases where the literal interpretation renders the law ineffective. This approach requires a court to look at the purpose of the statute and the intent behind it. This specific type of interpretation is extremely important to Canadian constitutional law and the Supreme Court of Canada has held that the proper approach to give meaning to the Charter rights is through the purposive approach.[11]

In R v. Secretary of State for Health, ex parte Quintavalle[12], the court had to interpret the term “embryo”. Under the Fertilization and Embryology Act 1990 (UK), the drafters of the statute did not foresee scientific advancements in creating embryos through cloning. The court used the purposive approach and ruled that the definition of “embryo” should include scientific developments, ensuring the law remains valid and effective.[13] This approach allows the judiciaries to adapt to modern advancements and contemporary realities. 

Conclusion

Statutory Interpretation bridges the gap between dynamic purposivism and rigid interpretation of legislation. The above-mentioned rules are the four primary types of interpretations, where literal and golden rules protect the parliamentary intent, and the other two adapt the laws to the constantly evolving realities. Ultimately, the interpretive tools empower the court to uphold the word of the law as well as the intent of the law as one does not exist without the other. In conclusion, a careful balance of judicial creativity and legislative intent ensures justice remains principled and fair.

[1] Ayali Natua and Debarjun Dey, ‘Literal Rule of Interpretation and Its Relevance in Today’s Context’ (White Black Legal) https://www.whiteblacklegal.co.in/details/literal-rule-of-interpretation-and-its-relevance-in-today-s-context-by—ayali-natua-imam-jamal-siddiqui-debarjun-dey accessed 20th  February 2025

[2] [1980] 1 WLR 142.

[3] Pinar Okur, The Rules of Statutory Interpretation (PhD thesis, Leiden University, June 2021) https://www.researchgate.net/publication/352152336_42_The_rules_of_statutory_interpretation#:~:text=Lord%20Diplock%20once%20noted%3A%20%22Where,or%20even%20unjust%20or%20immoral.%22 accessed 20^th  February 2025

[4] (1836) 7 C & P 446.

[5] Association of Chartered Certified Accountants (ACCA), F4 Corporate and Business Law (Singapore) Exam Paper (June 2014) https://www.accaglobal.com/content/dam/acca/global/PDF-students/acca/f4/exampapers/sgp/F4SGP-2014-jun-a.pdf accessed 20th  February 2025.

[6] Open University, 'The Golden Rule' https://www.open.edu/openlearn/mod/oucontent/view.php?id=68342&section=3.2 accessed 20^th February 2025.

[7] R v Allen (1872) LR 1 CCR 367 https://www.e-lawresources.co.uk/r-v-allen-1872  accessed 20th February 2025.

[8] Offences Against the Person Act 1861, s 57 https://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/57 accessed 20th  February 2025.

[9] Critical Analysis of the Literal, Golden, and Mischief Rules (LawTeacher, 31 August 2021) https://www.lawteacher.net/free-law-essays/administrative-law/critical-analysis-of-the-literal-golden-and-mischief-rule-law-essay.php accessed 20 February 2025.

[10] Smith v Hughes (1870) LR 6 QB 597 https://www.lawteacher.net/cases/smith-v-hughes.php accessed 20 February 2025

[11] R v Big M Drug Mart Ltd [1985] 1 SCR 295 https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/43/index.do accessed 20 February 2025

[12] Regina v Secretary of State for Health (Respondent) ex parte Quintavalle (on behalf of Pro-Life Alliance) (Appellant) [2003] UKHL 13 https://publications.parliament.uk/pa/ld200203/ldjudgmt/jd030313/quinta-1.htm accessed 20 February 2025

[13] Spencer Millis, ‘Purposive Approach to Charter Interpretation’ (Constitutional Studies, 27 July 2020) https://www.constitutionalstudies.ca/2020/07/purposive-approach-to-charter-interpretation/ accessed 20 February 2025

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Introduction

Legal systems around the world have been structured in a transactional manner. While the laws are different regionally, the justice model is similar.  Rwanda aimed to change this very structure by introducing Transitional Justice mechanisms for delivering justice. Transitional justice is a framework that addresses the aftermath of extensive human rights violations by introducing reconciliation and societal healing in the community. This reconciliation approach encompasses several mechanisms to address past abuses, such as truth commissions, reparations programs, and judicial processes.

Transitional Justice seeks to restore trust in political and legal institutions, which is significant in a post-conflict setting. Rwanda adopted it as a legal mechanism to serve as a tool for society grappling with the aftermath of genocide. Fostering accountability is challenging and demanding, especially for a country trying to rebuild itself. Effective transitional justice mechanisms can facilitate societal cohesion by providing a platform for victims to voice their experiences and allowing the perpetrators to come forward and take responsibility for their actions.

Rwanda established Gacaca courts to address the genocide that occurred in 1994. These courts were community-based and aimed to promote reconciliation among the local population. Genocide is rooted in the belief that certain communities are deemed undesirable, which leads to the notion that their absence would enhance the society and its wellbeing. Rwanda’s use of transitional justice sought to redefine this narrative by emphasizing the importance of inclusivity and reconciliation. This reflects a commitment to ensure that every member of the community contributes positively to the nation’s future.

Historical Background

In Rwanda, two socially constructed ethnic communities have a complicated history. Hutu (majority) and Tutsi (minority) are two separate ethnic groups, both speak the same language and practice the same religion and culture. The Belgian colonization led to a division between the two as they favored the Tutsi and labelled the Tutsi elite as racially superior as they governed the precolonial kingdom.[1] In 1959, unexpectedly, the Belgians sided with the Hutu majority and condoned anti-Tutsi violence that drove thousands of Tutsi into exile.[2] This led to the Hutu majority regime institutionalizing anti-Tutsi discrimination post-independence and conducting massacres against the Tutsi people.

The Rwandan genocide occurred from April 1994 to July 1994[3], resulting in the death of an estimated one million individuals, the majority being from the Tutsi ethnic group. It is remembered as one of the most horrific events in modern history. The assassination of President Habyarimana on April 6^th, 1994, acted as a catalyst for violence unleashed on the Tutsi civilians by the Hutu extremists.[4]

The scale of atrocities was widespread, ranging from mass murders to systematic rapes.[5] The sheer number of offences was overwhelming for the conventional judicial system. The existing legal framework was not equipped to address the urgent need for justice. Rwanda responded to this crisis by implementing Gacaca courts. The Gacaca court system aimed to restore some semblance of stability in the country by encouraging dialogue and healing.

Gacaca Courts: Structure and Functions

Rwanda Organic Law of 2001 established Gacaca Courts as a response to the Judiciary being burdened and overwhelmed following the 1994 genocide. Gacaca courts were designed to operate as a quasi-judicial body, aiming to create an efficient and community-oriented system. The traditional justice system, also referred to as the ‘punitive justice system’, has three main steps. While the procedural part is extensive, the simplified understanding is of a (i) legal system where the (ii) blame is established, and (iii) punishment is delivered. Gacaca courts go further than just punishment.[6] The Gacaca courts used transitional justice mechanisms to move away from an adversarial process to a more collaborative structure.

It encouraged community support to unpack the harm and repair the damage for the current and future generations to come. History is a central part of justice. If there has been no accountability and effort made to mend the past damages, there is always a probability of economic and political instability in the country. Therefore, to prevent this possibility, Rwanda introduced this radical change of restorative justice.[7] Once a week, the community would get together, and there would be a formal hearing. Nine judges were chosen by the community, and three had to be women in an attempt to close the gender inequality gap. The distinctive feature was that the prisoners could wait for a regular trial or come forward in the Gacaca courts in front of the community.

Upon hearing the prisoners, the judges would decide if the prisoner would be sent to jail or back to society. There were around 12000 Gacaca courts, and they tried over 1.9 million cases.[8] Restorative justice is a process, unlike the classic justice system. Offenders who were allowed back into the community had to first reinvent themselves and then reenter. It was not about payback, as mass murder and sexual violence cannot be fixed. It was more of an effort towards community healing.

Gacaca saw value in every individual. If the offenders had to reenter society, they first had to work towards it. They used to work in agriculture, rebuilding homes and roads and any other community service needed. The punitive justice model is a transactionally dominant system. Gacaca introduced a transformative system that prioritized community over punishment.[9] Letting go of the traditional fair justice process can be intimidating as it is black and white. However, Rwanda managed to introduce a community-oriented process to break the cycle of violence.

Gacaca community courts ended in 2012, and the government introduced mediation tribunals. This made mediation a powerful tool, as any individual who wishes to proceed with litigation has to go through mediation. The tribunals resolve the majority of the cases, decreasing the judiciary's burden. Ultimately, the Gacaca courts represented an attempt towards conflict resolution through unique restorative methods.

Legal Criticism

Gacaca courts, while innovative and unique, faced significant legal and human rights criticism that raised concerns about their adherence to due process. The major drawback was fair representation for the defendants, which violated their right to a fair trial. Additionally, the judges, also known as inyangamugayo, had minimal formal judicial training. This led to criticism regarding their ability to try impartially and effectively.

Victim and witness protection also faced serious challenges within the Gacaca system. Many feared intimidation from their perpetrators and supporters, which deterred them from taking any part in the judicial process and sharing their testimonies. There was an atmosphere of fear that allegedly compromised the integrity of truth-telling and the pursuit of justice.

Moreover, gender bias in handling sexually violent crimes during Gacaca proceedings was notable. Despite the attempts at restorative justice, many survivors were left without justice or recognition. The Gacaca courts chose to promote reconciliation which led to the question of whether Rwanda was able to achieve true justice.

However, true justice is a subjective notion. Community healing can only be achieved if every individual in the community receives justice and recognition for their suffering. Alternatively, if the state had decided to move forward with the traditional judicial method, 1.9 million cases would have taken double the time and, if unsatisfied, numerous appeals.

The Gacaca courts have left a mixed legacy, marked by successes and failures that later significantly impacted the country’s legal system. On the one hand, Gacaca facilitated community participation in the justice process. This fostered a sense of symbolic justice and promoted truth-telling as survivors confronted perpetrators within the community. However, the Gacaca courts also reinforced impunity for certain crimes, which limited its overall effectiveness in achieving comprehensive justice. Nonetheless, their limitations highlighted the challenges of implementing a justice system that is both effective and equitable in the aftermath of such profound trauma.

Conclusion

The Gacaca courts in Rwanda present a complex case study regarding transitional justice. Fostering community participation and facilitating truth-telling has significant shortcomings. Critics argue that the courts lack fairness, which undermines the legitimacy of justice. Whether restorative and retributive justice was fully achieved or not is open to interpretation and depends on how one views it.

For a country that is stable and developed, the concept of justice is straightforward: there is a designated authority and a rule book. States that have barely survived colonialism find it hard to adapt to traditional methods. Transitional justice as a legal system is relatively new. It took decades for the world to become accustomed to judiciary and law and order. Democratic countries have a rigid yet flexible system so that amendments can be made when needed. Transitional justice is just another method that is molding according to the needs of modern legal systems.

The Gacaca courts demonstrate that community involvement can be a powerful tool. In a more modern system, the community is involved with media trials and societal support through the press and social media. Gacaca attempted to adapt the concept of societal healing by showcasing trials transparently to the public. This system has influenced global practices by illustrating the benefits and pitfalls of community-based judicial systems.

[1] Center for Holocaust and Genocide Studies, ‘Rwanda’ https://cla.umn.edu/chgs/holocaust-genocide-education/resource-guides/rwanda accessed 22 February 2025

[2] Lars Waldorf, Transitional Justice and DDR: The Case of Rwanda (International Center for Transitional Justice, June 2009) https://www.ictj.org/sites/default/files/ICTJ-DDR-Rwanda-CaseStudy-2009-English.pdf accessed 22 February 2025

[3] United Nations, ‘Rwanda: A Brief History of the Country’ https://www.un.org/en/preventgenocide/rwanda/historical-background.shtml accessed 22 February 2025

[4] Jeremy Maron, ‘What Led to the Genocide Against the Tutsi in Rwanda? First-Hand Accounts from Survivors’ (26 June 2019) https://humanrights.ca/story/what-led-genocide-against-tutsi-rwanda accessed 22 February 2025

[5] Scott Straus, ‘The Rwandan Genocide in Context’ in Ned Blackhawk and others (eds), The Cambridge World History of Genocide (online, Cambridge University Press 2023) https://www.cambridge.org/core/books/abs/cambridge-world-history-of-genocide/rwandan-genocide-in-context/B9B457E66E56E9CE086DD311159726AF accessed 22 February 2025

[6] ‘The Contribution of the Gacaca Jurisdictions to Resolving Cases Arising from the Genocide: Contributions, Limitations and Expectations of the Post-Gacaca Phase’ https://cdn.penalreform.org/wp-content/uploads/2013/06/Gacaca_final_2010_en.pdf  accessed 22nd February

[7] Minister of Justice/Attorney General, Case of Gacaca Courts (20 February 2022) https://www.minijust.gov.rw/fileadmin/SPEECHES-2019/20.02.20_TRANSITIONAL_JUSTICE_ppt_for_students.pdf accessed 22nd February 2025

[8] Fanie du Toit, Reconciliation and Transitional Justice: The Case of Rwanda’s Gacaca Courts https://africaportal.org/wp-content/uploads/2023/05/IJR_OP_2_proof_2.pdf accessed 22nd February 2025

[9] Human Rights Watch, The Rwandan Genocide: How It Was Prepared (April 2006) https://www.hrw.org/legacy/backgrounder/africa/rwanda0406/index.htm accessed 22nd February 2025

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Introduction

International investment law has been largely influenced by globalization, intertwining economic integration and legal regulations on cross-border investments. This symbiotic relationship progressed throughout history to establish modern international investment frameworks to facilitate and control such capital flows across countries.

Historical Context of Globalization and Investment Law

Globalization has its roots in the expansion of European interests and the capital export during the colonial era. Cross-border investments began to emerge, which required a legal framework for the protection of foreign assets.

Whilst growing international trade fostered the evolution of such investment relationships, the complexity of these relationships prompted the negotiation and adoption of bilateral and multilateral treaties in order to safeguard investors' rights. The development of these legal instruments’ bears testimony to the intertwined nature of the paths followed by globalization and international investment law, in which developments in one area have in turn inspired and propounded changes in the other.[1]

Rise of Bilateral Investment Treaties (BITs)

In the mid-20th century, BITs emerged as a bulwark of the modern system of international investment law. Such treaties provide a variety of legal protections to foreign investors, including guarantees against expropriation-related risks and assure them with a due process for dispute resolution.

The rise in BITs was a determined response ushered in by the increase in FDI from globalization. Nations were entering into these treaties in recognition that legal certainty and protection were essential inducements to attract foreign investment. This legal infrastructure thus created investment patterns and facilitated deeper linkages between economies; this exhibits the symbiotic character of both globalization and investment law.[2]

Impact of Globalization on Foreign Direct Investment (FDI)

• Increase in FDI Flows: The overall FDI flows have risen, due to globalization, as companies even contemplate new markets and opportunities for investment in a foreign country as a strategy to penetrate their home markets.[3]
• Development of Legal Frameworks: Investment laws define the needs of an international financial market.[4]
• Basic Legal Aspects: Investment laws now address taxation, intellectual property rights, and dispute resolution in order to instil legal certainty.[5]
• Economic Integration: The rise of FDI showcases just how necessary a robust legal structure is to bolster an embryonic global economy.[6]
• Functionality of Legal Systems: The completeness and constant progress of international investment legislation are needed in this dynamic, global economic environment.[7]

Challenges Posed by Globalization to Investment Law

• Market Flux: Economic integration means that market conditions can shift dramatically overnight, thereby causing uncertainty on the part of investors.[8]
• Regulatory Divergence: Differences among countries and regions on the different types of regulatory and legal regimes that govern investments create challenges for investors on compliance.[9]
• Inhibition by Standards: Diversities in legal frameworks may dissuade investment in certain regions, thereby hindering harmonization.[10]
• Heightened Competition: Emerging markets are most affected by increased competition from giant multinational companies putting pressure on local companies.[11]
• Need for Legal Adaptability: The need for constant reform of investment legislation is enshrined within the obligation to keep it relevant and protective of the interests of both investors and host states.[12] 

Role of International Organizations

International organizations have indeed contributed really significantly to investment law, within the frame of globalization. The ICSID originally created the party-advocacy to be settled here. However, the court itself acts as a neutral ground that makes the overall right operation possible regarding the rule of law. They are there to standardize legal practice and dialogue between nations. Their very involvement guarantees fairness, transparency, and effectiveness in international investment law.[13] 

Emerging Trends in International Investment Law

Several trends that have emerged as compelling characteristics of contemporary international investment law today are borne from the global context. It sees the growing importance of sustainability, and therefore regulations are subjected to ESG criteria.[14] Emerging trends reflect a realization that investments affect climate change and other global social inequalities. The modern advancement of technology has been such that a qualitative change has been brought into the whole question of investment law, especially on issues pertaining to data protection and cybersecurity.[15] Globalization and legal systems need to incorporate more changes to deal with the challenges of intangible assets[16] and cross-border data flows.

Case Studies on Influence of Globalization on Investment Law

Philip Morris v. Uruguay[17]

Philip Morris Corporation-a multi-national cigarette manufacturer-brought an arbitration case before Uruguay in terms of the Switzerland-Uruguay Bilateral Trade Investment Treaty. The company argued that Uruguay had by putting regulations to curb smoking, including graphic health warnings on cigarette packaging, diminished the value of its brand and market value.

Judgment: The International Centre for the Settlement of Investment Disputes, in particular, judged that Uruguay was in the right, emphasizing that sovereign states have the right to regulate in public interest, even when it might have an effect on foreign investment.

Importance:

• State Sovereignty vs. Investor Rights: Recognizing that governments could regulate in the public interest (health, environment) even against foreign investment treaties interconnected these two principles: still, investors must have said grounds to remedy grievances. 
• Setting Precedent for Public Health Policies: The ruling paved ways for implementers in other countries in instituting similar pieces of legislation aimed at limiting tobacco exposure or dealing with product labelling. 
• Some Restraints on ISDS: The case stressed that ISDS should be utilized to not impede on legitimate public policies. 

Vodafone v. India[18]

Vodafone, a telecom company based in the UK, since acquiring Hutchison Essar in 2007, acted against the Indian state on the basis of retrospective taxation laws amended in 2012, claiming billions as a capital gain tax from Vodafone. The company initiated arbitration on the grounds of the India-Netherlands BIT, contending that the retrospective taxation violated the provisions of fair and equitable treatment.

Judgment: The Permanent Court of Arbitration affirmed the ruling of Vodafone that the retrospective assessment demand against it by the Indian government constituted a violation of its obligations under the investment treaty.

Importance:

• Protection Against Retrospective Taxation: This emphasized the protection against the retrospective tax law that no government can make other than by following the law. 
• Impact on India's Investment Climate: However, after the judgment took place, the Indian government repealed the retrospective tax following the confidence-building measures for investors. 
• Re-evaluating BITs: The case forced India into the process of renegotiating some of its BITs after taking on a more state-oriented position.  

Recent Developments on Influence of Globalization on Investment Law

Dubai International Financial Centre (DIFC): A Model for Global Investment Law[19]

Established in 2004, the Dubai International Financial Centre (DIFC) is a special economic zone in the UAE whose legal and regulatory advisors are based on internationally accepted standards. DIFC has independent common law and courts away from any area of the UAE legal system and attracts many multinational corporations and foreign investors.

 Relevance to Globalization and Investment Law:

• Harmonization of Laws: DIIFC aligns with global good practices such that it makes it easy for international investors to operate in Dubai.
• Dispute Settlement: DIFC courts provide a neutral forum for dispute resolution, which gives investors’ confidence.
• Economic Expansion: Implementation of global investment laws has established Dubai into a financial center, exemplifying how globalization shapes investment laws.

NAFTA to USMCA: Evolution of Investment Law in North America[20]

The North American Free Trade Agreement (NAFTA) was revised to the United States-Mexico-Canada Agreement (USMCA) in 2020 updating the investment rules in North America. The changes implemented amend the dispute resolution mechanisms and tighten investor protections.

 Relevance to Globalization and Investment Law:

• Reforming Trade Laws: USMCA shows how global trade agreements have evolved to meet modern investment issues.
• Investor-State Dispute Settlement: The USMCA limits the ISDS provisions, which points to a global trend towards balancing the rights of investors with the sovereignty of the states.
• Increased Transparency: Stricter rules to abide provide better accountability in international investments.

Conclusion

With the evolution of globalization, so needs the legal determinations put in place to steer international investments. A lot is being done in affiliation with the forging of multilateral instruments that shall endeavour the harmonization of investment laws in abolishing complications engendered through bilateral treaties. This holistic approach reflects an understanding that sustainable economic growth requires legal systems that balance profit with the welfare of people and the planet.

[1] CAMBRIDGE UNIVERSITY PRESS, Origins of international investment law (Feb. 21, 2025, 9:45 PM), https://www.cambridge.org/core/books/abs/origins-of-international-investment-law/origins-of-international-investment-law/88FB1CD9F6F3FAE7CC3523C27F2EF0E5

[2]Karl Sauvant &Lisa E. Sachs, The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties and Investment Flows (Feb. 21, 2025, 10:45 PM), https://scholarship.law.columbia.edu/sustainable_investment_books/6/?utm

[3] FINANCIAL TIMES, The Emerging Winners in Asia Amid the Trade Wars (Feb. 21, 2025, 10:45 PM), https://www.ft.com/content/d93310b5-91eb-4d76-8450-c82627261338

[4] COLUMBIA CENTRE OF SUSTAINABLE DEVELOPMENT, Legal Frameworks & Foreign Investment (Feb. 21, 2025, 10:50 PM), https://ccsi.columbia.edu/sites/default/files/content/docs/Legal-Frameworks-and-Foreign-Investment-CCSI-2019.pdf

[5] NORTON ROSE FULBRIGHT, Global rules on foreign direct investment (FDI) (Feb. 21, 2025, 10:55 PM), https://www.nortonrosefulbright.com/en/knowledge/publications/cb7bbd10/global-rules-on-foreign-direct-investment

[6] OECD, Measuring Foreign Direct Investment (Feb. 21, 2025, 11:15 PM), https://www.oecd.org/en/topics/foreign-direct-investment-fdi.html

[7] OECD LEGAL INSTRUMENTS, Recommendation of the Council on Foreign Direct Investment Qualities for Sustainable Development (Feb. 21, 2025, 11:30 PM), https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0476

[8] BOSTON UNIVERSITY SCHOOL OF LAW, Examining Global Investment and Trade Systems (Feb. 21, 2025, 11:45 PM), https://www.bu.edu/law/record/articles/2025/weijia-rao/

[9] Emergent Challenges in International Investment Law: Investing in ICT, https://www.ippapublicpolicy.org/file/paper/5942aef83976d.pdf (last visited Feb, 22, 2025).

[10] Alibha Pattanaik, Impact of Globalization on National and International Investment Laws (Feb. 21, 2025, 12:00 PM), https://ijirl.com/wp-content/uploads/2021/12/IMPACT-OF-GLOBALIZATION-ON-NATIONAL-AND-INTERNATIONAL-INVESTMENT-LAWS.pdf

[11] INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW, Resisting Economic Globalization. Critical Theory and International Investment Law (Feb. 21, 2025, 12:00 PM), https://academic.oup.com/icon/article/12/3/827/763789

[12] Alvaro Santos, International Investment Law in the Shadow of Populism: Between Redomestication and Liberalism Re‐Embedded (Feb. 22, 2025, 12:45 PM), https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=3528&context=facpub

[13] ICSID, About ICSID (Feb. 22, 2025, 12:50 PM), https://icsid.worldbank.org/about

[14]  Kate Abnett, EU Countries Split Over Whether to Delay Green Reporting Rules (Feb. 22, 2025, 01:00 PM), https://www.reuters.com/sustainability/eu-countries-split-over-whether-delay-green-reporting-rules-2025-02-19/

[15] John Bandler, Data Law: A Part of Cyberlaw We All Should Know About (Feb. 22, 2025, 01:00 PM), https://www.reuters.com/legal/legalindustry/data-law-part-cyberlaw-we-all-should-know-about-2025-02-19/

[16] CAMBRIDGE UNIVERSITY PRESS, The Impact of Digitalization on International Investment Law: Are Investment Treaties Analogue or Digital? (Feb. 22, 2025, 02:00 PM), https://www.cambridge.org/core/journals/german-law-journal/article/impact-of-digitalization-on-international-investment-law-are-investment-treaties-analogue-or-digital/EC552536BFEF0E8AEF3DF250B180E158

[17] Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7

[18] Vodafone International Holdings BV v. Government of India [I], PCA Case No. 2016-35

[19] DIFC, Laws and Regulations in Dubai International Financial Centre (DIFC) (Feb. 22, 2025, 03:00 PM), https://www.difc.ae/business/laws-and-regulations

[20] Jeffrey Horswill, Harout Samra & Carlos Matsui, Replacing NAFTA: What the USMCA means for the future of North American trade and investment – a Q&A (Feb. 22, 2025, 04:00 PM), https://www.dlapiper.com/es-pr/insights/publications/2020/10/replacing-nafta-what-the-usmca-means-for-the-future

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Introduction

In the evolving landscape of criminal investigation, the reliance on scientific methods has significantly increased, offering new avenues for solving complex cases. Among these innovative techniques is Brain Electrical Oscillation Signature Profiling (BEOS), developed by Dr. C.R. Mukundan in 2003. This technique identifies the presence of experiential knowledge in individuals suspected of committing crimes, distinguishing between recognition and remembrance.

It measures the remembrance of experiential knowledge or autobiographical information, a signature evoked by specific probes designed to retrieve personal experiences. As forensic science continues to evolve, BEOS stands out as a non-invasive neuroscientific tool that does not rely on verbal responses or physical evidence but instead detects electrical brain activity linked to past experiences. Unlike conventional polygraph tests, which measure physiological responses to questions, BEOS aims to identify whether an individual has firsthand knowledge of a crime based on memory traces. This distinction makes it particularly significant in cases where direct evidence is scarce, offering investigators a supplementary method to assess a suspect’s involvement. However, its scientific validity, ethical considerations, and admissibility in courts remain topics of debate within legal and forensic circles.

Understanding the Legal Framework

India’s legal system, rooted in the Indian Evidence Act of 1872, emphasizes the use of oral and documentary evidence in judicial proceedings. Section 45 of the Act^[1] permits the court to rely on the opinions of experts when forming judgments on matters requiring specialized knowledge, such as science or art. Additionally, Section 293 of the Code of Criminal Procedure (CrPC) recognizes the reports of government scientific experts as admissible evidence, empowering courts to summon such experts when necessary^[2]. BEOS fits into this legal framework, offering courts an additional layer of corroborative evidence in criminal cases.

The acceptance of BEOS as evidence is contingent upon its integration with other forms of admissible evidence. Courts have emphasized that expert opinions, including those derived from BEOS tests, must be supplemented by direct or circumstantial evidence to ensure a comprehensive evaluation of cases. This requirement aligns with the broader principle of ensuring fair trials while incorporating scientific advancements into the justice system.

Evidentiary value of BEOS

BEOS has been employed in numerous criminal cases across India, with courts evaluating its results as corroborative evidence. Notably, BEOS does not serve as standalone proof for convictions but strengthens circumstantial and direct evidence. Courts have consistently acknowledged its scientific foundation, provided the results align with other evidence presented during trials.

In State of Maharashtra v. Aditi Sharma and Pravin Khandelwal^[3], a young MBA student was accused of poisoning her ex-boyfriend with arsenic-laced ‘prasad.’ The investigation revealed that the accused had a motive rooted in a prior relationship and subsequent secret marriage to another individual. BEOS test results were positive, corroborated by a polygraph test. The court considered these scientific findings as one of many links in the chain of circumstantial evidence, citing Section 45 of the Indian Evidence Act to accept the expert’s testimony.

Similarly, in State of Maharashtra v. Ravindra Controllu^[4], the murder of a daily wage laborer by his employer showcased another application of BEOS. The suspect was accused of failing to pay wages and subsequently murdering the victim. The BEOS results were positive and supported by other evidence, leading the court to accept them as corroborative. However, the court reiterated that BEOS findings must corroborate other forms of evidence to establish guilt conclusively.

Another notable case, State of Maharashtra v. Shrimant Yede and Vijay Yede^[5], involved the murder of a family of five, including a woman and children. BEOS findings played a crucial role in corroborating confessional statements and other circumstantial evidence. The court emphasized that while BEOS results alone were insufficient for conviction, they provided valuable corroboration to the prosecution’s case.

The serial murders of street dwellers in Mumbai, documented in State of Maharashtra v. Anil @ Amin Bhoi^[6], further demonstrated the dual utility and limitations of BEOS. In one instance, the suspect’s BEOS results were negative, and the court concluded that the test did not serve its intended purpose. However, in another related case, positive BEOS results were accepted alongside witness testimonies as corroborative evidence. This highlights the nuanced role of BEOS, emphasizing the necessity of corroborative support for scientific findings.

The technique’s utility was evident in the sensitive case of State of Uttar Pradesh v. Surendra Koli^[7], involving serial murders of women and children in Nithari. Two suspects were arrested after skeletal remains were discovered near their residence. BEOS results for one suspect were positive, corroborated by confessional statements and physical evidence. The court accepted the findings as part of a comprehensive evidentiary chain, although it acquitted the second suspect due to a lack of corroboration. This case underscores the importance of integrating BEOS results with substantive evidence to ensure justice.

Challenges and Controversies

Despite its growing use, BEOS has faced scrutiny regarding its scientific credibility and ethical implications. Critics argue that the technique may border on testimonial compulsion, potentially violating Article 20(3) of the Indian Constitution, which protects individuals from self-incrimination. However, courts have countered this by citing precedents such as Ramchandra Ram Reddy v. State of Maharashtra^[8], where scientific tests not involving verbal admissions were deemed constitutional.

Ethical debates surrounding BEOS also extend to its methodology. The test relies on the premise that individuals possess distinct experiential knowledge of crimes they have committed. Critics question whether this approach accounts for variations in memory, psychological states, and external influences. The possibility of false positives or negatives further complicates its application, necessitating rigorous standards for administering and interpreting BEOS tests.

The legal system’s cautious approach was evident in State of Maharashtra v. Arjun s/o Laxman Sayam^[9], a case involving the murder of an entire family. Each family member was murdered on different dates and at different locations. BEOS tests linked the suspect to the crimes through experiential knowledge. The court accepted the findings as corroborative evidence while emphasizing that they were not standalone proof. This case exemplifies the judiciary’s commitment to balancing scientific advancements with legal safeguards, ensuring that evidence meets stringent criteria before influencing judicial outcomes.

Broader Implications

Despite its potential, the integration of BEOS into legal proceedings raises concerns regarding its reliability, the risk of self-incrimination, and the violation of fundamental rights. Critics argue that while the technique may provide valuable investigative leads, its admissibility as primary evidence remains contentious due to the lack of standardized validation and the possibility of false positives. Additionally, the absence of a clear legal framework governing its use necessitates judicial scrutiny to prevent misuse. As forensic science progresses, it is crucial to strike a balance between technological advancements and safeguarding individual rights, ensuring that BEOS is employed ethically and within constitutional boundaries.

BEOS has not only advanced forensic science but also redefined investigative methodologies. In cases like State of Gujarat v. Jivanbhai Rajabhai Bharwad^[10], where a businessman and his servant were implicated in serial murders, BEOS helped link suspects to crimes through experiential knowledge. The judiciary’s reliance on BEOS as corroborative evidence reflects a progressive approach to integrating scientific advancements into the legal system.

Moreover, BEOS’s potential extends beyond criminal investigations. Its ability to differentiate between recognition and remembrance offers insights into cognitive neuroscience, paving the way for interdisciplinary applications. Researchers are exploring its utility in studying memory-related disorders, enhancing its relevance across fields. However, these advancements must be accompanied by ethical considerations to ensure responsible use.

Expanding Judicial Perspectives

Judicial acceptance of BEOS highlights the evolving relationship between science and law. As forensic technologies continue to advance, courts must adapt to incorporate these innovations without compromising fairness or due process. The judiciary’s reliance on precedents, such as the State of H.P. v. Jai Lal^[11], reinforces the importance of testing scientific evidence for reliability and relevance before admitting it into legal proceedings. This approach ensures that forensic methodologies like BEOS contribute constructively to justice.

The role of expert witnesses is integral to the judicial acceptance of BEOS. Courts have emphasized the need for experts to provide clear, intelligible explanations of their findings, enabling judges and juries to assess the validity of scientific evidence. Training forensic professionals in effective communication is thus essential for bridging the gap between science and law.

While BEOS has been considered in several cases, its acceptance remains subject to judicial discretion and evolving legal standards. Courts must weigh its probative value against potential concerns regarding involuntary self-incrimination under Article 20(3) of the Indian Constitution and the right to privacy. In landmark cases like Selvi v. State of Karnataka^[12], the Supreme Court ruled against the compulsory use of narco-analysis, polygraph tests, and brain-mapping techniques without consent, setting a precedent that affects BEOS as well. This underscores the need for a legal framework that delineates the ethical and procedural boundaries of neuroscientific evidence, ensuring that its use aligns with constitutional protections and principles of natural justice.

Conclusion                  

Brain Electrical Oscillation Signature Profiling represents a significant leap in forensic investigation, offering a scientific means to link suspects to criminal activities through experiential knowledge. While its admissibility as evidence is contingent on corroboration with other evidence, BEOS has proven to be a valuable tool in complex cases. The Indian judiciary’s cautious yet affirmative approach to integrating BEOS underscores the importance of balancing scientific innovation with legal safeguards. As forensic technologies continue to evolve, their judicious application will remain pivotal in ensuring justice and upholding the rule of law.

Furthermore, the broader implications of BEOS extend beyond criminal justice, enriching cognitive neuroscience and interdisciplinary research. By addressing ethical and procedural challenges, BEOS can achieve its potential as a transformative tool in forensic science and beyond. The journey of BEOS exemplifies the dynamic interplay between science and society, emphasizing the need for ongoing dialogue to harness its benefits responsibly.

^[1] Section 39 to 45 of BSA, 2023.

^[2] Section 329 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) allows courts to use reports from government scientific experts as evidence in legal proceedings. The section also gives courts the power to summon these experts. 

^[3] S.C. No 508/07.

^[4] (2007) S.C. No. 698/2007.

^[5] (2007) S.C. No 638/2007.

^[6] (2007) S.C. No. 422/2007.

^[7] 2023: AHC:199091-DB.

^[8] ALL M.R. Cri L J 2004 Bom.1704.

^[9] (2007) S.C. No 130/2007.

^[10] (2006) 137/2006.

^[11] 1999 AIR SCW 3309.

^[12] (2010) 7 SCC 263.

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Introduction

Sustainable development principles are becoming the most hotly debated topic in international investment law, with a rising focus from policymakers, legal scholars and international organizations. As challenges such as climate change, environmental degradation and social inequalities are intensifying, people are increasingly realizing the need for investment agreements that are aligned with sustainability objectives. This article will assess the transition of international investment agreements (IIAs) through an examination of past developmental periods, with a particular focus on sustainability provisions and prospects for the future investment policies.

Evolution of International Investment Agreements

• Initially, IIAs were developed primarily to protect foreign investments and foreign investors from expropriation, to provide protections of fair and equitable treatment, and to permit the free transfer of funds across borders.[1]
• The agreements were designed to provide a stable and predictable investment environment and thereby encourage capital flow across borders into host countries.[2]
• However, traditional investor protection often neglected environmental and social impacts of investments, with critiques stating that IIAs favoured investor rights over sustainable development.[3]
• There has been a noticeable period of transition in recent years. More countries are beginning to see that investment protection should not have to clash with social wellbeing and environmental sustainability. This has forced an assessment of already existing and new IIAs merging sustainable development principles.[4]

Incorporation of Sustainability Provisions

The incorporation of sustainability into IIAs can take various forms.

• Explicit Sustainable Development Objectives: More recently, IIAs start off with preambles that reference the Sustainable Development Goals (SDGs). This cues up the agreement and sends a strong signal to the parties involved that they are really committing themselves to a balance between advancing investment on the one hand and environmental and social considerations on the other. For instance, UNCTAD notes that countries are increasingly aligning their investment agreements with sustainability objectives, a recognition echoed by ministers in G20.[5] 
• Assessment of Social Impact: Nowadays, provisions requiring investors to undertake environmental and social impact assessments on projects before they begin are becoming more popular. Such assessments help to pinpoint adverse impacts and curtail thereby from their beginnings in the investment phase. The rationalistic basis for incorporating such provisions to mobilize sustainable investment is discussed by the OECD.[6]
• Corporate Social Responsibility: Other IIAs contain clauses that call for or invite investors to respect international standards from the realm of Corporate Social Responsibility. Such are commitments to human rights, labour standards, and environmental protections. The IISD has developed guidance on how sustainable development can be articulated in international investment agreements, placing importance on its link with CSR provisions.[7]
• Right to Regulate: To ensure regulatory space, many modern IIAs expressly recognize the host state's right to take measures needed for public welfare purposes, including those of environment and public health purposes. Therefore, investment protections do not hinder the ability of any country in pursuit of sustainable development policies. The OECD notice on strengthening sustainable investment through IIAs explores the importance of ensuring a right to regulate in the sustainable development context.[8]
• Sustainable Development Chapters: Comprehensively, two parties may provide chapters toward the aim of sustainable development. Often, these establish frameworks for cooperation on environmental and social issues, ensuring an alignment of investment activities with sustainability goals. An analysis of the inclusion of those chapters can be found in the UNESCAP report on sustainable development provisions in investment treaties.[9]

Challenges and Criticisms

Though many advances have been made in integrating sustainable development into IIAs, challenges still remain:

• Balancing Investor Protection and Regulatory Autonomy: Striking the right two-pronged balance between banning any investors in a host state from interfering with states' reasonable legislative interests is still a controversial one. Rigorous investor protection may, on some occasions, fetter a state below the legitimate steps for social welfare.  Inadequate protections may lead to a disincentive for foreign investment. The Columbia Center on Sustainable Investment (CCSI) has argued for a rethinking of international investment agreements with acceptable investor protection in that such agreements may fail to benefit any investment directed to undermine the principles of sustainable development.[10]
• Enforceability of Sustainability Provisions: Whereas several IIAs now include clauses on sustainability, establishing their enforceability presents challenges. Dispute settlement mechanisms of a more traditional form may not be suited to deal with breaches of environmental or social commitments. The OECD Study considers the potential of IIAs to spur sustainable investment and examines the challenges of validity.[11]
• Policy Coherence: Establishing coherence between investment policy and other national policies, such as those on climate, labour, and public health, proves crucial. Misalignment drives conflicts that, in the long run, erode the quest for sustainable development. The Investment Policy Framework for Sustainable Development (IPFSD) from UNCTAD gives guidance on the formulation of investment policies that rightly align with the goals of sustainable development.[12]

Case Studies

Urbaser v. Argentina:[13]

• Urbaser, the Spanish investor, filed an arbitration complaint against Argentina under the Spain-Argentina bilateral investment treaty, arguing that Argentina violated BIT when taking measures during its financial crisis. In return, Argentina counterclaimed that Urbaser failed to fulfil an obligation of access to water and sanitation within the purview of sustainable development. The tribunal ruled that there was no direct obligation under Urbaser to ensure sustainable development, but that corporations cannot take sides that violate human rights.
• The case has established that international investors may have sustainability and human rights obligations. As for corporations, they cannot evade human rights responsibilities while executing the international investment agreements; this decision changed investment arbitration in a way by introducing the environmental and social aspects.

Bilcon v. Canada:[14]

• The United States-based company, Bilcon, was to establish a quarry and marine terminal in Nova Scotia, Canada. However, the Canadian authorities rejected this project on the basis of an environmental impact assessment that indicated a significant negative effect. Under NAFTA, Bilcon challenged the decision, citing unfair treatment. The tribunal held in favour of Bilcon, contending that the environmental assessment process was arbitrary and unfair. This ruling raised fears that international investment law could undermine the states' power to enforce environmental and sustainability policies.
• In the face of environmental laws and foreign investment protection, the tribunal gives a favour to investors when environmental measures hurt their investment. The function of sustainable development policies in the context of international investment law is questioned.

Recent Developments

Several ongoing developments illustrate the continuing trend of incorporating sustainability into investment agreements:

• The European Union's Green Deal: The European Green Deal proposes to make the EU's economies sustainable by transforming climate and environmental challenges into actual opportunities. Clear policies and consistent regulations for the creation of sustainable investment and innovative moves must be developed. A recent commentary states that maintaining the Green Deal is vital to restore Europe's competitiveness and effectively handle climate change. Sustainable development is at the core of the Green Deal, as it aims to align economic growth with environmental sustainability, while international investment law supports the flow of capital to green initiatives by establishing stable legal frameworks for cross-border investments in climate-resilient projects.[15]
• The Barretts' Debt-for-climate Swap: Barbados went cargo, in April 2023, with a pioneering "debt-for-climate" swap financed by guarantees from the European Investment Bank and Inter-American Development Bank. This initiative allows money to flow toward climate resilience projects, a tapestry of investment agreements providing an archetype for bolstering sustainable development. Reuters reported on this significant development with echoing reviews, noting its potential to spark a "day of hope" that can be replicated by other climate-vulnerable nations. This initiative highlights the role of sustainable development by redirecting financial resources toward climate resilience in vulnerable nations, with international investment law facilitating such innovative financing structures through agreements and guarantees from global financial institutions.[16]

Future of Sustainable Development and International Investment Law

Transition Towards Inclusionary Framework:[17]

• Future international investment law would focus on the merger of investor protection with global sustainability practices.
• This will evolve into a new and inclusive form.

Integrating ESG Principles:[18]

• Investment treaties would introduce more robust environmental, social, and governance principles.
• These will ensure that investments create good economic growth whilst addressing climate change and social inequality.

Protecting State's Rights to Regulate:[19]

• Future treaties would reinforce the importance of states' permissions to regulate for sustainable development.
• The balance will be arrived at between investor protection and countries carrying out measures to attain sustainability.

Multilateral Efforts and OECD Guidance:[20]

• Multilateral frameworks, for example, the OECD's work, guide the integration of sustainability into investment law.
• Such an approach will be instrumental in shaping relevant policies and legal frameworks to harmonize investment law with global sustainability objectives.

Conclusion

The aspiration for the integration of sustainability principles into international investment law is not merely a policy preference but a necessity owing to the serious and simultaneous global environmental and social challenges that are already here. Therefore, to use FDI for the sustainable development of the world, the international community needs to amend the IIAs, elaborating strong environmental and social provisions that moderate investor rights with the regulatory power of states and multilateral frameworks. Though there remain a lot of hurdles, the current evolution of investment treaties stands as a bright ray, heading towards global sustainability goals.

[1] UN TRADE & DEVELOPMENT, World Investment Report (Feb. 15, 2025, 9:45 PM), https://unctad.org/topic/investment/world-investment-report.

[2] OECD, Directorate for Financial and Enterprise Affairs (Feb. 15, 2025, 9:45 PM), https://www.oecd.org/en/about/directorates/directorate-for-financial-and-enterprise-affairs.html.

[3] International Institute for Environment and Development, https://www.iied.org/search?k=international%20investment%20agreements%20sustainable%20development (last visited Feb, 15, 2025).

[4] WORLD TRADE ORGANIZATION, Lessons Learned and Challenges Ahead for the WTO Trade Monitoring Exercise (Feb. 15, 2025, 9:45 PM), https://www.wto.org/english/res_e/reser_e/ersd202003_e.html.

[5] UN TRADE & DEVELOPMENT, World Investment Report (Feb. 15, 2025, 9:45 PM), https://unctad.org/topic/investment/world-investment-report.

[6] OECD, Strengthening Sustainable Investment through International Investment Agreements (Feb. 15, 2025, 9:45 PM), https://www.oecd.org/en/publications/strengthening-sustainable-investment-through-international-investment-agreements_a8729c98-en.html.

[7] J Anthony VanDuzer, Penelope Simons and Graham Mayeda, Integrating Sustainable Development into International Investment Agreements: A Guide for Developing Countries (Feb. 15, 2025, 10:45 PM), https://www.iisd.org/system/files/meterial/6th_annual_forum_commonwealth_guide.pdf.

[8] OECD, Strengthening Sustainable Investment through International Investment Agreements (Feb. 15, 2025, 9:45 PM), https://www.oecd.org/en/publications/strengthening-sustainable-investment-through-international-investment-agreements_a8729c98-en.html.

[9] SUSTAINABLE DEVELPOMENT GOALS, https://sdghelpdesk.unescap.org/e-library/sustainable-development-provisions-investment-treaties (last visited Feb, 16, 2025).

[10] COLUMBIA CENTRE OF SUSTAINABLE INVESTMENT, Aligning Investment Treaties with Sustainable Development (Feb. 16, 2025, 9:45 PM), https://ccsi.columbia.edu/content/aligning-investment-treaties-sustainable-development.

[11] OECD, Strengthening Sustainable Investment through International Investment Agreements (Feb. 15, 2025, 9:45 PM), https://www.oecd.org/en/publications/strengthening-sustainable-investment-through-international-investment-agreements_a8729c98-en.html.

[12] Investment Policy Framework for Sustainable Development, https://en.wikipedia.org/wiki/Investment_Policy_Framework_for_Sustainable_Development (last visited Feb, 17, 2025).

[13] Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26.

[14] Clayton and Bilcon of Delaware Inc. v. Government of Canada (PCA Case No. 2009-04).

[15] Adam George Carruthers, Case study for the European Green Deal (Feb. 17, 2025, 9:45 PM), https://krex.k-state.edu/server/api/core/bitstreams/c286c0f3-5662-4139-a461-522d18064311/content.

[16] REUTERS, Marc Jones, Barbados debt-for-climate swap nears as EIB, IDB finalise guarantees (Feb. 17, 2025, 11:45 PM), https://www.reuters.com/sustainability/sustainable-finance-reporting/barbados-debt-for-climate-swap-nears-eib-idb-finalise-guarantees-2024-07-25/.

.[17] OECD, Strengthening Sustainable Investment through International Investment Agreements (Feb. 15, 2025, 9:45 PM), https://www.oecd.org/en/publications/strengthening-sustainable-investment-through-international-investment-agreements_a8729c98-en.html.

[18] Aligning Investors with Sustainable Finance, https://d8g8t13e9vf2o.cloudfront.net/Uploads/q/b/f/aligninginvestorswithsustainablefinance_738858.pdf (last visited Feb, 17, 2025).

[19] OECD, Strengthening Sustainable Investment through International Investment Agreements (Feb. 15, 2025, 9:45 PM), https://www.oecd.org/en/publications/strengthening-sustainable-investment-through-international-investment-agreements_a8729c98-en.html.

[20] OECD, Sustainable investment, (Feb. 15, 2025, 9:45 PM), https://www.oecd.org/en/topics/sub-issues/sustainable-investment.html.

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The Supreme Court, while overturning the dismissal of two women judicial officers in Madhya Pradesh, has emphasized the need for a sensitive work environment for women in the judiciary. The ruling, delivered on February 28, 2025, underscores the importance of recognizing gender-specific challenges faced by women judicial officers.

Judgment Highlights

• The bench comprising Justice BV Nagarathna and Justice NK Singh observed that while gender should not be an excuse for poor performance, it is a significant factor that must be considered in judicial evaluations.
• One of the officers faced multiple hardships during her probation period, including a miscarriage, the COVID-19 infection, and her brother’s blood cancer diagnosis. Despite these challenges, her Annual Confidential Report (ACR) was downgraded without due consideration.
• The Court ruled that such circumstances must be acknowledged while assessing performance, as failing to do so disregards the physical and emotional toll on women officers.

Need for a Gender-Sensitive Judiciary

• Justice Nagarathna, in her judgment, remarked: "It is not enough to find comfort solely in the growing number of female judicial officers if we are unable to ensure for them a sensitive work environment and guidance."
• The judgment emphasized that increased female representation in the judiciary enhances the quality of judicial decision-making, particularly in cases involving women.
• The Court also stated that promoting women’s participation in the judiciary advances gender equality.

Oral Observations by Justice Nagarathna

• After pronouncing the order, Justice Nagarathna noted: "This judgment gave us an opportunity to say how women judicial officers have to be treated... Women judicial officers often take painkillers to sit through court proceedings. This reality must be acknowledged."
• Addressing the challenges faced by one officer, she added: "She was hospitalized due to COVID, her brother had blood cancer, she suffered a miscarriage, and she had to revive a vacant court. Despite all this, she was told that she had not performed well. Such dismissals cannot be justified."

Case Title: ADITI KUMAR SHARMA v STATE OF MADHYA PRADESH AND ORS., W.P.(C) No. 233/2024

Attachment:

Bollywood actor Kangana Ranaut has unconditionally apologised to lyricist and poet Javed Akhtar for making alleged defamatory statements against him in connection with the death of late actor Sushant Singh Rajput. The settlement was reached on February 28, 2025, with both parties personally appearing before the Chief Judicial Magistrate Court in Bandra.

Court Proceedings & Apology

• Ranaut, in her statement before the Additional Chief Judicial Magistrate AK Awari, clarified that her statements made on July 19, 2020, in an interview with Arnab Goswami were due to a "misunderstanding."
• She unconditionally withdrew her remarks against Akhtar and undertook not to repeat them in the future.
• Quote from Ranaut: "I apologise for the inconvenience caused to Mr. Javed Akhtar, who is one of the senior-most members of the film fraternity, and I have high regard for him."
• Following this, Akhtar agreed to withdraw his complaint, leading to the defamation case being disposed of by the court.

Background of the Defamation Case

• Javed Akhtar had filed a private complaint in December 2020, alleging that Ranaut had made false and defamatory allegations against him in her Republic TV interview on July 19, 2020.
• Akhtar claimed that Ranaut falsely linked him to the controversy surrounding Sushant Singh Rajput's death, which damaged his reputation.
• He emphasized his 55-year illustrious career and stated that he was a self-made man, who came to Mumbai in 1964 with just Rs 27.
• Akhtar also served as a Rajya Sabha member from 2010 to 2016.

Akhtar’s Complaint Allegations

• The complaint stated that Ranaut’s 57-minute-long interview included statements that had no direct personal knowledge and needlessly dragged his name into an unrelated, sensitive issue.
• The plea read: “Needlessly dragging the complainant's name into an unconnected, sensitive matter is tantamount to extending veiled threats to the complainant, who is an extremely respectable member of the film fraternity.”

Case Resolution

• After Ranaut’s formal apology and withdrawal of her statements, Akhtar agreed to settle the matter amicably.
• The Chief Judicial Magistrate Court in Bandra formally disposed of the case.

The Supreme Court of India has expressed dissatisfaction over the affidavits submitted by authorities in Delhi, Kolkata, and Hyderabad, questioning how deaths due to manual scavenging and manual sewer cleaning have occurred despite claims that the practice has been eradicated in these cities. The Court has now summoned officials to provide explanations and clarify their stance.

Supreme Court's Observations

• A bench comprising Justices Sudhanshu Dhulia and Aravind Kumar had earlier, on January 29, issued directions banning manual scavenging and sewer cleaning in six metropolitan cities: Delhi, Mumbai, Kolkata, Chennai, Bengaluru, and Hyderabad.
• The Delhi Jal Board (DJB), Kolkata Municipal Corporation (KMC), and Hyderabad Metropolitan Water & Sewerage Board (HMWSSB) failed to explain how and when the practice was eliminated in their respective jurisdictions.
• The Court has now sought the physical presence of officials from Bengaluru, Kolkata, Delhi, and Hyderabad in the next hearing.
• Additionally, the Court has demanded an explanation as to why criminal prosecution should not be initiated against officials or contractors responsible for employing manual scavengers or under whose watch deaths have occurred.

Mumbai & Chennai Affidavits Considered Satisfactory

• When the case was heard on February 19, the Supreme Court noted that the affidavits filed by Mumbai and Chennai authorities were satisfactory.
• However, both cities were directed to submit detailed affidavits specifying what machines and equipment have been deployed to replace manual scavenging and sewer cleaning.
• Authorities must also provide the exact date when the practice was officially stopped.

Bengaluru's Non-Compliance

• The Bruhat Bengaluru Mahanagara Palike (BBMP) failed to submit any affidavit.
• Consequently, the Court ordered the Commissioner of BBMP to be personally present in the next hearing to explain the status of manual scavenging in the city.

Kolkata: Affidavit Contradicted by Recent Deaths

• The Kolkata Municipal Corporation (KMC) claimed that manual scavenging had been eradicated. However, the Court noted that three deaths had occurred on February 2 due to manual sewer cleaning.
• Finding the affidavit misleading, the Court summoned KMC Commissioner Dhaval Jain to appear in person.
• Advocate Kunal Chatterji, representing KMC, argued that these deaths occurred outside KMC’s jurisdiction, under the Kolkata Metropolitan Development Authority (KMDA).
• However, Senior Advocate Nandini Sen Mukherjee, appearing for KMDA, stated that KMDA had not assigned any manual sewer cleaning work.
• Given these conflicting claims, the Court directed the Chief Secretary of West Bengal to clarify which authority is responsible for manual scavenging and sewer cleaning in Kolkata and its peripheral areas, including KMDA’s jurisdiction.

Delhi: Evasive Response Raises Questions

• The Court found that Delhi's affidavit attempted to evade the real issue, merely stating that manual scavenging is prohibited without explaining how seven deaths occurred in the past year.
• Dissatisfied with the response, the Court summoned Pankaj Kumar Atray, Director (S&DM), Delhi Jal Board, to personally appear at the next hearing.

Hyderabad: Lack of Explanation for Deaths

• The affidavit filed by the Hyderabad Metropolitan Water & Sewerage Board (HMWSSB) did not clarify when manual scavenging and manual sewer cleaning were officially stopped.
• Further, it failed to explain why three deaths had occurred in the past year due to manual sewer cleaning.
• The Court has now summoned K. Ashok Reddy, Managing Director of HMWSSB, to explain these lapses in the next hearing.

Next Hearing & Court’s Directions

• The matter is scheduled for its next hearing on March 20, 2025.
• The Court has reiterated that it will not tolerate non-compliance with its directions banning manual scavenging.
• Authorities must clarify under whose orders these illegal practices are continuing and why no action has been taken against officials or contractors responsible for these deaths.

Case Title: Dr. Balram Singh v. Union of India & Ors., W.P.(C) No. 324/2020

Attachment:

The Supreme Court of India has ruled that customs officers are not police officers and must satisfy a higher standard of "reasons to believe" before making an arrest under the Customs Act. The verdict was delivered by a bench comprising Chief Justice of India Sanjiv Khanna, and Justices MM Sundresh and Bela M Trivedi, in response to 279 petitions challenging the penal provisions of the Customs Act, CGST Act, and SGST Act. The ruling aims to ensure greater accountability in customs enforcement and prevent arbitrary detentions.

Customs Officers Are Not Police Officers: Supreme Court Relies on Precedents

• The Court held that the argument equating customs officers with police officers was "unfounded and flawed."
• Several landmark Supreme Court judgments were cited to support this view, including:
  • State of Punjab v. Barkat Ram
  • Ramesh Chandra Mehta v. State of West Bengal (Constitution Bench)
  • Illias v. Collector of Customs (Constitution Bench)
• The Court also referred to the recent judgment in Tofan Singh v. State of Tamil Nadu, where the majority opinion reaffirmed the distinction between police officers and customs officers.

Customs Officers Have Extensive Powers But Must Follow Procedural Safeguards

• While customs officers do not conduct investigations as per Chapter XII of the CrPC, they possess broad powers under the Customs Act, including:
  • The authority to investigate offenses
  • The power to arrest individuals suspected of customs violations
  • The ability to seize goods and evidence
  • The right to interrogate suspects
• The Court emphasized that customs officers must adhere to strict procedural obligations when exercising their powers, including:
  • Providing clear and recorded reasons for arrest
  • Maintaining detailed documentation of enforcement actions, including:
    • Name of the informant
    • Name of the accused individual
    • Nature of the alleged customs violation
    • Details of information received by the customs officer
    • Exact time of arrest
    • Seizure records and evidence collected
    • Statements recorded during the investigation

Application of CrPC Provisions to Customs Officers

• The Court ruled that certain CrPC provisions apply to customs officers, ensuring procedural fairness and protecting the rights of arrested individuals. These include:
  • Section 41B CrPC – Customs officers must carry identification badges with their names clearly displayed when making an arrest.
  • Section 41D CrPC – A person arrested by a customs officer has the right to meet an advocate of their choice during interrogation, though not throughout the entire investigation.
  • Section 50A(2) & (3) CrPC – An arrested person must be informed of their right to notify a family member or relative about their arrest and place of detention.
  • Compliance with these provisions must be documented, and the Magistrate must verify that the customs officer followed due process when the accused is presented in court.

Stricter Threshold for Arrests Under the Customs Act

• The Court clarified that customs officers are subject to a higher legal threshold for making arrests compared to police officers under the CrPC.
• Under Section 41 of the CrPC, a police officer can arrest a person without a warrant if:
  • A reasonable complaint has been made
  • Credible information has been received
  • Reasonable suspicion exists that the person has committed a cognizable offense
• In contrast, Section 104(1) of the Customs Act states that a customs officer can arrest an individual only if they have "reasons to believe" that an offense has been committed.
• The Court explained:
  • "A person is said to have a 'reason to believe' a thing if they have sufficient cause to believe that thing but not otherwise."
  • This "reasons to believe" standard is more stringent than "mere suspicion", as required under Section 41 CrPC.

Case Title: Radhika Agarwal v. Union of India and Ors., W.P.(Crl.) No. 336/2018 (and connected matters)

Attachment:

"A credible and consistent child witness's testimony can form the sole basis for conviction, even without corroboration, and mere delay in recording their statement does not render it unreliable"

Citation: Criminal Appeal No. 1669 of 2012

Date of Judgment: 24^th February, 2025

Court: Supreme Court of India

Bench: J.B. Pardiwala (J) and Manoj Misra (J)

Facts

• On the night of July 15, 2003, the accused, Balveer Singh, allegedly murdered his wife, Birendra Kumari, at their residence. The case against him was primarily built on the testimony of their seven-year-old daughter, Rani, who was an eyewitness to the incident. According to her statement, she saw her father grab her mother by the neck, assault her, and ultimately press her neck with his leg, leading to her death. Rani also stated that after her mother had died, her father, along with his sister, cremated the body in secrecy, without informing the authorities or the community.
• The prosecution argued that the accused’s actions demonstrated clear intent to eliminate evidence, as the body was disposed of without any proper legal procedures. The clandestine nature of the cremation raised further suspicion regarding the cause of death. Additionally, neighbors had reportedly heard screams from the house on the night of the incident, which stopped suddenly, further corroborating the theory of foul play.
• Following the complaint lodged by the deceased’s family, an investigation was initiated. The police registered a case under Sections 302 (murder) and 201 (causing disappearance of evidence) of the Indian Penal Code (IPC). The trial court found the circumstantial evidence, combined with Rani’s testimony, sufficient to convict Balveer Singh.
• However, on appeal, the Madhya Pradesh High Court overturned the conviction, acquitting the accused. The High Court doubted the reliability of Rani’s testimony due to an 18-day delay in recording her statement. It suggested that the child may have been tutored and influenced by her maternal family, with whom she was residing after the incident.
• Dissatisfied with the High Court's ruling, the State of Madhya Pradesh appealed to the Supreme Court, arguing that the trial court had correctly assessed the evidence and that the High Court had erred in disregarding Rani’s testimony without substantial justification.

Decision of the Lower Court (Trial Court)

The Trial Court found Balveer Singh guilty under Sections 302 and 201 of the IPC. The court relied heavily on the testimony of Rani, the child witness, who provided a clear and consistent account of the incident. The court also noted the circumstantial evidence, particularly the clandestine cremation of the deceased’s body, which suggested an intent to destroy evidence.

The court rejected the defense's claim that Rani had been tutored, stating that her testimony was natural, credible, and consistent throughout the proceedings. Furthermore, the prosecution presented corroborative evidence, including witness statements and forensic findings, which strengthened the case against the accused. Accordingly, the Trial Court sentenced Balveer Singh to life imprisonment for murder and four years of rigorous imprisonment for destroying evidence, along with a fine.

Decision of the High Court

The Madhya Pradesh High Court, upon appeal by the accused, overturned the conviction and acquitted Balveer Singh. The High Court expressed doubts about the credibility of Rani’s testimony, primarily due to an 18-day delay in recording her statement. The court found this delay significant enough to question the reliability of her testimony, suggesting that she may have been influenced or tutored by her maternal relatives, who had a strained relationship with the accused.

Additionally, the High Court pointed out inconsistencies in witness statements and observed that the prosecution had not provided strong enough evidence beyond the child witness’s testimony to convict the accused. The court emphasized that in cases relying on child witnesses, corroboration was crucial, and in this instance, it found the corroborative evidence insufficient.

Due to these concerns, the High Court acquitted Balveer Singh, ruling that the prosecution had failed to prove the case beyond a reasonable doubt.

Decision of the Supreme Court

The Supreme Court overturned the High Court’s acquittal and reinstated the conviction. The Court conducted a detailed analysis of the evidence and found that the High Court had erred in disregarding the child witness’s testimony merely due to the delay in recording her statement.

The Supreme Court reaffirmed that a child witness’s testimony is admissible and does not require corroboration if it is found credible and consistent. It emphasized that minor contradictions do not necessarily undermine the reliability of a child witness. The Court also held that the accused’s failure to explain his wife’s death, which occurred within the confines of their home, was a relevant factor under Section 106 of the Indian Evidence Act.

The Court noted that Rani’s testimony was detailed, coherent, and not influenced by external factors. It also held that the High Court had applied an overly skeptical approach to her testimony without substantial reasoning. The clandestine cremation of the deceased further reinforced the prosecution’s case, indicating the accused’s involvement in the crime.

Accordingly, the Supreme Court reinstated the Trial Court’s judgment, holding Balveer Singh guilty of murder and destroying evidence, and reaffirmed his sentence of life imprisonment.

Key legal issues discussed

1. Is the testimony of a child witness admissible without corroboration?

Yes

The Supreme Court reaffirmed that a child witness’s testimony does not require corroboration if it is found credible and consistent. The Court observed in Paragraph 27 of the judgment referring to Dattu Ramrao Sakhare v. State of Maharashtra[1] case noted that:

"There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanor of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever."

Additionally, the Court referenced Paragraph 31 of the judgment referring to Suryanarayana v. State of Karnataka[2], observed:

"The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness."

The Court emphasized that minor contradictions in a child witness’s testimony do not necessarily undermine its credibility. The Supreme Court also clarified that while courts may insist on corroboration as a matter of caution, it is not a mandatory legal requirement.

The ruling thus reaffirmed that a child witness’s testimony, if found to be natural, consistent, and credible, is sufficient to sustain a conviction without requiring additional corroboration. The presence of independent circumstantial evidence further strengthened the reliability of the child witness’s testimony in this case.

After the completion of the hearing, the Supreme Court upheld the conviction of Balveer Singh, emphasizing that child witness testimony, if found credible, can form the sole basis for conviction. The ruling clarified the legal standards for evaluating child testimony and the applicability of Section 106 of the Evidence Act in cases of unexplained deaths within a private household.

2. Was there a delay in recording the child witness’s statement?

Yes

There was an 18-day delay in recording the statement of the child witness, Rani (PW6), which was considered by the High Court while assessing the reliability of her testimony. The Supreme Court addressed this issue extensively and found that while the delay was present, it was not necessarily indicative of fabrication or tutoring.

The Supreme Court acknowledged the delay but emphasized that delay alone is not sufficient to discard the testimony of PW6. It ruled that the investigating officer was not questioned regarding the delay, and therefore, an adverse inference should not be drawn against the prosecution court in paragraph 39 observed that

"Indisputably, the police statement of PW6 came to be recorded after 18 days of the incident. Although the police was well aware that she was a vital witness to the entire case and could guide the investigation in the right direction, yet to mechanically discard her testimony solely on the ground of delay alone was not warranted in the peculiar facts and circumstances of the case, particularly when no question in this regard was put to the IO so as to give him an opportunity to explain the reason for such delay."

The Supreme Court referred to Ranbir & Ors. v. State of Punjab[3], which held that delay in examining a witness during an investigation would only be material if it suggested unfair practice by the police to introduce false testimony​. Court in paragraph 40 observed that

"Delay in examining a witness during an investigation would be material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case."

The Supreme Court ultimately rejected the High Court’s conclusion that the delay indicated tutoring. It held that the child witness’s testimony remained credible, and there was no evidence that the delay was deliberate or manipulated​. Thus, while the statement of the child witness was recorded late, the Supreme Court ruled that this delay did not undermine the credibility of her testimony.

[1] (1997) 5 SCC 341.

[2] (2001) 9 SCC 129.

[3] (1973) 2 SCC 444.

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On February 25, 2025, the Supreme Court of India issued a significant ruling regarding the interpretation of Section 197 of the Code of Criminal Procedure (CrPC). The Court clarified that the concept of a "deemed sanction"—where a sanction for prosecuting a public servant is automatically assumed if not granted within a stipulated time—does not exist under this section.

Key Points of the Judgment:

No Deemed Sanction under Section 197 CrPC:

• The Supreme Court, consisting of Justice BV Nagarathna and Justice Satish Chandra Sharma, made it clear that Section 197 of CrPC does not recognize the idea of a "deemed sanction".
• The Court rejected the argument that failure to grant sanction within the prescribed time could be treated as a deemed sanction for prosecution.

Rejection of Cited Precedents:

• The complainant and prosecution had referred to two major cases, Vineet Narain v. Union of India and Subramanian Swamy v. Manmohan Singh, to support their argument for the deemed sanction concept.
• However, the Court dismissed these cases, noting that Vineet Narain dealt with the investigation powers of the CBI and CVC, and Subramanian Swamy focused on guidelines for Parliament’s consideration rather than establishing a legal basis for deemed sanction under Section 197 CrPC.

Statutory Interpretation:

• The Supreme Court emphasized that the concept of deemed sanction is not statutorily incorporated into the CrPC.
• The Court stated, “However, such a proposition has not yet been statutorily incorporated by the Parliament and in such a scenario, this Court cannot read such a mandate into the statute when it does not exist.” This clarifies that without a statutory provision, the concept of a deemed sanction cannot be applied.

Comparison with the New Criminal Law (BNSS 2023):

• The Court made a distinction between the CrPC and the Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023, a newer criminal law that introduces the concept of deemed sanction.
• Under Section 218(1) of BNSS, if sanction is not granted within 120 days, it is considered deemed granted, allowing for prosecution to proceed. However, this provision is not part of the CrPC, and the Supreme Court noted that it cannot be read into the existing legal framework.

Case Background:

• The case involved a public servant who was facing prosecution despite the sanctioning authority failing to provide sanction within the stipulated time. The respondents argued that because the sanction was delayed, it should be considered deemed granted.
• The Supreme Court ruled that the public servant could not be prosecuted without a valid sanction, reaffirming the importance of obtaining prior sanction before proceeding with charges against a public servant under Section 197 CrPC.

Final Ruling:

• In conclusion, the Supreme Court quashed the proceedings against the public servant, ruling that the Magistrate could not proceed with the case without a valid sanction from the appropriate authority.
• The Court made it clear that the absence of sanction invalidates any prosecution under Section 197 CrPC.

Case Title: SUNEETI TOTEJA VERSUS STATE OF U.P. & ANOTHER

Attachment:

on February 26, 2025, the Supreme Court of India ruled that legislative decisions are not immune from judicial review, clarifying the distinction between "proceedings in the legislature" and "legislative decisions." The case involved the expulsion of RJD MLC Sunil Kumar Singh from the Bihar Legislative Council after he made derogatory remarks about the Chief Minister of Bihar, Nitish Kumar. The Court's ruling underscores the scope of judicial reviewover legislative actions and reaffirms that such decisions can be scrutinized when they affect fundamental rights.

This ruling came after the Bihar Legislative Council challenged the maintainability of Singh's writ petition against his expulsion, citing Article 212(1) of the Constitution of India, which offers immunity to "proceedings in the legislature"from judicial review based on alleged procedural irregularities. The Court's verdict redefined the boundaries of legislative privilege, making it clear that legislative decisions impacting individuals' rights cannot remain unchallenged in the judicial arena.

The Case: Expulsion of Sunil Kumar Singh

• Sunil Kumar Singh, an MLC from the Rashtriya Janata Dal (RJD), was expelled from the Bihar Legislative Council for making derogatory comments about Nitish Kumar, the Chief Minister of Bihar.
• The Bihar Legislative Council argued that the expulsion was immune from judicial review under Article 212(1), which prevents scrutiny of legislative proceedings based on procedural issues.

The Court’s Ruling: Legislative Decisions vs. Proceedings

• The Supreme Court, through a bench of Justices Surya Kant and NK Singh, emphasized that Article 212(1)protects proceedings in the legislature but does not shield legislative decisions from judicial scrutiny.
• In their ruling, the Court distinguished between "proceedings in the legislature" and "legislative decisions":
  • Proceedings in the Legislature: The formal steps, debates, and motions that occur within the legislative body. These processes are structured to facilitate deliberations and decision-making. Article 212(1) protects these proceedings from judicial review, particularly with respect to procedural irregularities.
  • Legislative Decision: The final determination or outcome of the legislative process. This is the formal expression of the will of the legislature and is not immune from judicial review, especially if it affects an individual’s fundamental rights.

Judicial Review: A Safeguard for Fundamental Rights

• The Court observed that judicial review of legislative decisions is not an overstep of judicial authority but an essential safeguard for upholding constitutional supremacy and protecting fundamental rights.
• The Court pointed out that the Ethics Committee’s decision to expel Singh was an administrative action, not a legislative function, and therefore, could be reviewed by the judiciary.
• In the words of the Court, “It could not have been the intent of lawmakers to circumscribe Constitutional Courts unconditionally from scrutinising the validity of the actions of the Legislature, which may encroach upon the Fundamental Rights of the members and/or citizens.”

The Precedent: Ashish Shelar v. Maharashtra Legislative Assembly

• The Court relied on the precedent set in Ashish Shelar v. The Maharashtra Legislative Assembly, where the Court had held that administrative actions taken by legislative bodies or their committees could be subject to judicial review if they affect the rights and interests of individuals.
• This ruling reinforces that administrative actions, even when conducted by legislative bodies, are not beyond the reach of the judiciary.

Case Details: SUNIL KUMAR SINGH v. BIHAR LEGISLATIVE COUNCIL AND ORS., W.P.(C) No. 530/2024

Attachment:

Introduction

The International Centre for Settlement of Investment Disputes has, therefore, been involved in quite a few disputes concerning investments of foreign nationals, and this is why it is now so proficient in such investment disputes. It mainly deals with disputes that emanate between the patterns of state-investor relations established by investment policy. 

About ICSID

ICSID was established in 1966 under the Convention on the Settlement of Investment Disputes between States and Nationals of other States multilateral treaty brought into being by the initiative of the Executive Directors of the World Bank to propagate or promote foreign direct investment. It thus provides an even-handed non-political efficient forum specifically inscribed for handling disputes merely between investors and states.[1]

Features of the ICSID Convention

The mandates for the conciliation and arbitration of disputes between ICSID contracting member state parties and foreign investors from one other member state under the Conventions are to construct a multilateral treaty which establishes an impartial, autonomous, and self-sufficient system of rules for the protection of foreign investments.  

Domestic processes are delocalized from ICSID proceedings. This indicates that the ICSID process is not influenced by local courts. The self-contained system's consequences and other key features include:[2]

• According to Article 53 of the ICSID Convention, arbitration awards are final and legally binding, and no Member State's courts have the authority to overturn them.
• According to Articles 49 to 52 of the Convention, the Convention itself outlines the few post-award remedies that are available.
• According to Article 54 of the Convention, the money awards under the ICSID Convention are recognized and enforced as final judgments in any Member State by all Member States, regardless of whether they are parties to the dispute.
• According to Article 26 of the Convention, disputing parties accept ICSID arbitration as the sole remedy once they agree to it, unless they agree otherwise.
• Except in some specific situations, a Member State is not permitted to grant diplomatic protection to any of its citizens who have agreed to arbitration under Article 27 of the Convention.
• According to Articles 62 to 63 of the Convention, the location of procedures, or the location of hearings, is legally meaningless in Member States.
• According to Articles 21 to 22 of the Convention, participants are immune from the judicial system during the procedures.

Mandate and Functions of ICSID

The role of ICSID was to settle disputes in connection with investments between an investor and the state.  In such a case, these may be resolved through:

• Arbitration: Any proceedings where an independent or impartial adjudicator binds the parties' conduct by making a ruling on the issue.
• Conciliation: Non-compulsory process that offers assistance to the parties to achieve amicable settlement to which they could all agree.[3]

There exists an elaborate set of rules and procedures that govern these proceedings to ensure disputes are heard and, therefore, resolved in an efficient and transparent manner. Very few cases have been handled to date. Such a showcase should put emphasis on the essentially supportive position of ICSID in that region.

Role of International Centre for Settlement of Investment Disputes

ICSID provides neutral and impartial procedures under which disputes between states and investors may be resolved. Its importance in the context of global investment is complex:

• Depoliticization of Disputes: ICSID helps keep friendly international relations by offering a neutral forum that keeps disagreements from turning into diplomatic confrontations.[4]
• Enforceability of Awards: Arbitral awards made under ICSID have the same legal force and effect as final court decisions in any member state. The rules of the Convention, which mandate that member nations acknowledge and uphold ICSID awards, make this possible and give investors peace of mind over the safety of their capital.
• Consistency and Predictability: ICSID ensures the development of fair laws on international investments by following its methods and precedents, giving a high degree of predictability to states and investors alike.[5]

ICSID's Function in Resolving Disputes Between Investors and States

The International Centre for Settlement of Investment Disputes is put in the loop about the entire process concerning the resolution of disputes between investors and states. Some of the generic functions are herewith categorized as:[6]

• Arbitration and Conciliation Services: ICSID engages in arbitration and conciliation facilities to settle, inter alia, disputes between governments and foreign investors.
• Neutral Forum: It provides you with neutral and non-political ground, assuring impartiality in the settlement of all disputes.
• Enforcement of Awards: An award given under the ICSID Convention is binding upon the parties and enforceable in any member State, much like that of a judgment of the final court of that State.
• Expert Administration: ICSID administers arbitration, ensuring its observance of those rules and procedures, which provides uniformity and fairness.
• Capacity Building and Research: The Centre conducts advisory missions, research, and publishing to genuine international investment law development.

Landmark Cases on Role of the International Centre for Settlement of Investment Disputes

1. Suez and Vivendi v. Argentina:[7] 

The International Centre for Settlement of Investment Disputes (ICSID) played an incredibly big role in the case of Suez and others v. Argentina which was born from Argentinian measures that stemmed from the economic crisis of the early 2000s and had an impact on foreign investors, and particularly on public utilities. On the basis of the ICSID, various European companies, including Suez, Vivendi, and Aguas de Barcelona, advanced their claims against Argentina for alleged violations of obligations from one or more investment protection treaties, which provided for fair and equitable treatment and expropriation.

2. Chevron v. Ecuador:[8] 

While the dispute itself was certainly not about ICSID arbitration, the International Centre for Settlement of Investment Disputes served as a significant indirect participant in the Chevron v. Ecuador dispute. The case highlighted some of the key imperfections in enforcing ICSID awards along with broader discussions surrounding investment arbitration, jurisdictional conflicts, and environmental claims.

Drawbacks of ICSID

ICSID does not have a structured appeals process and functions as an ad hoc arbitration panel rather than a court with permanent judges. Rather, there is a review committee that has no authority to reverse the original panel's decisions. There is no definition of "investment" in the Convention. The Convention delegates were shown two drafts of the phrase "investment," but neither one received any support. The vast majority of the legal committee members accepted a British proposal that did not define the term "investment."[9]

Conclusion

The ICSID aims to provide access to international dispute resolution and a role for private parties in international economic interactions. The host countries are guaranteed that there won't be any foreign politics involved in their business interactions with private investors, and private investors can feel secure doing business with them. Nevertheless, with the increasing flow of foreign investment and the general reference to ICSID in investment treaties regarding arbitration of claims or disputes, it is pertinent to examine the Convention closely.

Indeed, it must be noted that the International Centre for Settlement of Investment Disputes is the head in international investment law. The ability to create an impartial, effective, and legally binding forum for dispute resolution enhance the international economic stability and assures investors about the maintenance of an element of confidence.[10]

ICSID is still a reliable option for settling investment disputes in spite of certain obstacles. ICSID is expected to continue to play a significant role in determining the direction of international investment law with continued reforms and growing global engagement.

[1] JUS CONNECT, https://jusconnect.com/en/d/profile/institution/en-icsid-international-centre-for-settlement-of-investment-disputes#about (last visited Feb, 01, 2025).

[2] PENCE LAW LIBRARY, International Commercial Arbitration: International Centre for Settlement of Investment Disputes (Feb. 02, 2025, 9:45 PM) https://wcl.american.libguides.com/c.php?g=599758&p=4229077

[3] International Centre for Settlement of Investment Disputes, https://icsid.worldbank.org/procedures (last visited Feb, 02, 2025).

[4] Gautam Mohanty & Alexandros Bakos, The Depoliticization of Investment Disputes- How Deep Does the “Rabbit Hole” Go? (Feb. 02, 2025, 9:45 PM), https://www.wti.org/media/filer_public/93/35/9335ff8e-2fc1-4eb8-81a5-104cece806bd/wti_wp_09_2023.pdf

[5] International Centre for Settlement of Investment Disputes, https://icsid.worldbank.org/About/ICSID (last visited Feb, 02, 2025).

[6] Christoph Schreuer, International Centre for Settlement of Investment Disputes (ICSID) (Feb. 02, 2025, 10:45 PM), https://investmentlaw.univie.ac.at/fileadmin/user_upload/p_investmentlaw/Writings/A033.pdf

[7] Suez, Sociedad General de Aguas de Barcelona, S.A.and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19

[8] Chevron Corporation and Texaco Petroleum Corporation v. Ecuador (II), PCA Case No. 2009-23

[9] Dominique Grisay, “International Arbitration: The ICSID Convention” The Bulletin, Volume 6 Issue 1 http://www.imakenews. com/iln/e_article000763642.cfm?x=b11,0,w> ( last visited Feb, 02, 2025).

[10]   International Centre for Settlement of Investment Disputes, https://icsid.worldbank.org/About/ICSID (last visited Feb, 02, 2025). 

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Introduction

In a surprising turn of events, the Government of India withdrew the Advocates (Amendment) Bill, 2025, following widespread protests and objections from legal professionals across the country. The bill, introduced to amend the Advocates Act, 1961, sought to introduce significant changes in legal education, professional conduct, and disciplinary measures. However, strong opposition from the Bar Council of India (BCI) and legal professionals led to its retraction.

The introduction of the bill was met with mixed reactions. While the government positioned it as a necessary step to modernize the legal profession, many in the legal community viewed it as an overreach that threatened the autonomy of legal practitioners. Several contentious clauses, including restrictions on legal protests and increased government oversight, became focal points of debate. This article explores the provisions of the bill, the reasons for its strong opposition, and the impact of its withdrawal on India's legal system.

Background: The Need for Reform

The Advocates Act, 1961, has long served as the cornerstone of legal regulation in India, governing the conduct and practice of advocates across the country. The Act established the Bar Council of India and State Bar Councils to ensure the discipline and professional integrity of lawyers. However, as the legal landscape evolved with globalization and technological advancements, many stakeholders felt that certain provisions of the Act required updating to align with international best practices.

To address these evolving challenges, the government introduced the Advocates (Amendment) Bill, 2025, for public consultation on February 13, 2025. The bill proposed reforms intended to enhance legal education, promote accountability among lawyers, and curb professional misconduct. However, several provisions raised alarm among legal professionals, who feared that the amendments could diminish their independence and expose them to unwarranted scrutiny.

The bill’s withdrawal on February 22, 2025, came after extensive consultations and strong opposition from lawyers, bar associations, and legal scholars. While its retraction has been celebrated as a victory for professional autonomy, the debate surrounding legal reforms remains ongoing, indicating that further discussions and revisions are expected in the future.

Key Provisions of the Advocates (Amendment) Bill, 2025

The Advocates (Amendment) Bill, 2025, was designed to introduce reforms that would impact various aspects of the legal profession, from regulation and governance to professional accountability. The government sought to modernize legal practice, introduce mechanisms for enhanced oversight, and address grievances from both legal professionals and the public. While some viewed these reforms as necessary, others saw them as an infringement on the independence of the legal profession.

At the heart of the bill were provisions aimed at curbing professional misconduct, improving the efficiency of the judicial process, and ensuring the integrity of the legal community. The government argued that these measures were essential for fostering public trust in the legal system, while critics contended that some clauses were overly restrictive and granted excessive power to regulatory authorities. Below are some of the major provisions that were proposed in the bill:

1. Prohibition on Strikes and Court Boycotts 

One of the most controversial provisions of the bill was Section 35A, which explicitly prohibited advocates and bar associations from calling for boycotts or abstaining from court work. This measure was introduced to ensure the continuous functioning of the judicial system and prevent disruptions that could affect the delivery of justice.

The government justified this provision by arguing that frequent strikes and boycotts by advocates have historically resulted in prolonged case delays, affecting litigants who rely on the legal system for resolution. By preventing advocates from refusing court work, the bill aimed to uphold the right to timely justice for all citizens. However, legal professionals criticized this move as a violation of their fundamental right to protest. Lawyers argued that striking is a legitimate tool to express dissent against judicial policies, administrative inefficiencies, and unfair treatment within the legal system. Many bar associations viewed this provision as an attempt to suppress their collective bargaining power, thereby eroding their autonomy.

Furthermore, opponents of the bill contended that the provision did not take into account instances where boycotts were necessary to address grave issues such as judicial corruption, unfair laws, or executive interference. The lack of a provision allowing exceptions for justified protests made this clause particularly contentious among advocates nationwide.

2. Introduction of Advocate Liability for Misconduct (Section 45B) 

The bill sought to hold advocates accountable for any financial losses suffered by clients due to deliberate misconduct. Section 45B provided that any person who suffered a loss due to an advocate’s negligence or intentional misconduct could file a complaint and seek redress under the regulations prescribed by the Bar Council of India.

The rationale behind this provision was to enhance accountability and ensure that legal professionals adhered to high ethical standards. The government argued that since advocates serve as representatives of justice, they should be held responsible for any dishonest or negligent conduct that leads to financial harm to their clients.

However, many lawyers raised concerns about the potential misuse of this provision. They feared that disgruntled clients could use frivolous complaints to harass advocates, thereby creating an atmosphere of intimidation. Additionally, critics argued that the bill did not clearly define “misconduct,” leaving the term open to interpretation and misuse. Without adequate safeguards, lawyers worried that this provision could lead to unfair disciplinary actions and hinder their ability to practice independently.

3. Increased Government Oversight on Bar Councils (Section 48B) 

The bill granted the government the authority to nominate up to three members to the Bar Council of India and issue directives that the council would be required to follow. This move was framed as a means of ensuring greater accountability and efficiency within the legal profession.

However, this provision sparked fears that it would compromise the independence of the Bar Council of India, which has traditionally functioned as a self-regulatory body. Many legal professionals and bar associations saw this as an attempt to exert political influence over the legal community. The provision was perceived as a step towards diminishing the ability of legal professionals to operate without governmental interference, potentially undermining the credibility of the judicial system.

4. Regulation of Foreign Lawyers and Law Firms 

The bill proposed allowing foreign law firms and lawyers to practice in India, expanding the definition of a "legal practitioner" to include those affiliated with foreign entities. This was intended to align India's legal sector with global standards and foster cross-border legal collaborations.

While some welcomed this as an opportunity to enhance the quality of legal services and increase competition, many Indian lawyers feared it would put domestic practitioners at a disadvantage. Small and independent legal professionals, in particular, expressed concerns that multinational law firms with significant resources could monopolize the market, leading to reduced opportunities for local advocates.

Implications of the Withdrawal

The withdrawal of the Advocates (Amendment) Bill, 2025, carries far-reaching consequences for the legal profession and the broader judicial system in India. While it has been widely celebrated as a victory for legal professionals advocating for independence, it has also sparked a broader discussion on the need for legal reforms that balance accountability with professional autonomy.

The strong opposition and eventual retraction of the bill demonstrate the collective strength of the legal fraternity in protecting the self-regulatory framework of the profession. However, this episode also underscores the importance of proactive reforms within the legal community to address long standing issues. The absence of reform in critical areas such as professional misconduct, disciplinary mechanisms, and legal education may invite future government intervention if left unaddressed. Therefore, it is imperative for legal institutions to take the lead in proposing meaningful changes that enhance transparency while safeguarding autonomy.

1. Strengthening the Autonomy of the Bar Council of India 

One of the major outcomes of the bill’s withdrawal is the reaffirmation of the Bar Council of India’s independence. The Bar Council has historically been a self-regulating body that governs the conduct of legal professionals. The government’s initial attempt to introduce provisions allowing greater intervention in the Bar Council’s affairs was met with strong opposition, as it was seen as a threat to the autonomy of the legal fraternity.

The withdrawal of the bill signals that any future legal reforms will need to respect the self-governing nature of legal institutions while ensuring that they remain accountable and transparent. The Bar Council of India is now expected to take proactive steps in addressing issues related to professional ethics, disciplinary proceedings, and legal education reforms to avoid similar government interventions in the future.

2. Future Legal Reforms will require wider consultation 

The controversy surrounding the bill has demonstrated that any future amendments to the Advocates Act must involve broader consultation with legal professionals, bar associations, and other key stakeholders. The legal community has made it clear that changes impacting their profession cannot be introduced without thorough deliberation and consensus-building.

The government is now likely to adopt a more inclusive approach to legal reforms, engaging with representatives from the legal fraternity before drafting any new legislation. This would help in crafting amendments that not only enhance accountability but also preserve the integrity and independence of the legal profession. A more collaborative approach would ensure that legal practitioners feel their concerns are heard and that proposed changes align with their needs and aspirations.

3. Need for Legal Reforms Remains 

Although the bill was withdrawn, it has brought critical issues to the forefront. The need for reforms in legal education, professional accountability, and ethics remains a pressing concern. Issues such as the lack of stringent disciplinary mechanisms for errant advocates, outdated legal curricula, and the absence of standardized regulations for foreign lawyers in India are still unresolved.

A revised bill, with modifications that address the concerns raised by the legal community, is expected to be introduced in the future. The challenge lies in drafting a bill that strengthens professional accountability without encroaching upon the independence of legal practitioners. The government, in collaboration with the Bar Council of India, will need to develop mechanisms that ensure ethical conduct while safeguarding the rights and freedoms of advocates.

Conclusion

The withdrawal of the Advocates (Amendment) Bill, 2025, marks a significant moment in India’s legal history. It underscores the power of collective advocacy and the necessity of meaningful dialogue in shaping legal reforms. While the bill’s withdrawal is seen as a victory for legal professionals, the broader need for reforms remains. The government’s next steps will be crucial in determining the future direction of legal education and professional regulation in India.

Looking ahead, the legal community must remain proactive in addressing concerns that initially prompted the bill. If left unattended, issues such as lack of accountability, professional misconduct, and outdated legal education frameworks may persist, leading to renewed attempts at reform. Lawyers, bar councils, and policymakers must collaborate to propose solutions that balance professional autonomy with public accountability.

Additionally, the incident highlights the importance of structured dialogue between legal practitioners and lawmakers. Future legislative measures affecting the legal profession should undergo comprehensive stakeholder engagement to ensure balanced, fair, and effective reforms. The focus should be on achieving legal modernization while preserving the foundational principles of the legal profession.

For now, the legal community stands vigilant, ready to engage in discussions that safeguard the integrity and autonomy of the profession while addressing the evolving needs of the legal system. The withdrawal of the bill may have halted immediate changes, but it has sparked an important conversation that will shape the legal landscape for years to come.

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The Supreme Court of India has set out important guidelines to determine the proportionality of punishment for members of the legislature found guilty of misconduct. This ruling comes after the Bihar Legislative Council expelled RJD MLC Sunil Kumar Singh for making derogatory remarks against Chief Minister Nitish Kumar. The Supreme Court, while overturning the expulsion, emphasized the importance of ensuring fairness and balance when disciplining elected representatives. The Court stressed that disproportionate punishments not only undermine democratic values but also harm the interests of the electorate who elect their representatives.

Key Points of the Supreme Court’s Ruling:

• Proportionality of Punishment:
  • The Court emphasized that punishments imposed on a member of the legislature must be proportionate to the gravity of the misconduct. “There is no gainsaid that imposing a disproportionate punishment not only undermines democratic values by depriving the member from participating in the proceedings of the House but also affects the electorates of the constituency who remain unrepresented.”
• Impact of Expulsion:
  • The removal of a member from the legislature is a serious matter. It affects both the individual member and their constituency, as the expelled member cannot participate in crucial legislative decisions. The Court noted that brief absences can impede a member's ability to contribute effectively. “The removal of a member from the House therefore is a significant issue for both the members and the constituency they represent.”
• Judicial Oversight of Punitive Measures:
  • The Court reaffirmed that if a punishment seems excessively harsh, constitutional courts have a duty to review the actions taken by the legislature to ensure fairness. “If the punishment inflicted upon the member concerned appears to be prima facie harsh and disproportionate, Constitutional Courts owe a duty to undo such gross injustice and review the proportionality of such disqualifications or expulsions.”
• Guiding Principles for Scrutinizing Punishments:
  • The Supreme Court outlined several parameters that courts must consider when evaluating the appropriateness of legislative actions against members:
    • (a) Degree of obstruction caused by the member in the proceedings of the House.
    • **(b) Whether the member’s behavior brought disrepute to the dignity of the entire House.
    • (c) Previous conduct of the erring member.
    • (d) Subsequent conduct, such as remorse or cooperation with institutional mechanisms.
    • (e) Availability of lesser restrictive measures to discipline the member.
    • (f) Whether crude expressions used by the member were deliberate or simply reflective of local dialect.
    • (g) Whether the measure adopted is suitable for achieving the desired disciplinary purpose.
    • (h) Balancing the interests of society, particularly the electorates, with those of the erring member.
• Purpose of Punishment:
  • The Court further clarified that the primary goal of legislative discipline is to maintain decorum within the House, not to serve as a tool for retribution. The judgment emphasized that any punishment should foster an environment of constructive debate and deliberation. “The purpose of imposing punishment is not to serve as a tool for retribution but rather to uphold and enforce discipline within the House.”
• Fairness and Due Process:
  • The Court underscored the importance of fairness, reasonableness, and due process when determining punitive measures. It must be ensured that such actions do not unduly stifle democratic participation or diminish the representative nature of the institution. “Any punitive measure must be proportionate and guided by considerations of fairness, reasonableness, and due process.”

Case Title: SUNIL KUMAR SINGH v. BIHAR LEGISLATIVE COUNCIL AND ORS., W.P.(C) No. 530/2024

Attachment:

In a significant judgment on February 25, 2025, the Supreme Court of India acquitted Nandkumar Babulal Soni, a jeweler, who was convicted under Section 411 of the Indian Penal Code (IPC) for possessing stolen gold bars linked to the high-profile ₹6.7 crore fraud case involving Vijaya Bank. The case revolved around the fraudulent use of fake Telegraphic Transfers (TTs), leading to the purchase of gold bars. The Court’s decision was based on the failure of the prosecution to prove that the appellant had knowledge or reason to believe that the property in question was stolen.

Key Points of the Supreme Court’s Judgment:

• Mere Possession Not Enough for Conviction:
  The Court emphasized that possession of stolen property alone does not lead to a conviction under Section 411 IPC unless it is proven that the accused had knowledge or reason to believe the property was stolen.
• Prosecution's Failure to Prove Knowledge:
  The prosecution was unable to establish that the gold bars seized from the jeweler were part of the fraudulently acquired assets linked to the fake TTs. The Court noted that knowledge of theft was essential for conviction, and since this was not proven, the conviction could not be upheld.
• Reference to Legal Precedent:
  Relying on the Trimbak vs. State of M.P. (AIR 1954 SC 39) case, the Court reiterated that the prosecution must prove the following:
  • The accused was in possession of the stolen property.
  • The property was in someone else’s possession before the accused.
  • The accused had knowledge that the property was stolen.
• Absence of Direct Link to Fraudulent Activities:
  Although the appellant had purchased the gold bars from jewelers M/s. CN and M/s. V.B. Jewellers, the Court noted that the prosecution failed to show that the appellant knew the demand drafts used for these purchases had been obtained through fraudulent means.
• Burden of Proof on the Prosecution:
  The Supreme Court emphasized that the prosecution must prove its case beyond a reasonable doubt, completing the chain of circumstances against the accused. In this case, the prosecution had not established a direct connection between the gold bars and the fraudulent activities.
• Acquittal and Return of Seized Gold Bars:
  The Court overturned the High Court’s decision that had upheld the appellant’s conviction. It directed the return of 205 gold bars seized from the jeweler’s firm, noting that the appellant was entitled to possession since the prosecution failed to prove the property was stolen.

Case Background:

The case arose from a fraudulent banking scheme at Vijaya Bank, Nasik, during the late 1990s, involving the opening of a fictitious account under the name M/s. Globe International. The fraud involved fake TTs, leading to the deposit of ₹6.7 crore into the account. The money was then used to purchase gold bars, which were traced to several individuals, including Nandkumar Babulal Soni.

Court's Ruling:

• The Supreme Court found that the prosecution failed to prove the link between the stolen money and the seized gold bars. As a result, the Court acquitted the appellant of all charges and directed the return of the seized gold bars to him.

Legal Representation:

• For the Appellant (Nandkumar Babulal Soni):
  Senior Advocate Mr. Uday Gupta, along with a team of advocates including Mr. Hiren Dasan, Mr. Chand Qureshi, and others.
• For the Respondents (State of Maharashtra):
  Advocates Mr. Upmanyu Tewari, Mrs. V.D. Khanna, and a team of counsel.

Case Title: NANDKUMAR BABULAL SONI VERSUS THE STATE OF MAHARASHTRA & ORS. ETC. ETC.

Attachment:

Introduction

Bilateral investment treaties are agreements between two states which provide a framework for the conduct of both governments with respect to investment protection for each other's nationals. Mainly, BITS form parts of larger trade agreements between pending states.

Both treaties guarantee investors from contracting countries fair and equitable treatment, protection against expropriation, and free transfer of funds. Incorporates provisions for arbitration concerning disputes arising out of direct investment between investors and host countries, often under the International Centre for Settlement of Investment Disputes.[1]

What are Bilateral Investment Treaties (BITS)?

BIT is known as the bilateral and investment treaties. Overall, BITS may be defined as treaties between two states, encouraging investors of one state to invest in the territory of another state and protecting the interests of these investors. BITS must provide the following provisions in most cases:

• Just and Equitable Treatment: This, in turn, assures fair, constant, and reasonable treatment to investors, shunning arbitrary or discriminatory means;
• Most-Favoured Nation Treatment and National Treatment: Foreign investors shall not only be given equal treatment with domestic investors but also be accorded with whatever is the best treatment with anybody else from a foreign country;
• Expropriation: BITS prohibits the host state from expropriating foreign investments without proper legal procedure, and compensation must, in addition, always be reasonable and fair;
• Dispute Resolution Procedures: Often included in BITs, investor-state dispute resolution (ISDS) allows investors to file claims against host governments in front of international courts, like the International Centre for resolution of Investment Disputes (ICSID).[2]

By encouraging foreign investors to make investments in a state, BITS help the economy grow and progress completely.[3]

These treaties are essential for countries like India to draw in foreign direct investment (FDI) since they foster investor-friendly conditions while balancing domestic concerns. International investment relations are based on the legal framework created by BITs, which gives investors doing business in other countries protection and recourse.[4]

What is the Purpose of BITS in Promoting International Investment?

Bilateral Investment Treaties (BITs) are treaties that seek to create a cooperative environment for investments and generally provide that contracting states shall offer fair and equitable treatment, preclude expropriation, and provide channels through which disputes can be resolved, primarily under the International Centre for Settlement of Investment Disputes. 

The core purposes of BITS in promoting international investment are as follow:

• Legal Protections for Investing: By providing protections including equitable treatment, dispute resolution procedures, and provisions against expropriation, BITs create a predictable legal framework. These clauses lessen the risks for international companies thinking about investing in India.
• Development of the Economy and Inflow of Capital: BITS help India's economy thrive by facilitating investments. In addition to capital, FDI inflows bring state-of-the-art technology, managerial skills, and adoption of global best practices, collectively contributing to long-term job generation and industrial growth.
• Increased Confidence-building Measures for Investors: Clauses such as investor-state dispute settlement and national treatment develop investor confidence through ensuring fair treatment of investments and impartial settlement of disputes.
• Building Inter-Border Relations: By encouraging mutual trust and collaboration in investment-related matters, BITS strengthen bilateral ties. Consequently, this promotes commerce, business alliances, and wider diplomatic relations.
• Enhanced Credibility of the Policy: Signing BITS shows emerging economies like India that they are committed to fostering an environment that is favourable to investors. It positions India as a major destination for foreign direct investment (FDI) in India by highlighting its goal to conform to international standards and integrate into the global economy.
• Dispute Resolution Mechanisms: They create the procedure to resolve disputes arising between investors and host states before international arbitration, thereby ensuring a neutral entity outside the host country's legal system.
• Attracting Foreign Direct Investment: Some researchers have found a positive relationship between BITs in terms of FDI inflows, as such treaties express the nation-state's commitment to protect foreign investments, and thus, are useful to investors.

However, it remains in dispute whether BITS nourishes FDI. While some studies have argued that BITS can instigate an increase in FDI, if they are not supplemented with firmly entrenched domestic policies and institutions, their contribution will turn out to be insignificant. Besides that, concerns about the constraints that BITS can impose on regulatory autonomy in host countries-especially in the fields of environmental protection and public health have been raised.

The BITS are mostly intended to enhance the international investment climate through a mix of legal protections, dispute resolution mechanisms, and confidence-boosting measures. In that light, BITS perform a relative function but are affected significantly by broad economic and institutional features in host countries.[5] 

Landmark Judgments on Bilateral Investment Treaties

1. Dabhol Case[6]:

Through its Dutch subsidiary, the American company Enron invested in India in order to construct and run a power plant there with the express purpose of selling electricity there. The Maharashtra government then attempted to halt the project by insisting that a non-competitive bidding process be employed. After that, Enron invoked the Dutch-India BIT's arbitration clause, which led to India having to make a substantial payment.[7]

2. White Industries Australia Limited Vs. India[8]:

In 2011, Coal India Limited of India entered into a long-term agreement with White Industries, an Australian mining company, for the provision of vital equipment for coal mine development near Piparwar in Bihar. A dispute arose, dealing with bonus payments, penalty payments, and the quality of coal extracted. In this case, the award was against India based on India's crushing means to its Australian investor, thus breaching its terms and conditions to the India-Australia BIT. This case brought new standards in BIT law such as the 'effective means' clause that would enable the investor to seek protection under a BIT. However, White Industries faced delays enforcing the decree for almost ten years due to the now infamous delays in the Indian Judicial. The White Industries decision was very significant for India because in many ways it sent out a clear and stark message to India that any kind of expropriation of an investment or denial of justice under a BIT of which India is a party, the concerned investor would be able to appeal for an arbitral remedy. It would show that India can no longer afford the luxury of being careless about its administration and legislative systems when pursuing foreign investments.

Emerging Trends in Reforming Bilateral Investment Treaties[9]

• Reforming Investment Treaties with a Focus on Sustainability: Homelands are presently reforming IIA by issuing treaties with guidelines in support of sustainable investment, repealing outdated BITs, and holding discussions on multilateral ISDS reform.
• Declining Old-Style Treaties: Terminations have outpaced new treaties for the third consecutive year with a considerably diminished number of intra-EU BITs. However, the field remains rife with old generation IIAs.
• Urgent Need for Climate-Compatible IIAs: The presence of older treaties and ISDS claims hastens the urgency needed for stronger investment treaty reforms, with UNCTAD advocating for an IIA framework that supports the global energy transition.

Conclusion

Bilateral Investment Treaties form an important part of India's strategy to attract FDI into India to catalyse economic growth. They provide a robust legal framework for the protection of foreign investors, promote cross-border interaction, and improve India's appeal for global investment.

India's evolving BITS framework displays its commitment to developing an environment friendly to investors, all while giving due regard to domestic priorities; by addressing existing challenges, therefore, India can assert itself as a leading global destination for foreign direct investment in the global landscape.

[1] GEORGETOWN LAW LIBRARY, https://guides.ll.georgetown.edu/c.php?g=371540&p=4187393#:~:text=Bilateral%20Investment%20Treaties%20(BITs)%20establish,agreement%20between%20the%20contracting%20states (last visited Jan, 28, 2025).

[2] SIDLEY, https://www.sidley.com/en/us/services/global-arbitration-trade-and-advocacy/investment-treaty-arbitration/sub-pages/the-basics-of-bilateral-investment-treaties/ (last visited Jan, 28, 2025).

[3] Prateek Bagaria and Vyapak Desai, Bilateral Investment Treaties and India (Jan. 28, 2025, 9:45 PM), https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Bilateral_Investment_Treaties_and_India.pdf

[4] Maheshwari & Co., Understanding Bilateral Investment Treaties (BITs) And Their Impact On FDI In India (Jan. 28, 2025, 9:50 PM), https://www.mondaq.com/india/inward-foreign-investment/1573388/understanding-bilateral-investment-treaties-bits-and-their-impact-on-fdi-in-india

[5] DR. THARANATH & PRIYA A. JAGADISH, A CRITICAL ANALYSIS OF ECONOMIC BENEFITS OF BILATERAL INVESTMENT TREATIES 78 (2020)

[6] Maharashtra Power Development v. Dabhol Power Company and Ors., [2003]48SCL135(CLB)

[7] Sundeep Khanna, Backstory: The Dabhol conspiracy and Enron's India misadventure, CNBC TV 18 (Jan, 28, 2025, 10.00 PM), https://www.cnbctv18.com/energy/backstory-the-dabhol-conspiracy-and-enrons-india-misadventure-13186432.htm

[8] White Industries v. Republic of India, IIC 529 (2011)

[9] UN Trade and Development, https://investmentpolicy.unctad.org/publications/1285/trends-in-the-investment-treaty-regime-and-a-reform-toolbox-for-the-energy-transition (last visited Jan.28, 2025).

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On February 24, 2025, the Supreme Court of India declined to entertain a Public Interest Litigation (PIL) seeking to protect Hindus in Bangladesh from alleged violence against minority communities. The petition, filed by Rajesh Dhanda, the Chairman of Bhagwan Jagannath Rath Yatra Mahotsav Committee, Ludhiana, also Vice Chairman of the ISKCON Mandir Steering Board, requested the Court to intervene in the matter.

Key Points of the Supreme Court's Judgment:

• Non-Interference in Foreign Affairs:
  • The bench, comprising Chief Justice Sanjiv Khanna and Justice Sanjay Kumar, refused to intervene in the affairs of Bangladesh, stating that it pertained to foreign relations and internal issues of another country.
  • CJI Sanjiv Khanna remarked: “It pertains to foreign affairs... how can this court comment upon the affairs of another country? It would be so odd if this Court interferes with another country, that too a neighbour!"
• Petitioner’s Withdrawal of PIL:
  • Following the Court's remarks, Senior Advocate Mukul Rohatgi, representing the petitioner, withdrew the PIL, agreeing to the Court’s advice to approach the Government of India for relief.
  • The Court recorded that the petition was dismissed as withdrawn.
• Petitioner's Requests:
  • The petitioner sought the extension of the deadline for submitting applications for Bangladesh-fled Hindusseeking Indian citizenship.
  • He also requested aid and assistance for Hindu minorities in Bangladesh from the Ministry of External Affairs (MEA) and Ministry of Home Affairs (MHA) via the Indian High Commission in Bangladesh.
  • Additionally, the petitioner urged the Government of India to create global pressure on Bangladeshthrough International Law to prevent the ongoing atrocities against minorities.

Court's Refusal:

• The Court maintained that such issues were related to the foreign policies and internal matters of a sovereign country, thus falling outside its jurisdiction.
• The Supreme Court's decision highlighted its cautious approach in interfering with foreign affairs, particularly with a neighboring country, which is a matter better suited for diplomatic channels.

Case Title : RAJESH DHANDA Versus UNION OF INDIA MINISTRY OF EXTERNAL AFFAIRS AND ORS| W.P.(C) No. 153/2025

Attachment:

On February 24, 2025, the Supreme Court of India delivered a judgment, overturning the acquittal of Balveer Singh in the case of the murder of his wife. The Court ruled that the testimony of the accused’s seven-year-old daughter was both credible and admissible, making her evidence crucial in the conviction.

This ruling delves into the complex issues surrounding child witness testimony, offering clear guidelines on how such evidence should be treated by courts in India. The judgment sets a precedent regarding the competency of child witnesses, the potential for tutoring, and the admissibility of their evidence even without corroboration, provided the testimony is reliable.

Key Takeaways From the Judgment

• The Competency of Child Witnesses
  “The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and their evidence cannot be rejected outrightly.” The Supreme Court made it clear that a child is competent to testify if they can understand the questions posed and provide rational answers, as per Section 118of the Evidence Act.
• Preliminary Examination by the Trial Court
  “Before the evidence of the child witness is recorded, a preliminary examination must be conducted by the Trial Court to ascertain if the child-witness is capable of understanding the sanctity of giving evidence and the import of the questions that are being put to them.” The Trial Court must ensure that the child witness understands their duty to speak the truth and can provide coherent responses.
• Recording of Demeanour and Evidence
  The Court emphasized that the demeanour of the child witness during the deposition and cross-examination must be recorded. If the child’s evidence inspires confidence and is coherent, it may form the basis of a conviction without the need for corroboration. If there are doubts, however, the Trial Court must record whether the testimony appears to be voluntary or influenced by others.
• Reliability of Child Witness Testimony
  “There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered.” The Supreme Court held that if the testimony is credible, consistent, and has been scrutinized carefully for possible tutoring or discrepancies, it can be relied upon, even without additional evidence.
• Handling of Tutored Testimony
  “Child witnesses are considered dangerous witnesses as they are pliable and liable to be influenced easily.” The Court cautioned that courts must be vigilant against the possibility of tutoring or influencing the child’s testimony. If the evidence suggests tutoring, the Court can choose to discard it, especially if there are improvised details or contradictions in the testimony. The Testimony of a child witness is unreliable only if substantial evidence shows it was fabricated or influenced by external factors.
• Conclusion on the Case at Hand
  The Supreme Court reviewed the case of Balveer Singh, who was accused of murdering his wife and later cremating her body in secret.
• The Trial Court had convicted him under Sections 302 (murder), 201 (causing disappearance of evidence), and 34 (common intention) of the Indian Penal Code (IPC), but the High Courthad acquitted him. Upon reviewing the seven-year-old daughter’s testimony, which recounted how she saw her father assaulting her mother, the Supreme Court overturned the acquittal.
• The Court found no credible evidence of tutoring or delay in her statement that would undermine her reliability.The Court concluded that her testimony, though coming from a child, was consistent, coherent, and reliable, thereby leading to the accused’s conviction.

Detailed Summarization of the Supreme Court’s Ruling

• Competence of Child Witnesses
  According to Section 118 of the Evidence Act, a child witness is competent if they can understand the nature of the questions posed and provide rational answers. Courts should not reject child testimony solely based on age.
• Preliminary Examination and Demeanour
  Courts are required to ensure that a child witness understands the sanctity of testifying and is capable of answering questions in a coherent manner. The demeanour of the child during the testimony must be observed and recorded to ensure no undue influence is exerted.
• Admissibility Without Corroboration
  The Supreme Court clarified that there is no blanket requirement for corroboration of a child witness’s testimony if it is credible, even if the child’s testimony was not corroborated by other evidence.
• Caution on Tutoring
  The Court emphasized that child witnesses are particularly vulnerable to tutoring. The evidence of a child witness may be discarded if there is a clear indication of influence or fabrication.

Background of the Case

• The case revolved around Balveer Singh, who was accused of murdering his wife, cremating her body in secrecy, and subsequently misleading authorities. The Trial Court convicted him, but the High Court of Madhya Pradesh acquitted him, prompting the State to appeal to the Supreme Court.
• The key issue before the Supreme Court was the reliability of the testimony of the couple’s seven-year-old daughter, Rani, who was the only eyewitness to the murder. Her testimony described in detail the assault by her father on her mother and the subsequent cremation of her body.
• Despite the High Court’s concerns over the delay in recording her statement, the Supreme Court found her testimony consistent, credible, and untainted by tutoring.
• The Court reaffirmed that child witnesses, if properly examined for competence, can provide critical evidence in criminal trials.

Case Title: THE STATE OF MADHYA PRADESH VERSUS BALVEER SINGH

Attachment:

The Supreme Court of India has recently examined a significant legal issue regarding the need for a preliminary inquiry before registering an FIR under the Prevention of Corruption Act (PC Act). The Court clarified that a preliminary inquiry is not a mandatory requirement before filing an FIR against a public servant accused of corruption. The Court emphasized that although a preliminary inquiry is often desirable, it is neither a vested right of the accused nor a pre-requisite for filing an FIR. This judgment is a crucial development in the interpretation of the Criminal Procedure Code (CrPC) concerning corruption-related offenses.

Key Developments in the Case

• Case Background:
  The State of Karnataka had filed an appeal in the Supreme Court after the High Court of Karnataka quashed an FIR against a public servant involved in a case concerning disproportionate assets under the PC Act. The FIR was registered under Sections 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988.
• Issue at Hand:
  The key question before the Supreme Court was whether conducting a preliminary inquiry was mandatory before registering an FIR in a corruption case, or if the source information report could serve as an adequate substitute for such an inquiry.

Supreme Court's Observations and Ruling

• Preliminary Inquiry Not Mandatory:
  The Court noted that preliminary inquiries are not a sine qua non (essential condition) for registering an FIRagainst a public servant accused of corruption. The Court observed, “It is perspicuous that conducting a preliminary inquiry is not sine qua non for registering a case against a public servant who is accused of corruption. While preliminary inquiry is desirable in certain categories of cases, including those under the PC Act, it is neither a vested right of the accused, nor a mandatory pre-requisite for registration of a criminal case.”
• Purpose of Preliminary Inquiry:
  The purpose of a preliminary inquiry, according to the Court, is not to verify the truth of the information received, but simply to ascertain whether it discloses the commission of a cognizable offense. The Court explained, “The purpose of a preliminary inquiry is not to verify the veracity of the information received, but merely to ascertain whether the said information reveals the commission of a cognizable offence.”
• Discretion of Investigating Agency:
  The Court highlighted that the necessity for a preliminary inquiry depends on the facts and circumstances of each case. The investigating agency has discretion to determine whether such an inquiry is needed based on the details provided in the source information report.
• Relying on Source Information Report:
  The Court ruled that in this particular case, the source information report was detailed enough to serve as a preliminary inquiry. This report provided substantial information about the discrepancies in the assets and incomeof the accused. Therefore, the Court upheld the registration of the FIR, restoring the case against the respondent public servant.

Court's Verdict and Final Decision

• The Supreme Court set aside the High Court’s decision, restoring the FIR against the accused public servant. The Court reaffirmed that preliminary inquiries are not mandatory if the information already reveals the commission of a cognizable offense.
• Affirmation of Previous Judgment:
  The Supreme Court also referred to a previous judgment in Central Bureau of Investigation v. Thommandru Hannah Vijayalakshmi, which had clarified that preliminary inquiries are not compulsory when the information discloses a cognizable offense. The Court observed that the decision in Lalita Kumari v. State of Uttar Pradeshdoes not impose a mandatory requirement for a preliminary inquiry in corruption-related matters, leaving it to the discretion of the investigating agency.

Case Title: STATE OF KARNATAKA VERSUS T.N. SUDHAKAR REDDY

Attachment:

Israel delays the release of 620 Palestinian prisoners, leading to condemnation of Israeli Prime Minister Benjamin Netanyahu of intentionally violating the ceasefire agreement established between both parties. The delay came after Hamas upheld its side of the deal by releasing six Israeli captives in a highly publicized handover, marking the last group of living Israeli captives to be freed under the ceasefire’s first phase.

On February 23, 2025, Israel’s postponement of the Palestinian prisoners’ release sparked intense criticism from Palestinian leaders and families. The delay has been seen as a major setback in the peace process and a violation of Israel's commitments under the Gaza ceasefire agreement, which was supposed to see the mutual release of prisoners in a series of stages.

Hamas Responds to Israel’s Delayed Release

• Hamas's Strong Rejection of the Delay:“Netanyahu’s decision reflects a deliberate attempt to disrupt the agreement, represents a blatant violation of its terms, and shows the occupation’s lack of reliability in implementing its obligations.”
  • Hamas quickly rejected Israel’s postponement, accusing the Israeli government of undermining the ceasefire agreement. The release of 620 Palestinian prisoners, which was initially scheduled for Saturday, was delayed under the pretext that handing over the prisoners was associated with "humiliating" ceremonies.
  • Hamas leaders, including Ezzat El Rashq, a member of Hamas’s political bureau, issued a statement accusing Netanyahu of deliberately trying to disrupt the agreement and dismissing Israel’s reasons as false and baseless.
• Netanyahu’s Justification for the Delay:“In light of Hamas’ repeated violations – including the disgraceful ceremonies that dishonour our hostages and the cynical use of hostages for propaganda – it has been decided to delay the release of terrorists that was planned for yesterday [Saturday] until the release of the next hostages is ensured, without the humiliating ceremonies.”
  • Israeli officials, led by Netanyahu, argued that “humiliating” prisoner handover ceremonies, in which Hamas parades the captives before the media, were a stumbling block to the prisoners' release.
  • Netanyahu’s office framed the delay as a necessary response to Hamas’s “disgraceful” use of captives for propaganda purposes. This was a new demand that had not been explicitly mentioned in the ceasefire agreement.

Hamas’s Criticism: Playing Dirty Politics

• Hamas Rejects the Allegations of ‘Humiliation’:“The prisoner handover ceremony does not include any insult to them, but rather reflects the noble humane treatment of them.”
  • Hamas quickly responded, labeling the claims made by Netanyahu as propaganda aimed at avoiding Israel’s obligations. The organization asserted that the handover ceremonies, which involve masked Hamas fightersparading the Israeli captives, were designed to show humane treatment and not to humiliate.
• Hamas Calls for Mediation to Enforce Ceasefire Terms:
  • In its statement, Hamas called on mediating nations, which have been involved in the ceasefire negotiations, to step in and ensure that Israel sticks to the terms of the agreement. Hamas insisted that any delay or stalling tactics would undermine the integrity of the ceasefire.

Palestinian Families Left Waiting in Limbo

• Long Hours of Waiting in Gaza and the West Bank:“We have been sitting in our chairs waiting for many hours, but after many hours, nothing. But what else can we do?”
  • Palestinian families in the West Bank and Gaza had been waiting eagerly for the release of their loved ones, many of whom have been in Israeli prisons for years. The emotional toll on these families was immense as they sat anxiously for hours in anticipation of the arrival of their freed relatives.
  • Khaled Khalil al-Jabarin, an uncle of a detainee, expressed his frustration at the delay, stating:
• Family Members’ Emotional Struggles:“It’s very difficult to wait. We wait for them, to hug them, and see them, but Netanyahu is always stalling.”“God willing, they will be released soon.”
  • Shireen al-Hamamreh, whose brother was among the prisoners scheduled for release, described the emotional toll of the waiting period:
• Other family members, including Fatiha Abu Abdullah, a mother from Khan Younis in Gaza, held onto hope, despite the uncertainty. She remarked that she was certain her loved one would eventually be freed.

Israeli Government’s Position: Ready for Resumption of Hostilities

• Netanyahu’s Warning on Resuming Fighting:“We are prepared to resume intense fighting at any moment, our operational plans are ready... Let there be no doubt – we will complete the war’s objectives entirely – whether through negotiation or by other means.”
  • In a statement issued later that day, Netanyahu emphasized that Israel was prepared to resume military action in Gaza if the situation escalated. Israel had previously focused on eliminating most of Hamas's organized forces but stressed that it would complete its war objectives, whether through negotiation or military means.

US Envoy Remains Optimistic About Ceasefire Deal

• US Special Envoy Steve Witkoff’s Perspective:“We have to get an extension of phase one and so I’ll be going into the region this week, probably Wednesday, to negotiate that.”
  • Despite the tense situation, Steve Witkoff, the US Special Envoy for the Middle East, remained hopeful that the second phase of the ceasefire agreement would proceed. Witkoff reiterated his optimism during a Sunday interview, stating that his team would negotiate an extension of phase one and work toward resuming prisoner exchanges.
• This comment suggested that the US would continue to play a crucial role in facilitating the peace process and pushing for the implementation of the ceasefire terms.

Source: AL Jazeera

Introduction

International investment law (IIL) establishes a broad framework and central basis with considerable importance for governing cross-border investments. For this purpose, treaties, customary international law, arbitration mechanisms, and local law exist in support of foreign investors and the protection and establishment of a stable investment climate. Given their desire to attract foreign direct investment (FDI), developing countries have long engaged with extensive investment law in finally entering into many BITs and involvement in multilateral treaties such as the International Centre for Settlement of Investment Disputes (ICSID).[1] Their impact through IIL, however, is still disputed; while IIL encourages economic growth by attracting FDI, it often cuts back governmental powers on dictating certain approaches to development in favor of aid to investors, subjecting developing states to sad predicaments.[2]

Role of International Investment Law in Attracting FDI

1. Legal Certainty and Investor Protection

Investment treaties, specifically BITs, provide fundamental protections to an investor, including:

• Fair and Equitable Treatment: Ensuring that investors do not face any arbitrary and discriminatory measures.[3]
• Protection from Expropriation: Compensation must be provided to investors whenever their assets are nationalized or expropriated.[4]
• Investor-State Dispute Settlement (ISDS): The investor may launch proceedings directly before an international tribunal against the host state.[5]

With these protections in place, the investor knows that their investment will be secure, providing a boost to FDI.

2. Economic Growth and Development

FDI provides decreed countries with financial inflows, cutting-edge technologies, and managerial acumen to spur economic growth, job creation, and increased productivity. In fact, countries such as China, India, and Brazil have maximized the advantage of their expansion in the manufacturing and service sectors due mostly to FDI, accomplishing robust economic changes.[6]

3. Increased Global Integration

By adhering to the agreed international investment standards, developing countries get access to global markets, greatly improve prospects for trade, engage with enhanced economic diplomacy, and promote international partnerships.[7]

Impact of International Investment Law on Developing Countries

1. Attraction of Foreign Direct Investment (FDI)[8]  

• International Investment Agreements serve to provide guidelines to be used to attract foreign direct investment. They do this by establishing a more stable and predictable legal environment, arguably the main reason for international agreements.
• FDI treaties usually provide some combination of fair and equitable treatment, protection against expropriation, and investor-state dispute settlement mechanisms.
• These assurances may thus make a developing country more palatable to foreign investors by alleviating the risks arising from political instability and random government actions.
• But studies have suggested that while IIAs do contribute to the attraction of FDI, other determinant premises exist. Factors like the size of the market, the general economic state, and the quality of infrastructure will almost definitely play an important role in the final decision as to where an investment or whom to invest in.

2. Influence on Domestic Governance[9]

• The relationship that exists between international investment law and domestic governance within developing countries is complicated. On one hand, the adoption of IIAs can promote better governance in the form of transparency, the rule of law, and clearly articulated regulatory frameworks.
• At the same time, evidence indicates that the effect of investment treaties on domestic governance is quite limited.
• This study found little evidence to suggest that such treaties produce any real, significant change in domestic laws, institutional structures, or processes of policy-making; rather, their infrequent use could be construed as a suggestion for further investigation.

3. Challenges to Regulatory Sovereignty[10]

• At the same time that IIAs target the protection of investors from various kinds of disputes with the host states, seeking redress through these IIAs may also undermine the regulatory capacity of the governments of developing countries. Investor-state dispute settlement permits investors to contest domestic laws and regulations that they believe to be detrimental to their investments.
• This may drive a significant fiscal liability on the host state and make governments reluctant to create policy in specific fields such as environmental protections or in relation to public health because they fear possible litigation.
• The cohesion between investor protections and state sovereignty remains a contentious focus in international investment law.

4. Economic Reforms and Market Liberalization[11]

• International investment law is a bit of a catalyst for economic reforms in developing countries.
• For example, the recent enactment in Ethiopia of legislation allowing foreign banks to operate in its territory expresses a tiptoe into economic liberalization to attract foreign investments and boost development.
• However, such reforms are also prone to questions regarding their potential limits on domestic industries' ability to compete with foreign entities and on the loss of local control over key economic sectors.

5. Sustainable Development and Environmental Considerations[12]

• The merging of sustainable development goals with international investment law is gradually gaining attention.
• There has begun an increasing call from developing countries to balance investment promotion with environmental protection. For example, it has been suggested that countries should have the right to access International Monetary Fund (IMF) reserves to finance biodiversity projects.
• These and similar measures seek to provide fiscal liquidity for environmental projects in a manner that does not aggravate debt burdens, thus giving added meaning to the interaction of investment law with sustainable development.

Negative Impacts of International Investment Law on Developing Countries

1. Loss of Sovereignty and Policy Space

• Investment treaties, by their very design, almost always restrict governments' ability to exercise regulatory power in the public good. Environmental protection, labour rights, or public health policies could be challenged by foreign investors whenever it threatens their expected profit.[13]
• For instance, many ISDS claims have been brought against a number of developing countries as a consequence of their implementation of policies giving priority to domestic interests over those of foreign investors. In Philip Morris v. Uruguay[14], Philip Morris sued Uruguay by alleging that its anti-smoking regulations harmed its investments. Uruguay ended up winning the case; however, it had to incur substantial legal fees.

2. Financial Burden of Investor-State Dispute Settlement (ISDS)

• ISDS cases are highly expensive, with legal fees and damages often in the million-dollar range. Thus, developing nations are at a disadvantage vis-à-vis rich multinational corporation.[15]
• For example, countries such as Venezuela, Ecuador, and Argentina have received multiple ISDS claims with orders for compensation amounting to billions of dollars. Such payouts lead to poor development outcomes by diverting funds from essential public services such as education, health care, and infrastructure.

3. Environmental and Social Risks

• The inflow of large-scale foreign investments in mining, oil, and agribusiness in various developing countries has led to environmental degradation, displacement of local communities, and labour exploitation. While investment treaties highlight investor rights, these treaties sometimes tend to forget corporate accountability and environmental standards.[16]
• Investors, for example, in Chevron v. Ecuador[17] resisted attempts by Ecuador to hold it accountable for environmental damages, sponsoring investment treaties to contest local judicial decisions.

Conclusion

International investment law holds the scope to fundamentally shape the economic and regulatory structures within developing countries. While it creates new opportunities to attract foreign investments and fortify economic growth, it brings in the challenges surrounding regulatory sovereignty and sustainable development. The delicate balance that is needed in navigating these challenges will have to be maintained by developmental countries in order to reap the benefits of international investment law while preserving the scope for domestic policy formulation and development objectives.

[1] ICSID, Investment Treaties (Feb. 10, 2025, 10:30 PM) https://icsid.worldbank.org/node/20271.

[2] COLUMBIA CENTRE OF SUSTAINABLE INVESTMENT, Primer on International Investment Treaties and Investor-State Dispute Settlement (Feb. 10, 2025, 11:30 PM) https://ccsi.columbia.edu/content/primer-international-investment-treaties-and-investor-state-dispute-settlement.

[3] Ying Zhu, Fair and Equitable Treatment of Foreign Investors in an Era of Sustainable Development (Feb. 10, 2025, 11:50 PM) https://digitalrepository.unm.edu/cgi/viewcontent.cgi?article=4009&context=nrj&utm.

[4] NORTON ROSE FULBRIGHT, https://www.nortonrosefulbright.com/en/knowledge/publications/8014c6b7/frequently-asked-questions-about-investor-state-dispute-settlement (last visited Feb, 11, 2025).

[5] GEORGETOWN LAW, Bilateral Investment Treaties (BITs) (Feb. 10, 2025, 12:30 PM) https://guides.ll.georgetown.edu/c.php?g=371540&p=4187393&utm.

[6] COLUMBIA CENTRE OF SUSTAINABLE INVESTMENT, Primer on International Investment Treaties and Investor-State Dispute Settlement (Feb. 10, 2025, 11:30 PM) https://ccsi.columbia.edu/content/primer-international-investment-treaties-and-investor-state-dispute-settlement.

[7] Jérémie Bertrand, Joseph Lemoine, Dan Negrea, and Caroline Perrin, Attracting foreign direct investments (Feb. 10, 2025, 12:30 PM) https://www.atlanticcouncil.org/in-depth-research-reports/report/attracting-foreign-direct-investments/.

[8] UN TRADE & DEVELPOMENT, The Role of International Investment Agreements in Attracting Foreign Direct Investment to Developing Countries (Feb. 10, 2025, 1:30 PM) https://unctad.org/publication/role-international-investment-agreements-attracting-foreign-direct-investment.

[9] Jonathan Bonnitcha & Zoe Phillips Williams, The impact of investment treaties on domestic governance in developing countries (Feb. 10, 2025, 2:30 PM) https://onlinelibrary.wiley.com/doi/full/10.1111/lapo.12234.

[10] ADVOCATE TANWAR, https://advocatetanwar.com/the-impact-of-international-investment-law-on-investor-state-disputes/ (last visited Feb, 11, 2025).

[11] Dawit Endeshaw, Ethiopia passes law to open banking to foreign competition (Feb. 10, 2025, 3:30 PM) https://www.reuters.com/business/finance/ethiopia-passes-law-open-banking-foreign-competition-2024-12-17/.

[12] Oliver Griffin, Let countries access IMF-held reserves to protect nature, Mexico's Barcena says (Feb. 10, 2025, 3:30 PM) https://www.reuters.com/business/environment/let-countries-access-imf-held-reserves-protect-nature-mexicos-barcena-says-2024-10-30/.

[13] Elisa Morgera & Thierry Berger, Better Understanding the Negative Impacts of International Investment Law For Human Rights and the Environment says (Feb. 10, 2025, 4:30 PM) https://oneoceanhub.org/better-understanding-the-negative-impacts-of-international-investment-law-for-human-rights-and-the-environment/.

[14] Philip Morris Asia Limited v. The Commonwealth of Australia, UNCITRAL, PCA Case No. 2012-12.

[15] Armand de Mestral, The Impact of Investor-state Arbitration on Developing Countries (Feb. 13, 2025, 4:30 PM) https://www.cigionline.org/articles/impact-investor-state-arbitration-developing-countries/.

[16] Elisa Morgera & Thierry Berger, Better Understanding the Negative Impacts of International Investment Law For Human Rights and the Environment says (Feb. 10, 2025, 4:30 PM) https://oneoceanhub.org/better-understanding-the-negative-impacts-of-international-investment-law-for-human-rights-and-the-environment/.

[17] Chevron Corporation and Texaco Petroleum Corporation v. Ecuador (II), PCA Case No. 2009-23.

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Introduction

Under Article 12[1], International Law guarantees the right to privacy as a fundamental human right protected and guaranteed under the Universal Declaration of Human Rights (UDHR). But, in the contemporary interconnected world, the right to privacy is becoming a myth in cyberspace because of the unprecedented challenges that have been faced at both the global level and the national level, particularly in the context of cyber espionage.  With the advancement of technologies and the expansion of the digital world, unauthorised access to personal and sensitive data has become a real threat to individual freedoms and national security, resulting in the offences of stealing the right to privacy increasing daily. The shifting of the trend to the digital world or the meta world has made personal data very vulnerable, easy to exploit and easy to access without any authority, which is known to be a breach of data privacy and leads to exploitation, and this is what results in Cyber Espionage. And this article will explore how it has become a threat to basic human rights.

The Cyber Espionage

Cyber Crimes, as the name suggests, are crimes committed on the Internet Web. There is an abundance of cybercrimes, which include identity theft, cyber fraud, cyber terrorism, cyber espionage, and the list goes on. Firstly, let us understand the importance of the meaning of privacy, although it does not have any specific definition, it could be understood with layman's language as a person’s right to control the usage mechanism of their data.

Espionage, which means spying, has existed for a very long period, and it has continued to persist and evolved with time, it is also referred to as the “World’s Second Oldest Profession[2]”, and the evolution of spies has taken place from time to time with the advancement of the technologies. At first, there came Electronic Espionage, which means “an unauthorised cyber-acquisition of private data, often by state-sponsored organisations or advanced persistent threats (APTs), is known as electronic espionage[3]”.  Then came Cyber Espionage, which is the advanced version of Electronic Espionage. The prefix Cyber Espionage can be understood as cyber-spying, in which there is “an attempt to access sensitive, personal and confidential data or proprietary information without the knowledge or consent of an owner[4]” of that information for the motive of economic gain or getting an advantage in the competitive world of spying done for political reasons.

Cyber Crime is a genius, and Cyber Espionage is a species, but a dangerous one, that can start a cyber war and could be used as a weapon deployed by one nation against another because of the clattered availability of information, either by individuals, businesses, or government officials. The availability of other’s data indeed is a growing concern, and the reason behind the availability of private individual data is “third party consent to retrieve data of e-mails, given access to the third party in the phone, or laptops, or computers, also include social media, GPS tracking, browsing history, acceptance of cookies, and in many other ways.[5]”

Tactics involved in the cyber espionage

The common tactics or methods used by the attackers to gather information include “phishing attacks. Advanced Persistent Threats (APTs), Malware and Spyware.” And their targets vary from corporations, governmental agencies, and individuals to critical infrastructures,

Moreover, these tactics could vary as the technology is getting advanced. Some have been discussed in the following manner, but there is a possibility there is more than these mentioned tactics. But the most common and important tactics have been discussed below:

1. Exploiting Software & Website Vulnerabilities: Attackers leverage unpatched security flaws and weak authentication mechanisms to gain unauthorised access.
2. Spear Phishing Attacks: Targeted emails trick individuals into revealing sensitive data or granting elevated network privileges.
3. Supply Chain Attacks: Cybercriminals infiltrate less-secure third-party vendors to compromise the primary target.
4. Malware, Trojans & Worms: Malicious software is used to steal data, disrupt operations, or create backdoors for future intrusions.
5. Compromising Software Updates: Attackers inject malware into legitimate updates for commonly used third-party applications.

Steps Cyber Espionage takes to Access the Data

The Hacker's access to the data involves various steps, herein we will discuss the most common steps used by the hacker for unauthorised access to the data in the following manner:

1. Target Identification: It involves selecting an individual of an organisation or a system for the attack that is deemed vulnerable and valuable.
2. Information Gathering: For information gathering, the hacker could use the collecting intelligence via OSINT, social engineering, or reconnaissance tools.
3. Finding Vulnerabilities: It involves identifying weak points in software, networks, or human security, for instance, using third-party access granted when an app is installed.
4. Infiltration: Exploiting weaknesses using phishing, malware, zero-day exploits, or supply chain attacks.
5. Executing Objectives: The main and where the hacker accesses the data with the person's consent, i.e., involves offences like Data theft, surveillance, sabotage, or system manipulation.
6. Clearing Tracks: Erasing logs, using encryption, and deploying self-destructing malware.
7. Maintaining Access: Implanting backdoors and adapting to security countermeasures.

Lastly, it involves storing the data, whether to sell it to the person or authority interested or use it to blackmail the target party for monetary gain.  

The main reason behind this is mostly the monetary gain, where the offender can sell that information to any country for money in return, and it could be counted as a part of cyber terrorism when it is done with military operations. There is no regulatory body to regulate the information available in the metaverse. That is the main reason Cyber Espionage is a threat to privacy. Another rising concern is that, unlike traditional criminal offences, it is very difficult to identify the offender. “Whether the criminal is a hacker or the nation-state.[6]”

This article will be an exploratory study on the effect of cyber espionage and how it has been a threat to the right to privacy in the International legal framework, with the help of international cases, it will try to understand the impact on the same and will also cover the Indian perspective on this burning issue.

Cyber Espionage: A Rising Threat

The major concern that has risen with Cyber Espionage is that there could be an intention of accessing data to have cyber terrorism or start cyber-warfare by interfering with law enforcement bodies or harm the opponent or other nations, as their focus could be to attack governmental agencies, institutions like education or research centres and to access the confidential data of intellectual properties.

Main targets of the Cyber Espionage

Recently, it has been witnessed that hackers have tried to access data from official websites in many countries. It could be easily said that the main target of cyber espionage is innocent citizens who threaten governmental officials.

Hence, their main targets can be easily categorised as:

1. Firstly, for political reasons, the main target in the present time is government agencies, as these organisations have sensitive data that could affect national security and foreign policies and contain the plans regarding military operations, it became the main goal of the cyber espionage to get the unauthorised data of the countries.
2. After that, the other major target is big corporations from fields like pharmaceutical, aerospace, and technology. In this, they could use insider trading-like offences, which lead to playing an important role for a competitor. This leads to results in damaging the company’s market reputation, can advantage the competitors, and majorly leads to financial losses to the company as well as affecting the economy of the nation.
3. In the contemporary world, they are also targeting Intellectual information/ intellectual properties; by getting the important data disclosing intellectual properties, they could easily blackmail the person for the money to not disclose the information, which could be very confidential.  

These could lead to two main outcomes in society: one is cyber espionage, which is purely for monetary reasons, and the other is cyber warfare, behind which there is a possibility of involvement of the nation also.

There have been many various instances of cyber-espionage reported worldwide, which directly raise questions on the protection of the personal data of individuals across the globe. According to the report of 2019 by NATO headquarters, & the U.S. Military, “there are now more than 100 daily cyber intrusion attempts on the headquarters and approximately 10 times more intrusions attempt on the US military.[7] ”

 The first documented cases were reported in the year 1986-1987[8], was executed by a German who interfered with the network of American Defence, including their universities, contractors and military bases and gathered the confidential information and sold it to the Soviet KGB.

The rise of cyber spying was reported during the Covid- 19 or in pandemic duration, especially reported in India. The main reason behind this rise was people were forced to stay at home instead of work from home and conducted meetings through online platforms like Zoom, which made information and data vulnerable to hackers.

The main nations behind this cyber espionage are Russia, China, Iranian, and Pakistan. to attack other nations, as recently it has been reported that Russia attacked Ukrainian Military devices used in the operation through the cyber espionage group Turla in the year 2024, and there was another instance reported in the same year that China is doing Cyber spy on the US government. 

To understand the rise of the threat, there have been some real examples of cyber espionage discussed, which have been reported at the global level:

1. The 2013 NSA Data Breach[9], Edward Snowden disclosed classified information revealing extensive U.S. surveillance programs, sparking a global debate on privacy and government overreach. This revelation raised crucial questions about national security and the ethical justification for mass surveillance, fuelling discussions on the delicate balance between security and individual rights in the digital age.
2. Between November 2018 and 2021, the hacker group known as RedCurl[10] Conducted over 30 corporate espionage attacks across multiple countries, including the “United Kingdom, Germany, Canada, Norway, Russia, and Ukraine[11]”. Utilising custom-developed malware in conjunction with advanced social engineering techniques, RedCurl successfully infiltrated numerous companies to exfiltrate sensitive data. Their operations compromised business operations and exposed confidential information across various industries.
3. In 2020, U.S. organisations and government agencies fell victim to a nation-state cyberattack linked to a massive supply chain compromise[12]. Security researchers discovered that attackers had implanted a backdoor in SolarWinds' Orion IT monitoring software, affecting up to 18,000 customers, including key U.S. government agencies.
4. FireEye, a cybersecurity firm and one of SolarWinds' 300,000 customers[13], was the first to disclose the attack, revealing that it was part of a sophisticated nation-state operation. Multiple reports attributed the breach to APT29 (Cozy Bear), a Russian state-sponsored hacking group. The attack highlighted the vulnerabilities of supply chain security, emphasising the need for stronger cybersecurity measures in critical IT infrastructure.

Human Rights & Cyber Espionage

Human rights principles are crucial in the context of cybercrime investigations, particularly concerning cyber espionage, impacting various rights such as “privacy, fair trial, freedom of expression, and protection of property”. States have the responsibility to respect, protect, and fulfill these rights of an individual which are also protected as a fundamental right, so that a state can ensure that domestic legislation complies with human rights standards.

Same, in the present time human rights also work to regulate and protect the individual data that extend to the digital space also. It is commonly denoted as digital privacy, and in the contemporary world the, “right to privacy of users of digital media raises such concerns for users as unpermitted use of personal information gathered from users.[14]”

However, it violates the various fundamental human rights covered in different charters in international law, which have been discussed below:

1. Article 19[15] of the Universal Declaration of Human Rights (UDHR) recognizes the right to access information but acknowledges that this right is not absolute and may be subject to limitations. These limitations often serve as the foundation for data protection regulations. While non-state actors may seek access to information, it remains the state's responsibility to safeguard privacy rights through appropriate legal restrictions. However, these restrictions must be carefully balanced to prevent unjustified limitations on the fundamental right to access information.
2. Article 8[16] of the European Convention on Human Rights (ECHR) provides broad protection for various human rights, particularly the right to private life, which encompasses a wide range of aspects. This investigation primarily examines the right to privacy, which is safeguarded as an integral part of the broader right to private life. Under the same article, the right to private life also encompasses and creates an umbrella that protects personal data.
3. Article 12[17] of the Universal Declaration of Human Rights (UDHR) protects individuals from arbitrary interference with privacy, family, home, or correspondence, and from attacks upon their honour and reputation. It asserts that everyone has the right to legal protection against such interference or attack[18].
4. The UDHR's Article 12 is highly relevant in the digital age, where nearly every aspect of life leaves a digital footprint[19]. Governments seeking access to this data threaten autonomy, dignity, and basic democratic value. Which is also conferred by “Article 17 of the International Covenant on Civil and Political Rights of 1966[20]”.

States often invoke Article 51[21] of the UN Charter, which recognizes the right to self-defence, to justify measures against cyber espionage. However, cyber espionage typically falls short of the threshold of an 'armed attack' required to trigger this provision. While Article 2(4)[22] of the UN Charter prohibits the use of force against the territorial integrity or political independence of any state, cyber espionage is generally not classified as a use of force under international law. As a result, states must rely on alternative legal frameworks, such as countermeasures, diplomatic responses, and domestic cybersecurity laws, to address and mitigate cyber espionage threats.

Conclusion

As cyber espionage continues to evolve, posing significant threats to privacy and human rights, it is imperative to implement stricter legal and policy measures. Governments must strengthen cybersecurity frameworks, enforce stricter regulations on surveillance practices, and establish clearer international norms to prevent the misuse of digital surveillance tools. Without decisive action, the right to privacy will remain vulnerable to exploitation, jeopardizing democratic values and individual freedoms. A more stringent and accountable approach is necessary to safeguard privacy in the face of escalating cyber threats.

[1] The Right to Privacy. Article 12 of the Universal Declaration of Human Rights (UDHR).

[2] Paul Reynolds, The World's Second Oldest Profession, BBC NEWS (Feb. 26, 2004), https://perma.cc/B9KM-E5E5. 

[3] Mustafa A. O. Abo Mhara, Abdullah A. A. Abdulrahman, Abdulhakim A. S. Baroud, Cyber Attacks And Threats: Study Of The Types Of Cyber Attacks: Hacking, Viruses, Targeted Attacks, And Electronic Espionage, International Journal of Electrical Engineering and Sustainability (IJEES), ISI 2023-2024: (0.557).

[4] Ibid.

[5] Ibid.

[6]Sigholm, J., & Bang, M. (2013). Towards offensive cyber counterintelligence. 2013 European intelligence and security informatics conference. Retrieved from: http://www. ida.liu.se/~g-johsi/docs/EISIC2013_Sigholm_Bang.pdf .

[7]Siobhan Gorman & Stephen Fidler, CyberAttacks Test Pentagon, Allies and Forces, WALL ST.J. (Sept. 25, 2010), http://www.wsj.com/articles/SB10001424052748703793804575511961264943300.

[8] SentinelOne, What is Cyber Espionage, types & Examples,(October 14, 2024), https://www.sentinelone.com/cybersecurity-101/threat-intelligence/cyber-espionage/

[9] What is Cyber Espionage? Types & Examples, https://www.sentinelone.com/cybersecurity-101/threat-intelligence/cyber-espionage/.

[10] The APT Group RedCurl Attack Enterprise Companies, Group-IB Report.

[11] Cyber Espionage, Proofpoint UK (Apr. 8, 2024), https://www.proofpoint.com/uk/threat-reference/cyber-espionage.

[12] Supra note 8.

[13] Gillis, A. S. (2023, March 23). cyber espionage. Search Security. https://www.techtarget.com/searchsecurity/definition/cyber-espionage.

[14] Everyone has the right to freedom of opinion and expression

[15] Right to privacy​​ Everyone has the right to respect for his private and family life, his home and his correspondence.

[16] Supra no. 1.

[17] Ibid.

[18] Ibid.

[19] Article 12: The right to privacy – Digital Freedom Fund. https://digitalfreedomfund.org/digital-rights-are-human-rights/article-12-the-right-to-privacy/

[20] The right to privacy and its protection by the law.

[21]  Supra note 1.

[22]  Id. at art. 2(4).

On February 20, 2025, the Supreme Court delivered a landmark judgment in the case of Vishal Shah v. Monalisha Gupta & Ors., quashing the Magistrate's Order that directed the extradition of a husband residing in the United Statesin a Domestic Violence Act case. The appellant challenged the High Court's decision, which had upheld the extradition order for his non-appearance in court. In its ruling, the Court made several key observations, including the irretrievable breakdown of the marriage and alimony orders. The judgment also clarified that physical presence is not mandatory in Domestic Violence Act proceedings.

Key Observations and Ruling in the Case

No Requirement for Physical Presence in Domestic Violence Proceedings

• The Court emphasized that there is no need for personal presence in Domestic Violence Act proceedings as they are quasi-criminal in nature.
• These proceedings have no penal consequences unless a protection order is violated under Section 31 of the Act.
• “We may observe that as the proceedings under the DV Act are quasi-criminal in nature, thus, there cannot be any justification to require the personal presence of the appellant in these proceedings.” – Justices Pankaj Mithal and Sandeep Mehta.

Extradition Order Quashed

• The Magistrate's Order to initiate extradition was quashed by the Supreme Court. The appellant’s passport had been impounded, preventing him from traveling to India.
• “Consequently, the order of the learned JMFC directing the initiation of extradition proceedings against the appellant as a consequence of his non-appearance, despite being aware of the fact of impounding of the passport of the appellant, is untenable and unsustainable in the eyes of the law.”

Illegal Impoundment of Passport

• The Court ruled that the impoundment of the appellant's passport was unlawful, violating natural justice principles.
• The appellant was not provided an opportunity to be heard before his passport was impounded.
• “This clear violation of the principles of natural justice renders the act of impounding the passport ex-facie illegal.”
• The Court ordered that the appellant’s passport be released within one week.

Irretrievable Breakdown of Marriage

• The Court noted the irretrievable breakdown of the marriage, citing:
  • The couple’s brief cohabitation in the United States.
  • The multiple cases filed by both parties, including allegations of criminal cruelty, restitution of conjugal rights, and domestic violence.
  • Failed reconciliation attempts.
• “The aforesaid facts give us the impression that there was hardly any cordiality or meaningful marital relationship that flowed from the marriage between the parties. It is evident that the relationship between the parties appears to be strained from the beginning and has further soured over the years.”

Alimony Order

• The Supreme Court ordered the appellant to pay Rs. 25 Lakhs as a one-time settlement for alimony.
• The Court considered various legal precedents while deciding the amount.
• The Court directed that all pending criminal and civil cases between the appellant and the respondent should be closed.

Case Name: VISHAL SHAH v. MONALISHA GUPTA & ORS., Arising out of SLP(Crl.) No(s). 4297 of 2023

Attachment:

In a recent ruling, the Madhya Pradesh High Court has dismissed a rape case filed by a married woman against a man, stating that her consent for a sexual relationship was not based on a false promise of marriage. The case, Veerendra Yadav v. The State of Madhya Pradesh, was quashed by Justice Maninder S. Bhatti after examining the facts presented by the complainant.

Key Observations and Judgment

• Court’s Ruling on False Promise of Marriage
  • The Court stated that married women cannot claim that their consent for a physical relationship was taken under the pretext of a false promise of marriage.
  • Justice Bhatti referred to previous judgments, including those of the Apex Court, and concluded:
    “When the prosecutrix is a married lady, her consent for a physical relationship on the garb of a false promise of marriage cannot be brought within the framework of consent obtained on the basis of misconception of the fact.”
• The Accusations and Relationship Background
  • The complainant was married to a driver and had two children. She alleged that the accused, who was also married, had promised to marry her after divorcing his wife, leading to the establishment of a sexual relationship over a period of three months.
  • The complainant claimed that after the accused declined to marry her, citing his inability to divorce his wife, she filed the rape complaint.
• Court’s Scrutiny of Evidence
  • The Court carefully examined the complainant's statement and found no evidence of coercion or misconception.
  • It was noted that the complainant had engaged in the sexual relationship voluntarily when her husband was away, and that there were no specific allegations of pressure being applied by the accused.
  • “Therefore, it cannot be said that the consent was given by the prosecutrix under some misconception of fact.”
• FIR Scrutiny and Case Dismissal
  • The Court pointed out that the FIR did not contain any clear allegations that the accused had promised marriage as a precondition for the sexual relationship.
  • The ruling emphasized that such cases should be dismissed early to prevent unnecessary legal proceedings.
  • “In such a case, the FIR is required to be nipped in the bud, as the same would entail in the long drawn process of conduct of trial whereas the allegations levelled in the FIR on their face value, do not indicate the commission of offence under the aforesaid sections.”
• Advocates Representing the Case
  • Advocate Shreyash Pandit represented the accused, and Deputy Government Advocate Shailendra Mishra represented the State in the case.

Case Title: Veerendra Yadav v State of Madhya Pradesh

Attachment:

On February 18, 2025, the Supreme Court heard a petition filed by the Indian Federation of App-based Transport Workers (IFAT), which sought social security benefits from prominent companies like Zomato, Swiggy, Ola, and Uber. The petition addressed the delay in enforcing the 2020 Code, which remains largely unenforced due to the delay in framing its implementing rules.

Background of the Case:

• The 2020 Code on Social Security was introduced to extend coverage to unorganised workers, including gig workers.
• Despite the President's assent in September 2020, the rules under Chapter IX for gig workers' social securityare still not framed.

Hearing Proceedings:

• Senior Advocate Dr. S. Muralidhar, representing the petitioners, argued that while the 2025 Budgetacknowledged the rights of gig workers, it remains unclear whether the Unorganised Workers' Social Security Act of 2008 applies to them.
• Senior Advocate PS Patwalia, representing Swiggy, contested that this is the first time the petitioners have argued for coverage under the 2008 Act, while previously, they sought coverage under the 2020 Code.
• Dr. Muralidhar clarified that the 2020 Code had not yet been enforced and was waiting for the rules to be implemented.

Government's Response:

• Additional Solicitor General Aishwarya Bhati confirmed that the rules are under formulation for the 2020 Code.

Supreme Court's Questions:

• Justice Dipankar Datta expressed frustration over the three-year delay, asking, “Why four and a half years to make the Rules?”
• Justice Manmohan sarcastically remarked, “Only an astrologer can tell us when this new Code will come into force... Are you willing to make a concession that they are covered even under the 2008 Act?”

The Supreme Court has directed the Union Government to file an affidavit and indicate a clear timeline for when these rules will be framed and put into effect. The matter will be heard again in two weeks.

Case Title: THE INDIAN FEDERATION OF APP -BASED TRANSPORT WORKERS, (IFAT) & ORS v. UNION OF INDIA & ORS.|Writ Petition(s)(Civil) No(s). 1068/2021

Attachment:

In Riyadh, Saudi Arabia, leaders from seven Arab nations recently gathered to discuss a response to former U.S. President Donald Trump's controversial Gaza plan. The meeting, held on Friday, aimed to formulate an alternative strategy to prevent Palestinian displacement and address the future of Gaza.

Background of the Discussion:

• Trump’s Gaza Plan proposed the U.S. “taking over” Gaza, forcibly displacing its residents and turning the enclave into a Middle Eastern "Riviera". This proposal has been met with strong opposition from Arab leaders, who argue that it undermines Palestinian self-determination, violates the rights of Gaza residents, and risks escalating regional conflict.
• The Arab leaders hope to present a unified alternative plan at the upcoming Arab League meeting on March 4, to counter the U.S. initiative.

Key Participants in the Riyadh Meeting:

The gathering in Riyadh was convened by Saudi Crown Prince Mohammed bin Salman and attended by:

• Jordan’s King Abdullah II
• Egyptian President Abdel Fattah el-Sisi
• Qatari Emir Sheikh Tamim bin Hamad Al Thani
• UAE President Sheikh Mohammed bin Zayed Al Nahyan
• Kuwaiti Emir Sheikh Meshal al-Ahmad Al Sabah
• Bahrain’s Crown Prince Salman bin Hamad Al Khalifa

Meeting Details:

• The Egyptian reconstruction plan was discussed, a three-phase plan aimed at bringing peace between Hamas and Israel, including:
  • A first phase focused on a ceasefire and prisoner exchange.
  • A second phase would ensure the complete cessation of hostilities.
  • A third phase would focus on rebuilding Gaza, which has suffered extensive destruction.
• Challenges remain, notably how to fund reconstruction efforts, with estimates from World Bank, UN, and EUsuggesting the cost would exceed $53 billion—with $20 billion required in the first three years alone.
• The question of political and security control over Gaza post-conflict is another unresolved issue, as Israel opposes Hamas' continued control, and Palestinian Authority governance faces international support but no consensus.

Urgency for a United Arab Response:

The urgency of a resolution is particularly felt by Egypt and Jordan, both under pressure from the U.S. to accept displaced Palestinians. The U.S. administration has threatened to withhold financial aid to these countries if they do not comply, but both nations have firmly rejected Trump’s plan.

Alternative Arab-led Plan:

Cairo has not publicly released its reconstruction plan, but former Egyptian diplomat Mohamed Hegazy outlined a three-phase strategy:

1. Phase 1 (Six months): Early recovery and debris removal.
2. Phase 2: International conference to plan Gaza’s infrastructure restoration.
3. Phase 3: Provide housing, services, and establish a political track towards a two-state solution for Palestinian statehood.

Expert Insights:

Abdulaziz al-Ghashian, director of research at Riyadh-based Observer Research Foundation Middle East, emphasized the interconnected nature of economics, politics, and security in formulating an effective Arab-led solution. Any plan must support Palestinian self-determination and not be driven solely by international politics or security concerns.

Source: AL Jazeera

Introduction

The recent legislative changes to Iraq’s Personal Status Law have ignited controversy, yet it remains an underreported issue at a global stage. The Parliament decision to amend the Personal Status law empowers the religious courts on matters such as marriages, divorce, and inheritance, reflecting a disturbing growing trend of adopting religious teachings in a political sphere. It marks a significant step back in history, threatening women’s and children’s welfare and rights.[1]

Conservative factions have argued that these changes are imperative to align the law and Islamic values, pushing out the western cultural influence from the country.[2] The liberal critics have contended that this amendment undermines the legal protection guaranteed to women by the Personal Status Law 1959. This shift allows the religious clerks to interpret Islamic law according to their discretion, which can lead to a rise in the number of child marriages for girls as young as nine, specifically under the Jafari school of Islam followed by the Shia community.

The Implications of the legislative change are highly draconian and far-reaching. Child marriage as a concept has been left in the pages of history. Reviving this concept and implementing it can take the nation back to dark times. Sexual and Physical abuse come hand in hand with child marriages. Women would be more vulnerable to trauma and financial dependence. The amendment diminishes the autonomy of an entire gender by exposing them to lawful exploitation.

The article focuses on specific aspects of the amendment and analyses the blatant violation of international human rights agreements, particularly, the Convention on the Elimination of All Forms of Discrimination Against Women[3] and the Convention on the Rights of the Child.[4] Granting the religious sect the authority to decide on family matters contradicts the existing legal framework of Iraq and breaches several international agreements protecting women and children from abuse.

Personal Status Law- Legal Background and Recent Amendments

Personal Status Law was enacted in 1959 as Law 188[5], a landmark legislation for the people of Iraq as it unified family law across the country. While Islamic Sharia teaching was still entangled with the law, it was comparatively progressive. This particular act governed matters such as marriage, divorce, child custody, and inheritance for Muslims in Iraq.[6] The religious factions and women’s rights advocacy groups had managed to reach a common ground within the newly formed state.

However, the recent amendments to the Personal Status Law have introduced several changes which empower the religious courts with discretion to reinterpret the age of marriage. The recent amendment that came into force in 2025, allows a couple to choose between civil law or specific Islamic schools of jurisprudence. This enables the religious faction to enable sect-based interpretations of the law.

Since the fall of Saddam Hussein in 2003, the Shia political community have gained considerable authority and power, which has led to diminished women’s rights. Religious authorities and clergy have had an increasing influence over legislative changes reflecting an agenda for incorporating religion with state law. Under the previous legal framework of the Personal Status Law, the minimum age for marriage was 18, with exception to 15 years with judicial approval. The amendment has altered this parameter, marking a significant change. Empowering religious courts with individual rights and discretion to interpret law undermines decades of progress towards equality. Below are the significant changes:

1. Sect-based interpretation of family law creates a risk of a fragmented legal system where rights vary and are based on religious affiliation. This will cause an erosion of a unified legal standard needed for stability. Different sects of Islam follow different standards and religious rules. Allowing sectarian divisions threatens individual rights and deepens the risk of division within the society.
2. The Jafari school of Islam is followed largely by the Shia community. This particular school does not have a minimum age for marriage, allowing a girl who has started puberty to get married. The amendment could permit child marriages for girls as young as nine years and boys as young as fifteen under this school.[7] At first glance it seems ‘optional’, but reintroducing such values is oppressive and eventually can be adopted without the option of following a more liberal path.
3. Unregistered marriages conducted by religious leaders, though not officially registered, are extremely prevalent.[8] These types of marriages are illegal under the Personal Status Law but are used as a loophole[9] to neglect the legal minimum age for marriage. The amendment legalizes these unlawful marriages and allows the religious leaders to finalize them instead of the courts.
4. Institutionalizing unregistered marriages and permitting their practice leaves women and children without any legal protection in cases of inheritance, divorce, and child custody, making them further vulnerable to exploitation and abuse.
5. The amendment reduces judicial authority and oversight by allowing religious courts to determine marriage eligibility without following the standard legal criteria. Religious adaptation and interpretation can be developed without public review. This raises concern about transparency and accountability.
6. The amendment was passed on the 21^{st of} January 2025, reportedly there was no formal vote.[10] This indicates a lack of transparency. Conservative Islamic factions are driving the wheel towards adapting strict religious interpretations and teaching, which marginalizes several groups and communities. 

Legal Violations: Conflict with International Treaties

The contradiction of several international treaties and norms, which Iraq has ratified, is blatantly offensive to International Law. Iraq is a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), specifically designed to protect the rights and interests of women and children.

CEDAW is often considered as an international bill of rights for women.[11] The convention mandates all signatory countries to eliminate discrimination against women in all spheres. Article 1 of CEDAW defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”[12]

The convention has aimed to bring equitable treatment for men and women, however, by empowering religious courts with discretionary authority on family law, it reinforces gender inequality and directly violates the provisions of CEDAW. The convention dictates that all measures have to be taken to eliminate discrimination against women in matters relating to marriage and family, ensuring equal rights in marriage, full consent and the right to choose a spouse[13]. Permitting unregistered marriages and religious integration with law, the amendments directly contravene these rights and protection CEDAW offers in private spheres of marriage and family life.

The Convention on the Rights of the Child under Article 1 defines ‘child’ as anyone under the age of 18[14]. CRC emphasizes the right to protection from harmful practices and child marriage by default is a harmful practice making it a contradiction to the convention and violating its commitment to protect children’s rights.

Beyond CEDAW and CRC, the Personal Status Laws amendment also undermines several other international legal standards. Notably, the International Covenant on Civil and Political Rights[15] and the International Covenant on Economic, Social and Cultural Rights.[16] The amendment contradicts the conventions by depriving someone of rights based on their religion.[17]

An entire gender falls under disadvantage, especially under religion, which is why protection of their rights became an international issue. Despite Iraq being a signatory to these treaties, the legislative reform has contradicted the legal commitments made by the state. The conflicting law has drawn criticism from UN bodies and the international community[18], highlighting the incompatibility of the amendment with the obligation of the states’ commitment to the international legal standard.

Conclusion

In summary, the amendment has presented a challenge for women and children in Iraq. The law now not only has profound negative social implications but supports regression as well. From its question delegation of authority to religious courts and obvious contradictions of CEDAW and CRC, the amendment undermines decades of progress and sacrifices women have made for their future. This legislative reform is not only legally flawed but morally and socially deplorable. The long-term impact on the society as a whole would be dire. Iraq does not seem to be budged by the international reputation it has recently acquired, therefore, the international community would have to unite to advocate for immediate reversal of the said reforms.

Integrating religion with the state has historically proven to be a disastrous path leading to oppression, discrimination and erosion of individual freedom. The current situation in Afghanistan serves as a reminder of the consequences of prioritising religion over individual rights. Ultimately, these policies are about control and suppressing voices to maintain some authority over women. Women are facing a systematic dismantling of the hard-won safe spaces they created.

Legal systems must evolve to meet basic human rights standards. Using the word ‘modern’ or ‘western’ somehow offends religious practices. Whereas, if history is studied properly, at any period, women were not even allowed to practice their fundamental human rights. Meaning, the country should evolve to a more civilised state rather than regress to barbarianism. The future of Iraq depends on its ability to uphold the principles of safeguarding dignity and individual rights and preventing descent into oppression.

[1] Amnesty International, ‘Iraq: Reject Changes to Personal Status Law Which Would Allow Child Marriage and Further Entrench Discrimination’ (10 October 2024) https://www.amnesty.org/en/latest/news/2024/10/iraq-reject-changes-to-personal-status-law-which-would-allow-child-marriage-and-further-entrench-discrimination/.

[2] Associated Press, ‘Iraqi Lawmakers Pass a Bill That Critics Say Legalizes Child Marriage’ CNN (21 January 2025) https://edition.cnn.com/2025/01/21/middleeast/iraq-child-marriage-lawmakers-criticize-bill-intl-hnk/index.html.

[3] Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (adopted 18 December 1979, entered into force 3 September 1981) UNGA Res 34/180 https://www.un.org/womenwatch/daw/cedaw/text/econvention.htm.

[4] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNGA Res 44/25 https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child.

[5] Law No 188 of 1959, Personal Status Law (Iraq) and amendments https://www.peacewomen.org/sites/default/files/lawref_iraqpersonalstatuslaw1959_aba_0.pdf.

[6] Sanbar S, ‘Iraq's Amended Personal Status Law Could Make 9-Year-Olds Brides’ (Democracy for the Arab World Now, 19 September 2024) https://www.hrw.org/news/2024/09/19/iraqs-amended-personal-status-law-could-make-9-year-olds-brides.

[7] KSC, ‘Slemani: KSC Addresses Concerns Over Controversial Amendments to Iraq’s Personal Status Law - New Amendments Spark Debate on Marriage Age, Custody Rights and Protections for Women and Children’ (ReliefWeb, 24 January 2025) https://reliefweb.int/report/iraq/slemani-ksc-addresses-concerns-over-controversial-amendments-iraqs-personal-status-law-new-amendments-spark-debate-marriage-age-custody-rights-and-protections-women-and-children.

[8] Human Rights Watch, ‘Iraq: Unregistered Marriages Harm Women and Children’ (3 March 2024) https://www.hrw.org/news/2024/03/03/iraq-unregistered-marriages-harm-women-and-children.

[9] Lucia Hanmer and Marina Elefante, The Role of Identification in Ending Child Marriage (The World Bank, 2025) https://documents1.worldbank.org/curated/en/130281472492551732/pdf/The-role-of-identification-in-ending-child-marriage-Identification-for-Development-ID4D.pdf.

[10] MacDonald A, ‘Iraq: Revised “Sectarian” Law That Raised Fears over Child Marriage Passed Without Vote’ (21 January 2025) https://www.middleeasteye.net/news/sectarian-law-potentially-allowing-child-marriage-passed-without-vote-iraq.

[11]UN Women, CEDAW for Youth (UN Women, December 2016) https://www.unwomen.org/en/digital-library/publications/2016/12/cedaw-for-youth.

[12] Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (adopted 18 December 1979, entered into force 3 September 1981) UNGA Res 34/180 https://www.un.org/womenwatch/daw/cedaw/text/econvention.htm.

[13] Ibid

[14] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNGA Res 44/25 https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child.

[15] UN General Assembly, International Covenant on Civil and Political Rights (16 December 1966) https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights.

[16] UN General Assembly, International Covenant on Economic, Social and Cultural Rights (16 December 1966) https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights.

[17] UNFPA, Iraq: Gender Justice – Assessment of laws affecting gender equality and protection against gender-based violence https://arabstates.unfpa.org/sites/default/files/pub-pdf/Iraq%20Country%20Assessment%20-%20English_0.pdf.

[18] UN Human Rights Council, Mandates of the Special Rapporteur on violence against women and girls, its causes and consequences and the Special Rapporteur on the sale, sexual exploitation and sexual abuse of children (Ref: OL IRQ 4/2024, 10 September 2024) https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=29342.

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Introduction

Tariffs are one of the most debated topics in the current global political landscape. While tariffs are primarily a way for the government to protect domestic industries, many fail to understand the nature of ‘imposing tariffs’ and how they actually work. A tariff is essentially a tax imposed on goods and services imported from another country. When a country imposes tariffs on a product imported from another state, the business selling those products does not pay the tax directly. The burden of paying the tax on the product is passed down to the importers, the business and ultimately the customers in the country that has imposed the tariff.

It is a common misconception that tariffs force the importing country to pay more, however, the reality is different. The legal framework of trade is complex and different from other laws. The purpose of tariffs is:

1. Response to unfair trade
2. Protect and support local industries
3. Generate revenue

As the nature of Tariffs by default is international, the World Trade Organisation (WTO) has set universal rules on trade that help facilitate disputes among states. It is imperative to balance this fragile financial structure as using it as a political tool can lead to a trade war which can dismantle the economic stability of both parties and other states as well. Understanding the legal and economic effects of tariffs is essential as these policies impact the people more than the government.

The United States of America has recently changed its tariff policy after President Trump came into office. The Trump administration has been vocal about “reciprocal tariff” since the election campaign. Though reciprocal tariff does not have an official definition, it can be translated to ‘an eye for an eye’. As of February 2025, the Trump administration has imposed an increase in the tariff for China, Mexico and Canada over security concerns. This has created global tension and can lead to constant flux in the economy.

Tariffs Imposed by the United States (2025)

"If India, China, or any other country hits us with a 100 or 200 per cent tariff on American-made goods, we will hit them with the same exact tariff. In other words, 100 per cent is 100 per cent. If they charge us we charge them – an eye for an eye, a tariff for a tariff, same exact amount."[1] – Trump

As promised by Donald Trump during his election campaign, his administration has released executive orders imposing tariffs on Canada, Mexico and China. As allowed under Trade Expansion Act of 1962 (section 232)[2] and International Emergency Economic Powers Act.[3] The executive orders also suspend Section 321 (a) (2) (C) of the Tariff Act of 1930, also known as the ‘de minimis exception’. This section allows tax exemption of import of goods valued at $800 or less, which benefits e-commerce businesses that deliver low value goods to customers.[4]

Goods imported from China face an additional 10% tariff. Trump stated that a balance has to be provided between China and the U.S.A., as they (America) have been subjected to unfair trade practices. The government has the authority to impose and increase trade restrictions when national security is at risk.[5] The Trump administration has failed to provide how national security is at risk, but has used it as a justification publicly at multiple occasions.

Canada and Mexico face 25% additional tariff on imports. Canada is a very close trading partner to the U.S., and has retaliated with reciprocal tariffs on several U.S. goods. Effective 4^th February 2025,  the Canadian government has imposed 25% tariffs on $30 billion worth of goods imported from the United States. The government has announced that these countermeasures shall remain in effect till the U.S. does not eliminate its tariffs against Canada.[6] Donald Trump on several occasions has made public statements of making Canada the 51^st state of the United States of America. These statements have created more tension between the two countries.[7] In a way, it can be seen as a benefit for the local industries in Canada as the citizens are now buying ‘made in Canada’ products than the American ones. In just a couple of days, the Canadian supermarkets have seen replacements of American goods. This may have backfired on the Trump administration.

Mexico has a rough relationship with the U.S. Trump has often accused Mexico of supplying ‘fentanyl’ over the border and illegal immigration.[8] As a response to these accusations, the tariff was increased for Mexico. However, Mexico has responded by targeting U.S. agriculture products and industrial goods specifically.

China went one step forward. The country responded with a combination of increases in tariffs and non-tariff measures. The Chinese government has imposed 15% tax on U.S. coal, gas and other goods, along with impositions on mineral exports and an antitrust investigation into Google. The U.S. can be financially more affected by the Chinese tariff through their restriction on mineral exports. China is a global supplier of rare earth minerals and restricting them will lead to a significant impact as America is dependent on the minerals for defence, electronics and energy industries.

Trade War and its Economic Impacts

The current economic situation can be labelled as a Trade War and can have dire effects on other countries as well. The American economy has both positive and negative effects from the ongoing trade war.

• The increased tariffs could generate approximately $100 billion per year as an extra federal tax revenue.[9]
• The American market can have supply chain disruptions. Businesses can have increased costs, and consumers will face high prices on goods.
• Specific industries like agriculture and certain sectors will face a hike in joblessness.
• The 25% additional tariff on Canada and Mexico will lead to an increase in the cost of production in the American automakers sector. This will cause the cost of some cars to increase by $3000.[10]
• Mexico is the biggest source of fresh produce for America. The cost of groceries could rise.

While the government has retaliated with ‘an eye for an eye’, the impact of these policies will cost the citizens more than Canada or Mexico. Apart from the geographical disadvantage, building trade relations with other countries should not take time if the tariffs remain.

Canadian and Mexican goods will cost more due to the additional tax, which can cause the exports to decline. The same can be said for Chinese goods. China’s economic growth is heavily dependent on exports and their low prices. Disruption in both elements can lead to slower economic growth. Specifically in the machinery, electronics and textiles industry.

Legal Challenges and WTO Rules

The retaliatory measures adopted by the United States have raised several legal issues. Potential violations regarding the rules of the World Trade Organisation are particularly concerning. Members of World Trade have to abide by certain rules set by the organisation to promote free and fair trade.

Potential Challenges

The U.S. tariffs may be challenged on the grounds of violation of WTO’s rules on tariffs and non-discrimination. The World Trade Organisation has a strict “Most Favoured Nation Principle”[11], popularly known as MFN Principle. According to MFN, member countries are required to treat all members equally. Imposing tariffs on specific states, without a justified reason, can violate this principle. The National Security Exception to justify these tariff increases cannot be used as it is narrowly defined and is not clear whether the U.S. fulfills the criteria for this exception.

Retaliatory Tariffs imposed by a state are allowed by WTO, however, the retaliation must be proportionate to the harm caused by unfair trade. To exercise the right to retaliation, evidence of an unfair trade practice has to be established.

The current situation is ongoing and evolving with an uncertain outlook regarding policy implications. There can be several potential scenarios: Escalations, Negotiation or Continued Stalemate.

Conclusion

The trade wars always represent a significant shift in the global landscape. The measures adopted by the United States can have far-reaching consequences for the economy. The long term implications are uncertain, but it is extremely clear that governments and businesses have to adapt to the new reality and not remain dependent on a single country for their economic growth.

Rising prices and inflation can pose a challenge for the Trump administration. Economists have warned that this trade war could lead to higher inflation and may offset any wage gains of the American workers.[12] The agreements and impulsive economic decisions underscore the complexities of international trade and interplay of politics and economics. While the decision of the country’s economy lies in the hands of the government, an advisory role of an economist should be taken into account. Imposing retaliatory tariffs do not address fundamental legal and economic issues and will not provide long-term relief.

Ultimately, modifying tariffs or rescinding them will provide lessons and shape the future of international trade and law governing global commerce. The very fabric of  Rules-based trading has to have stability for it to last. While the U.S may have some short-term benefit in terms of federal tax revenue, the long-term effect will dampen investments, distort economic growth and interfere with trade flows. This remains a significant concern as the recipients of all the negative impact will fall on the shoulders of the people. In conclusion, the economic and legal fallout caused due to the trade wars calls for a swift and stable solution to minimise the damage on international commerce and the citizens as well.

[1] Moneycontrol, ‘What Are Reciprocal Tariffs That Trump Is Likely to Implement? How Will India Be Affected?’ (13 February 2025) https://www.moneycontrol.com/news/world/what-are-reciprocal-tariffs-that-trump-is-likely-to-implement-how-will-india-be-affected-12939479.html

[2] U.S. Department of Commerce, ‘Section 232 Investigation on the Effect of Imports of Steel on U.S. National Security’ Commerce.gov https://www.commerce.gov/issues/trade-enforcement/section-232-steel.

[3]   U.S. Senate, ‘S. Rept. 110-82 - International Emergency Economic Powers Act’ (110th Congress, 2007-2008) Congress.gov https://www.congress.gov/congressional-report/110th-congress/senate-report/82.

[4] Congressional Research Service, ‘Imports and the Section 321 (De Minimis) Exemption: Origins, Evolution, and Use’ (31 January 2025) https://crsreports.congress.gov/product/pdf/R/R48380

[5] White House, ‘Fact Sheet: President Donald J. Trump Imposes Tariffs on Imports from Canada, Mexico and China’ (1 February 2025) https://www.whitehouse.gov/fact-sheets/2025/02/fact-sheet-president-donald-j-trump-imposes-tariffs-on-imports-from-canada-mexico-and-china/.

[6] Department of Finance Canada, ‘List of Products from the United States Subject to 25 Per Cent Tariffs Effective February 4, 2025’ (February 2025) https://www.canada.ca/en/department-finance/news/2025/02/list-of-products-from-the-united-states-subject-to-25-per-cent-tariffs-effective-february-4-2025.html

[7] Colvin J, ‘Trump Says He’s Serious About Wanting Canada to Become 51st U.S. State’ Time (9 February 2025) https://time.com/7214321/trump-canada-51st-state-fox-super-bowl-interview/.

[8] Dentons, ‘United States Imposes New Tariffs on China Citing National Emergency and Grants a 30-Day Extension to Canada and Mexico’ (4 February 2025) https://www.dentons.com/en/insights/alerts/2025/february/4/united-states-imposes-new-tariffs-on-china-citing-national-emergency.

[9] O'Neil SK and Huesa J, ‘What Trump’s Trade War Would Mean, in Nine Charts’ Council on Foreign Relations (5 February 2025) https://www.cfr.org/article/what-trumps-trade-war-would-mean-nine-charts.

[10] Lorinc J, Welch D and Stillman A, ‘U.S. Car Prices Face $3,000 Increase as Trump Tariffs Hit Auto Sector’ BNN Bloomberg (2 February 2025) https://www.bnnbloomberg.ca/business/2025/02/02/us-car-prices-face-3000-increase-as-trump-tariffs-hit-auto-sector/.

[11] World Trade Organization, ‘Principles of the Trading System’ WTO https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm.

[12] Picchi A, ‘Trump Orders 25% Tariffs on Steel and Aluminum. Here's What Experts Say Could Become Pricier’ CBS News (11 February 2025) https://www.cbsnews.com/news/trump-tariffs-steel-aluminum-25-percent-impact-prices-inflation/.

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On February 20, 2025, the Supreme Court of India expressed concerns regarding the current system for the Senior Advocate designation, which was previously outlined in the Indira Jaising case in 2017 and revised again in 2023. This system, which evaluates advocates for seniority based on a points-based approach and interviews, has now come under scrutiny for several reasons. The Court emphasized that its purpose was not to undermine these two landmark judgments, but to express concerns that could prompt the Chief Justice of India to refer the matter to a larger bench for further consideration.

Key Concerns Raised by the Bench

1. Issue with Self-Application for Designation:

• The bench questioned whether advocates should be allowed to apply for the Senior Advocate designation. Referring to Section 16(2) of the Advocates Act, the Court pointed out that designations are privileges conferred by the Supreme Court or High Courts, not something that can be sought by an advocate.
• “The question is whether a person can seek something which has to be conferred,” the bench remarked.

2. Validity of Interview Process:

• The bench cast doubts on the interview process for the designation, which currently accounts for 25 pointsout of a 100-point system. The process of interviewing candidates for only a few minutes, the Court noted, may not sufficiently assess their personality or suitability.
• “It is doubtful whether by interviewing a candidate for a few minutes, his personality and suitability can be tested,” they stated.

3. Concerns About Points-Based Assessment:

• The Court raised concerns about the points-based formula currently used to evaluate candidates. While it is designed to assess integrity, experience, and other factors, the system doesn't allow the Permanent Committee to reduce points if an advocate has unresolved complaints or lacks integrity.
• “No one can dispute that an advocate who lacks integrity or fairness is entitled to designation,” the bench observed, noting that there are no provisions to penalize such advocates if they perform well in interviews or other aspects of the evaluation.

4. Difficulty in Reviewing Judgments and Publications:

• Another issue raised was the burden on the Permanent Committee of reviewing numerous judgments and publications submitted by candidates. Given the number of submissions and the limited time of the five-member Permanent Committee, the bench questioned whether such an intensive review process was practical.
• “Whether the 5 members of the Permanent Committee are expected to go through every judgment submitted by the candidate to assign 50 marks or assign marks for publication” was flagged as a significant concern.

5. Potential Defects in the Points System:

• The Court noted that the points-based assessment might be flawed, suggesting that it might not fully capture the merit or qualifications of candidates for Senior Advocate designation.
• The bench emphasized the need for a more accurate method of evaluating an advocate’s standing at the Barand overall competence.

6. Inadequate Consideration of Active Practice:

• The Court pointed out that points for years of practice are assigned mechanically, without taking into account the candidate's active practice or standing at the Bar. This oversight could affect the quality of the selection process.

7. Risk of Compromising the Dignity of Advocates:

• The Court noted that the interview process could potentially compromise the dignity of the advocate, transforming the process into a selection procedure rather than a designation.
• “The interview process may compromise the dignity of the advocate and convert the designation process into a selection process,” the bench said.

8. Prohibition on Secret Ballot Voting:

• The Court questioned the ban on secret ballot voting for selecting Senior Advocates, raising concerns about the transparency of the process.
• “Should the judges openly discuss the merits and demerits of applicants?” the Court asked, challenging the current guidelines.

9. Disadvantage to Advocates in Trial Courts:

• The Court raised the issue that advocates practicing in trial courts, who may not have reported judgments, are at a disadvantage, despite having significant standing and competence in their legal work.

Emphasis on Dignity of Judiciary

The Court reiterated the importance of ensuring that only deserving advocates receive the Senior Advocatedesignation, warning that conferring it on undeserving candidates would diminish the prestige and dignity of the judiciary.

Directions for Further Action

Following these concerns, the bench directed the Registrar General to present a copy of the judgment to the Chief Justice of India to decide whether a larger bench should consider these issues.

Additional Issues: Advocates-on-Record (AoR) Code of Conduct

The Court also addressed the conduct of Advocates-on-Record (AoRs), particularly in light of a case involving misrepresentation and suppression of facts in remission pleas. The Court outlined the responsibilities of AoRs, emphasizing their role in ensuring accurate representation in petitions and counter-affidavits.

• AoRs must thoroughly verify the facts and documents before filing any petitions.
• If an AoR fails to do so, they will be held accountable for incorrect statements made in the filings.

The Court made it clear that misconduct by AoRs could result in disciplinary action as per Rule 10 of Order IV SC Rules.

Senior Advocate Rishi Malhotra’s Case

• The Court also addressed the Senior Advocate designation of Rishi Malhotra, who was found to have made false statements in several remission pleas. While the Court did not decide on his designation withdrawal, it left the matter to the Chief Justice of India for further action.

Background of the Case

This case arose from misrepresentation in a Special Leave Petition (SLP) filed by Rishi Malhotra. The Court had previously taken note of the false statements made in the petition, where key facts were suppressed. The case raised concerns about the growing trend of misrepresentation in remission pleas and highlighted the need for stricter adherence to ethical conduct by advocates.

The Court also sought suggestions from the Supreme Court Advocates-on-Record Association (SCAORA) and appointed Senior Advocate Dr. S. Muralidhar as Amicus Curiae to assist in formulating better guidelines for the Senior Advocate designation process and the conduct of AoRs.

Further Steps Suggested

• Amicus Curiae Dr. Muralidhar suggested the introduction of a secret ballot system for selecting Senior Advocates, where all judges of the Constitutional Court would vote on the matter.
• Suggestions were made to amend the Supreme Court Rules to define the responsibilities of different categories of lawyers and ensure better accuracy in pleadings.

Case Title – Jitender @ Kalla v. State (Govt.) of NCT of Delhi & Anr.

Attachment:

In a recent development, the Supreme Court has strongly criticized the Allahabad High Court for passing an interim order on the supply of food to lactating mothers and young children in Anganwadi centres, despite the matter being actively considered by the Supreme Court. The bench of Justice Dipankar Datta and Justice Manmohan expressed its displeasure over the High Court’s actions and urged the lower court to act more responsibly in future proceedings.

This case pertains to a Public Interest Litigation (PIL) initiated in 2021, questioning whether the food provided in Anganwadi centres meets the nutritional standards set under the National Food Security Act, 2013 and related guidelines such as the Integrated Nutrition Support Programme (Shaksham Anganwadi and Poshan 2.0 Rules, 2022).

Details of the Case and Interim Orders

High Court's Interim Order:

• The Allahabad High Court had been hearing a PIL concerning the adequacy of food supplied under the Integrated Child Development Services (ICDS). It was alleged that the food distribution did not meet the nutritional standards mandated by the National Food Security Act, 2013.
  • Key Issue:
    The High Court was informed that NAFED (National Agricultural Cooperative Marketing Federation of India Ltd.) was authorized by the state authorities to tender for the procurement of nutritious products under the ICDS scheme, but without adhering strictly to legal requirements.
  • Consequently, the court imposed an interim order on November 11, 2024, preventing procurement from proceeding without prior permission from the court.

Supreme Court’s Intervention:

• This order was challenged before the Supreme Court, which stayed the Allahabad High Court’s order on December 19, 2024.
• The bench of Justices Dipankar Datta and Prashant Kumar Mishra observed that the High Court acted prematurely by passing an order without taking into account the ongoing proceedings before the Supreme Court."The High Court acted abruptly in passing this order," the Supreme Court observed in its judgment.

Modification of Order:

• On December 20, 2024, the Allahabad High Court modified its earlier order, directing the states regarding the procurement process, despite the Supreme Court's interim stay. This led to further criticism from the Supreme Court.
• The bench noted that the High Court’s actions were "neither warranted nor desirable," given the Supreme Court had already granted an interim stay and scheduled the matter for further hearing in February 2025."The High Court ought to have awaited further orders, instead of issuing directions on how the appellants should act," the Supreme Court remarked.

Supreme Court’s Decision to Set Aside High Court’s Interim Order

Unreasonable and Abrupt Action:

• The Supreme Court pointed out that the Allahabad High Court’s interim order, passed over three years after the PIL was instituted, was abrupt and lacked reasoning.
• Therefore, the Supreme Court deemed it fit to set aside the impugned interim order and all subsequent directions passed by the High Court in the PIL."The impugned interim order being wholly unreasoned and having been abruptly passed is liable to be set aside,"the Supreme Court stated in its judgment.

Supreme Court’s Order:

• The Supreme Court also clarified that appellants were entitled to continue implementing the food supply scheme for lactating mothers and young children while maintaining the requisite quality of the food items, until the final disposal of the PIL.
• "The appellants shall be entitled to implement the subject scheme for supply of food items maintaining the requisite quality, to be used by lactating mothers and young children, till final disposal of the Public Interest Litigation."

Case Title: THE STATE OF UTTAR PRADESH & ORS. v. PRATYUSH RAWAT & ORS., Special Leave to Appeal (C) No(s). 30405/2024.

Attachment:

Introduction

The Prevention of Terrorism Act, often referred to as PTA 1979[1], has been in effect for over 40 years. This draconian legislation has been under severe scrutiny since its implementation. The Sri Lankan government created this act before the civil war broke out in 1979, which lasted for twenty-six years. PTA was enacted as a temporary legal legislation[2] to combat terrorism and since has been criticised by the international community for its vague language and misuse which led to human rights violations. Despite the Sri Lankan government’s promises to repeal this act after 2009, there has been no change as the promises never materialised. This tyrannical act contradicts the very essence of democracy and rule of law while systematically violating fundamental rights.

The oppressive nature of the act has led to several instances of communal disharmony. An act that was originally implemented as a temporary measure is now being morphed into the permanent legal structure of the country.

Background of PTA 1979

After the making of Sri Lanka’s Republican Constitution, a majority of the power was concentrated in the Sinhalese Community, making the Tamil population a minority. 1979 was the start of the first wave of misuse of power. The conflict between Tamils and the government escalated, which resulted in a civil war by LTTE (Liberation Tigers of Tamil Eelam) insurgents. This was a separatist militant faction that threatened the internal peace of the country. The parliament passed the PTA as a temporary legislation by a two-thirds majority in support of the act despite its abusive nature. Tamil people were arrested and detained[3] on mere suspicions of being a national security threat or part of the LTTE. The second wave started after the Easter Bombing attacks, which were carried out by IS (Islamic State)[4]. A series of blasts occurred on Easter Sunday, over 300 people were killed and churches were targeted. After the attack, the Muslim community faced backlash and anyone who promoted “communal disharmony” could be arrested and detained. 

Since the act has been operative, it has targeted minority communities of the country, first the Tamilian people, then the Muslim population, and in the recent years, it has been reduced to an instrument used by the government to suppress the voices of the people who criticized the actions of the government and stand up for their fundamental rights. While Sri Lanka was on a mission to protect the country, it compromised on the rights of different religious and ethnic groups.

Critical Analysis of the PTA 1979 Provisions

The definition of ‘Terrorist Acts’ in PTA 1979 (Section 2)[5] is extremely vague and broad, leaving it open to interpretation. The elements which constitute terrorist acts, for example, are “acts of communal disharmony”, “mischief to government property” and “ill will or hostility between communal, racial or religious groups”[6]. This loose definition varies and has raised concerns since its implementation. These acts can be characterised as criminal offences but due to the discretionary power given to the police, without due process of law, anyone suspected of ‘terrorist acts’ can be arrested and detained.

The definition of “Proclaimed Person” (sec 3) undermines the statement “innocent until proven guilty”, which is one of the elements of democracy. It gives significant authority to the police (inspector general) to ‘proclaim’ any individual they suspect to be a terrorist without any judicial oversight[7]. The lack of judicial review closes the gap between the political, legal and administrative structure as separation of power is concentrated in one hand. Allowing an individual to carry out arrests without scrutiny dissolves the objective of checks and balances. Therefore, potentially there can be no accountability. There is no specific criteria as to who can be a “Proclaimed Person”, which can cause the authority to abuse the power for political and personal reasons.

The vagueness of the terminologies has been extended to “Security Area” (sec 3)  defined in the PTA 1979. It allows a minister to declare any area as a security area based on their subjective views of what “Reasonable Apprehension of Organised Violence”[8] is. The absence of specificity in the act fails to meet international standards. Not only can a minister, i.e., politician, carry out the declaration of a security area, they also do not have to provide any evidence or justification for such a decision[9]. These discretionary powers go against the rule of law as oversight is bound to happen. Even peaceful protests and gatherings can be viewed as unlawful or organised violence, which contradicts freedom of speech and right to personal liberty.

Arbitrary detention is allowed for 18 months without charge (sec 9)[10]. If an individual is suspected of being a terrorist or being associated with a terrorist or any such activity, they can be detained without charge to protect national security. While the intention could have been protection from threats, it is incompatible with international law.  The act has not been considered judicial review as any order made under section 9 has to be upheld and “cannot be challenged in any court or tribunal by writ or otherwise” (sec 10)[11]. This closes all doors for an appeal or any opportunity to be presented in front of a judicial authority, 

Section 16 of the PTA deals with “Admissibility of Certain Statements.”[12] This section raises concerns regarding the protection of the rights of the accused person. Accused individuals may be subjected to torture, coercion, and intimidation during interrogation, which could lead to coerced confessions or statements. Usually, the admissibility of such statements is void. However, the acts allow the statements made by the defendant to be used in a court of law by reversing the burden of proof onto the accused. The act excludes (sec 17) sec 25, 26, and 30 of the Evidence Ordinance[13], which places additional restrictions on the admissibility of confessions. These sections deprive the defendants of their right to a fair and just trial. 

The lack of accountability is explicit as the act grants immunity to law enforcement officials or other authority “for any act or thing in good faith” (sec 26)[14]. This can give officials a license to engage in ill-treatment, arbitrary detention, and other fundamental rights abuses. This shields and protects any violations, which creates a legal loophole that allows exploitation and no transparency. The legal language used in the act can be manipulated due to the ambiguous nature.

The Prevention of Terrorism Act 1979 could have been deemed unlawful but Article 84 of the Sri Lankan constitution[15] allows implementation of any bill that is inconsistent with the constitution if the parliament approves it. This provision provides the parliament with flexibility to pass legislation (with majority votes) that are conflicting with the constitution, making parliament a sovereign entity in a way. In a democracy, the constitution lays down the legal framework, but a loophole in such statutes can cause the democratic structure to fall.

Impact on Human Rights

The international pressure pushed Sri Lanka to reform the PTA 1979 to retain a trade deal with the European Union. The Sri Lankan president made a promise to take immediate steps to reform the act and address the human rights violations.[16] However, despite the claims made by the president, the PTA has been used against poets, journalists, minorities, etc. Simultaneously, the government worked on reinstating the death penalty for terrorist acts even though Sri Lanka has had a de facto moratorium on execution since 1976[17]. This can be seen as a major setback as the death penalty can be used against ‘terrorist acts’ even though they don’t qualify as terrorist acts.

In 2017, a special rapporteur was formulated on Counter Terrorism and Human Rights. The report stated that “80% of the most recent arrests under PTA complained of torture and physical ill-treatment following their arrest”[18] Although the government proposed a new bill “Anti-Terrorism Act” in 2022, that would replace the PTA, the problematic definitions and provisions remain.[19] Even though there are certain improvements, replacement of PTA seems to be a promise that the government does not hold.

Contradictions with International Legal Framework

1.  International Humanitarian Law for Non International Armed Conflict

Violation of Common Article 3 of the Geneva Convention[20], to which Sri Lanka is a state party, dictates the states to protect individuals during detention. Violation of Additional Protocol II, which has not been ratified by Sri Lanka, but as customary international law[21], states have to ensure humane treatment of all individuals and protect their right to liberty. PTA violates all these principles to safeguard fundamental rights.

2. Universal Declaration of Human Rights (Ratified by Sri Lanka)

UDHR[22] does not allow torture, cruel or inhumane treatment towards any person (UDHR, Art 5), arbitrary detention or arrest (UDHR, Art 9), fair and just trial (UDHR, Art 10), presumption of innocence until proven guilty (UDHR, Art 11), freedom of speech, expression and opinion (UDHR, Art 19). Keeping the UDHR provisions in consideration, PTA violates several fundamental rights that have to be protected regardless of conflict.

3. Convention Against Torture (Accession done by Sri Lanka)

CAT dictates each state party to take effective measures to prevent acts of torture (CAT, Art 2)[23], while Art 4 of the convention asks the states to ensure that all acts of torture should be constituted as a punishable offence by law. Sri Lanka violates the provision under CAT by allowing forced confessions and ill-humane treatment.

4. International Covenant on Civil and Political Rights (Ratified by Sri Lanka)

ICCPR is an international convention that protects political and civil rights of all individuals. All state members have to ensure that no person is subjected to torture or cruel treatment (Art 7)[24]. No individual should be subjected to “arbitrary arrest or detention” and states should protect the right of personal liberty and security (Art 9). Art 14 of the convention states that all individuals should be given a fair trial and legal representation and should be presumed innocent until proven guilty. The convention even protects the right to freedom of speech and expression in every form. Sri Lanka violates these provisions despite being a state party.

Several other conventions protect fundamental human rights that legally bind the state parties who ratify the provision. Sri Lanka does not meet the international standard and violates several conventions and treaties. Despite giving official statements to reform PTA 1979, it has failed to protect the ethnic minority communities from discrimination and abuse.

Conclusion

In conclusion, the pillars of democracy are transparency and inclusivity. The Prevention of Terrorism Act has been subjected to criticism for several years. After critically analysing PTA 1979 (temporary provisions), it is evident that this legislation, which was implemented to protect the nation from national threats, has been used for human rights violations. The act goes against the very democratic principles of the rule of law and due process of law.

The judiciary is one of the most respected institutions in any democracy, and not providing judicial oversight takes away the chance for proper justice. An act that has caused fear in marginalized communities should be repealed and replaced with more suitable legislation that is very clear and explicit with its terminology and does not contradict the Constitution and undermine the international legal framework. Therefore, Sri Lanka should lay down a new foundation that is more inclusive and respectful of everyone in the country. While this could seem unachievable, starting from the grassroots level is the first step towards a more peaceful society.

[1] Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 https://www.icnl.org/wp-content/uploads/Prevention-of-Terrorism-Temporary-Provisions-Act-no-48-of-1979.pdf [accessed: 11 Feb 2025].

[2] Ibid.

[3] Locked Up Without Evidence: Abuses under Sri Lanka’s Prevention of Terrorism Act" (29 January 2018) https://www.hrw.org/report/2018/01/29/locked-without-evidence/abuses-under-sri-lankas-prevention-terrorism-act  [accessed: 11  Feb 2025].

[4] Expansion of IS in South Asia" (IAS Parliament, 26 April 2019) https://www.iasparliament.com/current-affairs/easter-attacks-in-sri-lanka-expansion-of-is-in-south-asia  [accessed: 11  Feb 2025].

[5] Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979, [1979] Ceylon Gvt Gaz (No. 2,217).

[10] Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979.

[11] Ibid.

[12] Ibid.

[13] Evidence Ordinance (Sri Lanka) https://www.lawnet.gov.lk/evidence-ordinance/ [accessed: 11  Feb 2025].

[14] Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 [1979] Ceylon Gvt Gaz (No. 2,217).

[15] Sri Lankan Constitution, available at: https://www.parliament.lk/files/pdf/constitution.pdf.

[16] "Sri Lanka to reform terror law to keep EU trade deal" [October 05, 2021] available at: https://www.thehindu.com/news/international/sri-lanka-to-reform-terror-law-to-keep-eu-trade-deal/article36847488.ece [accessed: 11  Feb 2025].

[17] "Sri Lanka: Resuming Death Penalty a Major Setback" [June 30, 2019], available at: https://www.hrw.org/news/2019/06/30/sri-lanka-resuming-death-penalty-major-setback   [accessed: 12  Feb 2025].

[18] Civil Society Collective in Sri Lanka, "FACTSHEET – UPR 2017 – SRI LANKA" [2017], available at: https://www.upr-info.org/sites/default/files/documents/2017-10/counter_terrorism_factsheet_srilanka_2017.pdf   [accessed: 12  Feb 2025].          

[19] Naveera Perera, "Understanding Sri Lanka's Controversial Anti-Terrorism Bill 2023: Why Calls to Repeal the PTA Persist" [May 16, 2023], available at: https://www.jurist.org/features/2023/05/16/understanding-sri-lankas-controversial-anti-terrorism-bill-2023-why-calls-to-repeal-the-pta-persist/  [accessed: 12  Feb 2025].

[20] Geneva Convention Relative to the Treatment of Prisoners of War [1949], available at: https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.32_GC-III-EN.pdf [accessed: 12  Feb 2025].               

[21] Human Rights Watch, "Repression of Tamil Protesters and Critics in Sri Lanka" [2007], available at: https://www.hrw.org/reports/pdfs/s/srilanka/srilanka924.pdf [accessed: 12  Feb 2025].

[22] Universal Declaration of Human Rights [1948], available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights [accessed: 12  Feb 2025].

[23] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) (Office of the United Nations High Commissioner for Human Rights) https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading [accessed: 12  Feb 2025].

[24] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) (Office of the United Nations High Commissioner for Human Rights) https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights  [accessed: 12  Feb 2025].

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Introduction: Profession Under Siege

The legal profession in India has long been the bedrock of justice, defending constitutional values and standing as the last line of defense against state excesses. Lawyers have played a pivotal role in shaping the country’s legal and democratic framework, from spearheading independence movements to challenging draconian laws. The independence of the Bar, which allows legal professionals to function without external interference, has been a fundamental principle in upholding justice. However, the very foundation of this autonomy is now under threat.

The Advocates (Amendment) Bill, 2025, recently proposed by the Union Law Ministry, has triggered an unprecedented backlash from the Bar Council of India (BCI). The BCI, in an urgent and strongly worded statement, has expressed “profound concerns” over multiple provisions in the bill, warning that it could “demolish the very concept of autonomy and independence of the Bar.” In its official representation to the Law Ministry, the Council alleges that the bill includes “unilateral insertions” that were never part of previous consultations and that many of its provisions were drafted without the consent or approval of the legal fraternity.

This crisis is not just a minor regulatory dispute, it is a defining moment in the history of Indian legal practice. The bill proposes radical changes, such as allowing the government to nominate members to the BCI, granting the central government direct authority over bar councils, and curtailing the right of advocates to protest. If implemented, these changes will fundamentally alter the structure of legal self-governance, placing lawyers under excessive government control and weakening their independence.

The response from the legal community has been swift and intense. Lawyers in Delhi District Courts have already gone on strike, and a nationwide agitation is on the horizon. The BCI has made it clear that unless the government retracts or revises these provisions, it will mobilize the entire legal fraternity to resist these changes, both through legal action and large-scale protests.

At the heart of this confrontation lies a fundamental question: Should the legal profession be governed by an independent body of lawyers, or should the government assume control over legal practice and professional conduct? This article examines the background, provisions, and implications of the Advocates (Amendment) Bill, 2025, shedding light on why it has triggered such intense opposition and what is at stake for the future of the Indian legal profession.

The Historical Context of Legal Regulation in India

To understand the gravity of the current crisis, it is crucial to examine the historical evolution of legal regulation in India. The Advocates Act, 1961, was a landmark law that brought uniformity, professionalism, and self-regulation to the legal field. Before this Act, the legal profession was fragmented, with different courts and jurisdictions applying varying standards for advocacy. Recognizing the need for a unified regulatory body, Parliament enacted the Advocates Act, which led to the establishment of the Bar Council of India (BCI) and State Bar Councils as independent, self-regulating bodies.

The Advocates Act was designed to ensure that lawyers were governed by their peers, rather than by bureaucrats or politicians. The BCI was given extensive powers to regulate legal education, establish professional conduct norms, discipline advocates, and oversee enrollments. This framework was based on the principle that lawyers, as officers of the court, should remain free from political or executive influence, so that they can defend the rights of citizens without fear or bias.

Over the years, there have been several attempts by different governments to increase oversight over the legal profession, often under the pretext of reforms. The most notable example was in 2017, when the Law Commission proposed giving the government greater control over disciplinary proceedings against lawyers. The BCI and State Bar Councils strongly resisted this move, arguing that it would compromise the integrity of the legal profession and allow political interference in lawyer-client relationships. Ultimately, the proposal did not pass into law, but it set a dangerous precedent for future interventions—one that has now materialized in the Advocates (Amendment) Bill, 2025.

The Controversial Provisions of the Advocates (Amendment) Bill, 2025

The Advocates (Amendment) Bill, 2025 introduces several provisions that fundamentally alter the legal profession’s regulatory framework. The most contentious among them include:

1. Government Nominees in the BCI (Section 4(1)(d)) 

The bill proposes that the Central Government can nominate up to three members to the Bar Council of India. This move has sparked concerns among legal professionals, as it is seen as an attempt to place government loyalists within the BCI, thereby compromising its independence. Historically, the BCI has functioned as a self-regulatory body ensuring that the legal profession remains free from external influences. However, with government nominees having a say in crucial decisions, the impartiality and autonomy of the BCI could be significantly undermined. The BCI has strongly opposed this provision, arguing that it was never discussed in prior consultations and was inserted arbitrarily. If implemented, this provision may lead to increased political interference in matters such as legal education, professional conduct rules, and disciplinary actions against advocates, ultimately eroding the independence of the legal profession.

2. Direct Government Control Over the BCI (Section 49B)  

The bill grants the Central Government the power to issue directives to the BCI, which would be binding. This is a major shift from the current framework where the BCI operates independently in regulating the profession. The BCI has termed this provision “wholly unacceptable,” arguing that it effectively turns the BCI into a government-controlled body rather than an autonomous regulator. Legal experts have raised concerns that such sweeping powers could be misused to target dissenting lawyers, influence bar council elections, or weaken opposition voices within the legal community. Given that the legal profession plays a pivotal role in upholding the rule of law and constitutional rights, placing it under direct government control raises fears of undue influence that could compromise its integrity.

3. Regulation of Foreign Lawyers and Law Firms 

One of the most debated provisions in the bill is the shift of regulatory authority over foreign legal practitioners from the BCI to the Central Government. This move directly contradicts a Supreme Court ruling in the AK Balaji case, which held that the BCI should regulate foreign law firms. The BCI has expressed strong objections to this change, arguing that handing over this power to the government creates room for favoritism and a lack of transparency in allowing foreign legal entities to operate in India. The entry of foreign lawyers and firms has long been a contentious issue, with Indian legal professionals concerned about the potential dilution of opportunities and standards within the profession. The BCI has already framed comprehensive regulations in 2022 to govern the entry of foreign legal practitioners, and it insists that this authority should remain within its domain to maintain regulatory consistency and fairness.

4. Curtailment of Lawyers’ Right to Protest

The bill introduces strict prohibitions on strikes and boycotts by advocates, treating them as professional misconduct. The BCI has strongly opposed this provision, arguing that it is an attack on lawyers’ fundamental right to protest against judicial or legislative injustices. Historically, lawyers have played a crucial role in advocating for legal and social reforms through protests and collective action. The BCI contends that existing contempt laws already provide mechanisms to prevent disruptions in court proceedings, making this provision unnecessary. By restricting strikes and boycotts, the bill may prevent legal professionals from effectively voicing their concerns about injustices within the legal system.

5. Changes to the Enrollment Fee Structure 

The bill proposes a significant change by allowing the Central Government to determine enrollment fees for new advocates, thereby removing the BCI’s control over this matter. The BCI has raised serious objections to this, warning that it could lead to arbitrary fee structures, making it harder for young lawyers to enter the profession. The enrollment fee is a crucial aspect of legal education and professional entry, and any abrupt changes could impact accessibility to the legal field. The BCI had earlier proposed a fixed fee structure with periodic revisions based on inflation, ensuring that aspiring lawyers could plan their entry into the profession without sudden financial burdens. Handing over control of fees to the government may create instability and uncertainty for law graduates seeking enrollment.

6. Erosion of Disciplinary Powers of the BCI 

The bill introduces strict timelines for resolving complaints against lawyers, with penalties imposed on bar councils if they fail to meet deadlines. While efficiency in disciplinary matters is important, the BCI argues that imposing rigid deadlines could lead to hasty and unjust decisions. The legal profession requires careful deliberation in addressing disciplinary matters to ensure fairness and due process. Imposing penalties on bar councils for delays may create undue pressure, leading to compromised decision-making that may unfairly impact advocates. Instead of rigid deadlines, the focus should be on improving administrative efficiency within the existing framework to ensure timely yet fair resolutions. 

The Road Ahead: Will the Legal Fraternity Surrender or Fight?

The Advocates (Amendment) Bill, 2025, represents one of the biggest threats to legal autonomy in India’s history. If passed in its current form, it will place the BCI under direct government control, restrict lawyers’ rights, and weaken the profession’s ability to self-regulate. The BCI has made it clear that it will not accept these changes without a fight. With lawyers already mobilizing against the bill, the coming months will determine whether the legal profession can defend its independence or whether it will be forced into submission by the state.

The battle for the soul of the Indian legal system has begun. The outcome of this struggle will have far-reaching consequences, not only for lawyers but for the broader principles of judicial independence and constitutional democracy. A legal profession stripped of its autonomy may find itself unable to challenge executive overreach, weakening the system of checks and balances that underpins Indian democracy.

The question remains: will the legal fraternity rise to the challenge, or will it yield to external pressures, forever altering the landscape of justice in India?

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On February 19, 2025, the Supreme Court of India upheld the Medical Council of India’s (now the National Medical Commission’s) regulations that mandate students wishing to pursue MBBS from foreign medical universities to qualify for the National Eligibility-cum-Entrance Test (NEET). The Court dismissed the challenge to these regulations, reinforcing the importance of a standardized eligibility process for students seeking admission to medical courses abroad. The petitioners, who sought an exemption from the NEET qualification requirement, were denied the relief. This ruling has significant implications for Indian students planning to study medicine abroad.

Key Aspects of the Ruling

• NEET Mandate for Eligibility Certificate:
  The Supreme Court upheld the requirement that students must qualify the NEET exam in order to obtain an Eligibility Certificate from the National Medical Commission (NMC) for pursuing an MBBS degree from a foreign university. The Court stated that this requirement ensures a fair and transparent procedure for granting eligibility. The regulation was introduced by amendments in 2001 and 2018.
• Court’s Justification on Regulations:
  A bench of Justices BR Gavai and K Vinod Chandran noted that the eligibility regulation was in line with the Medical Council Act. It concluded that the regulation did not conflict with the enactment and that it was neither arbitrary nor unreasonable. The Court emphasized that the NEET qualification requirement ensures that students seeking to practice medicine in India meet certain minimum standards.
• Dismissal of the Exemption Request:
  The petitioners argued for a one-time exemption from the NEET requirement, but this request was denied. The Court stated that any candidate who chose to pursue a medical course abroad after the regulation came into effectcould not seek an exemption. “Obviously, with open eyes, after the amended regulations came into effect if any candidate chose to obtain admission in a foreign institution for pursuing a course leading to a primary medical qualification, they cannot seek for an exemption from the regulations”, the Court observed.
• Legal Basis for the Regulation:
  The Court dismissed the argument that the regulation should have been amended through a change in the Medical Council Act itself. Instead, it upheld the regulation issued by the Council under Section 33 of the Act, which empowers the Council to set the eligibility requirements for admission to medical institutions abroad. The Court found that the regulations were not in violation of the Constitution or the Act.
• Historical Background of the Regulations:
  • In 2001, the Indian Medical Council Act, 1956 was amended to incorporate sub-sections (4A) and (4B)under Section 13. These provisions required students to obtain an Eligibility Certificate from the Medical Council before enrolling in a foreign medical institution.
  • In 2018, a further amendment to the Foreign Medical Institution Regulation, 2002 mandated that candidates wishing to pursue undergraduate medical courses abroad must qualify for NEET. This was introduced as Clause 8(iv).
• Outcome of the Case:
  The Court dismissed the petitions challenging the regulations, concluding that the requirement of qualifying NEETdid not restrict students’ rights to practice medicine outside India. The regulations were deemed appropriate for ensuring that those pursuing medical degrees abroad were eligible to practice in India.

Case Title: ARUNADITYA DUBEY VERSUS MEDICAL COUNCIL OF INDIA AND ANR.

Attachment:

On February 19, 2025, the Supreme Court of India ruled on the permissibility of registering a second First Information Report (FIR) in cases where a new or distinct offence arises, even if related to an earlier incident. The Court emphasized that while a second FIR cannot be filed for the same offence, a second FIR is allowed when a separate offence or new facts surface. The case at hand involved an appeal by the State of Rajasthan against the High Court's decision to quash a second FIR against an official of the Bio-fuel Authority, Surendra Singh Rathore, who was accused of widespread bribery.

The judgment provided important guidelines about when the registration of a second FIR would be legally permissible. The ruling clarified that while a second FIR for the same offence is impermissible, a second FIR for a different offence is permissible.

Key Circumstances for Registering a Second FIR

The Supreme Court outlined the circumstances under which a second FIR could be registered:

• When the second FIR is a counter-complaint or presents a rival version of a set of facts, in reference to which an earlier FIR has already been filed.
• When the scope and nature of the two FIRs are distinct, even if both arise from the same set of circumstances.
• When investigation or other avenues reveal that the facts in the earlier FIR are part of a larger conspiracy.
• When new facts or circumstances are uncovered by investigation or individuals related to the incident that were previously unknown.
• When the incident is separate and the offences involved, whether similar or different, merit a new FIR.

Case Details

The case before the Supreme Court involved the State of Rajasthan's appeal against the High Court's ruling that had quashed the second FIR filed against Surendra Singh Rathore, an official of the Bio-fuel Authority.

• The first FIR was filed after three individuals complained to the Anti-Corruption Bureau (ACB), alleging that Rathore demanded a bribe for bio-diesel sales and license renewal.
• The second FIR, based on ACB surveillance, accused Rathore of being involved in a wider bribery scheme with middlemen. The respondent filed a petition under Section 482 CrPC, arguing that the second FIR was repetitive and an abuse of process.
• The High Court quashed the second FIR, agreeing that the allegations were repetitive. However, the Supreme Court found this decision to be erroneous, stating that the two FIRs had distinct scopes.

Supreme Court's Ruling

The Supreme Court rejected the High Court's decision, noting that the two FIRs were distinct:

• “The FIR prior in point of time refers to a particular incident and the action taken therein is limited. The second FIR pertains to the larger issue of widespread corruption in the concerned department and, therefore, is much larger in its scope than the previous FIR.”

The Court cited the case of Anju Chaudhary v. State of U.P. (2013) 6 SCC 384, where the concept of a second FIRwas discussed at length, concluding:

• “There cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered.”

Given that the second FIR addressed a broader issue of corruption, the Court allowed the appeal and set aside the High Court's ruling.

Case Title: STATE OF RAJASTHAN VERSUS SURENDRA SINGH RATHORE

Attachment:

Introduction

The Border Security, Asylum and Immigration Bill 2025[1] is a significant step towards strengthening border security and combating organized immigration crime. The bill was introduced on 30th January 2025, as part of a strategy to handle the ongoing migration crises in the country. The proposed legislation is inspired by counter-terrorism laws and aims to reflect the same effectiveness. It would grant law enforcement (not limited to the police) the authority to arrest and deport individuals who have been involved in illegal migration.

The bill consists of 57 clauses and two schedules. The government views this as an important step as it moves towards repealing much of the Asylum Legislation passed under the direction of the Sunak administration. The legislative proposal promises to abolish the Safety of Rwanda (Asylum and Immigration) Act 2024 and repeal provisions from the Illegal Immigration Act 2023[2].

Key Provisions

There is an ongoing crisis of Illegal immigration through small boats.[3] The border security has not been enough as the number of immigrants keeps increasing. This has caused an uproar in the country due to the widespread crimes[4] that are now happening, such as grooming rings, gang-related crimes, knife crimes, and drugs. The legislative document aims to bring several legal modifications to the system as well as the law.[5] The laws proposed under the bill cover three elements which with the correct implementation could curb the ongoing issue. Elements:

1. Modernizing the Asylum and Immigration System.
2. New Border Security Command within the Home Office.
3. Powers reserved to combat terrorism would be applied to immigration crime.

These three elements apply a new system and rigidity. Under the new law proposed, law enforcements would receive more authority which will enhance their ability to act rapidly which further would decrease the number of boat smuggling. The bill grants them preventative measures[6] without compromising on individual rights. The authority has the power to confiscate and seize all or any electronic devices without arresting the individuals who entered illegally if intelligence suggests that the confiscation could help uncover a network of smugglers.

The laws under the bill closes all open ends and loopholes existing in the current immigration laws and heavily focuses on enforcement measures. One of the key provisions is the establishment of a new unit, Border Security Command[7], which would take direction from the Home Secretary. The unit would be responsible for investigations of organized immigration crime, using preventative tools granted by the bill, and acting swiftly on deportations. As directed in the bill, the government would focus on “Serious Crime Prevention Orders” which would hamper and limit the activities of any individual suspected of being responsible or involved with organized migration.

The bill makes it harder for immigrants who arrive without complete and legitimate documentation to apply for asylum in the country. Under the new law, immigrants would have restricted rights to appeal, a fast-track process would be adopted to deport individuals with weak claims for asylum, and immediate removal of illegal immigrants who travelled via “safe third world” countries before entering the UK. Criminal Offenders of foreign nationality who have been prosecuted for serious crimes would face immediate and automatic deportation from the state.

The legislative document has introduced interim orders to strengthen the new system against organized migration. Such orders would permit the National Crime Agency and law enforcements, including the police, to file an application directly to the High Court requesting restrictions for individuals while the full order is still underway. These impositions will include- Social Media blackout which can prevent the suspect from networking through any channels and Travel Ban. These restrictions can prevent the suspect from passing information, warning others in the network, and running away.

A Biometric Data system consisting of facial recognition and fingerprint scans has been introduced under the bill. The proposed law would require authorities to collect biometrics as soon as the law comes into force to identify people who pose a risk to endanger border and national security. The government would be granted more power to keep a check on individuals of foreign nationality who were transported by the UK government without a visa during extraordinary circumstances of crises. The identification of illegal immigrants who pose a threat to the country and/or neighbouring states and those suspected of smuggling people will be communicated to parting countries which will facilitate support.

The bill introduces a provision for “Protecting Life at Sea”. It will be considered an offence to endanger life at sea by smuggling people through water. Any individual who enters illegally and creates a risk of death or risk of serious injury while crossing the sea would face criminal prosecution and an increased sentence up to 5 years.

Anybody suspected of assisting in transporting illegal immigrants into the UK, providing fraudulent identification and documents to undocumented individuals, and giving employment to individuals who do not have legal papers and residence status would be prosecuted for longer than before with some offenses whose imprisonment has increased up to 14 years.

The detention centres would be used at a higher capacity as a temporary residence for illegal immigrants who are to be deported back to their home country. If the authorities deem it necessary to detain an individual for longer than required, they have the permission to do so under this bill. This is deemed a necessity by the government as those who are rejected for asylum often run away or disappear.

Need for Legislative Reform

Border security is a national duty to protect economic and national security. The overwhelming number of illegal immigrants has caused a hostile environment in the state leading to a shift in the nature of the laws. The illegal migration has allowed gangs to build a network of smuggling operations which has led to illicit financial activities accompanied by serious violent crimes.[8]

In 2024, 36,816 migrants arrived in the country on 695 small boats, which is a significant increase in number than the year before.[9] The overcrowding on boats has led to several fatalities as 53 people travel in 1 boat. The United Nations agency -International Organization for Migration tracks the number of people who die traveling through sea and they estimate around 78 migrants died while attempting to enter the country through water[10].

The Illegal Migration Act was unable to stop the migration through small boats which has led to excess of people and caused a backlog. Most of the undocumented migrants are eligible for accommodation as per the current law. However, there is no prospect to remove individuals, even those who migrated from safe countries. The asylum seekers from Rwanda who were permitted in the country under the Migration and Economic Partnership reached the limit after the first year itself creating a high number of migrants. The United Kingdom has spent more than 5 billion pounds in asylum support and 8 million pounds per day of taxpayer money on hotels for asylum seekers.

The stance of International Law is always in favour of the protection of human rights and migrants. The principle of non-refoulement would not be broken if the bill imposes proper enforcement and organized implementation. While the right to family life and due process is fundamental, the growing crime and illegal migration has caused disruption in the law and order of the country. The statement “make streets safe again”, was stated while presenting the bill in the House of Commons, which is the overall goal of this bill.

Conclusion

The Border Security, Asylum, and Immigration Bill 2025 reflects a more stern and rigid structure to combat illegal migration. The new law will focus on proper and efficient administration responsible for deportation and strengthen the enforcement measures. While this decisive decision might come off as harsh, illegal immigrants by definition means ‘illegal’. The protection of human rights is a fundamental responsibility of the government; however, the primary obligation is towards its citizens.

The current immigration system has led to a wave of undocumented people entering the country. When the number of people is overwhelming,[11] the resources start falling short, benefitting no one. A fair system can be fast and effective at the same time. The new bill can combat the crises and give opportunity to those who have opted for the legitimate and lawful route. This will decrease a substantial amount of economic exploitation and burden on the taxpayer’s money.

The objective is to ensure that a fair process is followed swiftly. Countries like Australia, Poland, and Hungary have implemented stricter policies for border security and have seen a significant decrease in the number of people illegally coming in. It is the right of an individual to apply for asylum, and it is the right and obligation of a state to give asylum to those who do not pose a threat to their peace and security.

Usually, the critics argue that women and children in unsafe countries would also be subjected to these harsh laws. However, the number of young and older men who enter illegally is shockingly high. The bill focuses on creating a disciplined and organized system that protects its citizens while protecting the rights of immigrants.

In conclusion, a state can only take so long to take immigrants till there is stability in the country. To protect that stability, stricter laws and proper checks and balances are needed. Sovereignty allows the nation to make these decisions to honour its principal obligation towards the people of the United Kingdom.

[1] UK Parliament, ‘Border Security, Asylum and Immigration Bill’ (Government Bill, House of Commons, Session 2024-25) https://bills.parliament.uk/bills/3929.

[2] House of Commons Library, ‘Border Security, Asylum and Immigration Bill 2024-25’ (Research Briefing, 31 January 2025),  https://commonslibrary.parliament.uk/research-briefings/cbp-10185/.

[3] UK Government, Transparency Data: Small Boat Activity in the English Channel https://www.gov.uk/government/publications/migrants-detected-crossing-the-english-channel-in-small-boats.

[4] National Crime Agency, National Strategic Assessment 2024 of Serious and Organised Crime https://www.nationalcrimeagency.gov.uk/threats/nsa-firearms-2024.

[5] UK Government, Border Security, Asylum and Immigration Bill: Overarching Information Factsheet (30 January 2025) https://www.gov.uk/government/publications/border-security-asylum-and-immigration-bill-2025-factsheets/border-security-asylum-and-immigration-bill-overarching-information-factsheet.

[6] UK Parliament, Border Security, Asylum and Immigration Bill: Explanatory Notes (HC Bill 173, 2024-25) https://publications.parliament.uk/pa/bills/cbill/59-01/0173/en/240173en.pdf .

[7] Border Security, Asylum and Immigration Bill, Volume 761: debated on Thursday 30 January 2025 https://hansard.parliament.uk/commons/2025-01-30/debates/25013042000016/BorderSecurityAsylumAndImmigrationBill#:~:text=Introduced%20today%2C%20the%20Border%20Security,thereby%20disrupting%20their%20ability%20to.

[8] UK Government, No Place to Hide: Serious and Organised Crime Strategy 2023-2028 (December 2023) https://assets.publishing.service.gov.uk/media/65798633254aaa0010050bdc/SOC_Strategy_23-28_V9_Web_Accessible.pdf.

[9] UK Government, Accredited Official Statistics: How Many People Come to the UK Irregularly? (28 November 2024) https://www.gov.uk/government/statistics/immigration-system-statistics-year-ending-september-2024/how-many-people-come-to-the-uk-irregularly.

[10] International Organization for Migration (IOM), Missing Migrants Project: Europe https://missingmigrants.iom.int/region/europe.

[11] UK Government, Official Statistics: Irregular Migration to the UK, Year Ending June 2024 (22 August 2024) https://www.gov.uk/government/statistics/irregular-migration-to-the-uk-year-ending-june-2024/irregular-migration-to-the-uk-year-ending-june-2024.

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Introduction

The United States of America, once known as the world's superpower, now stands as a failing democracy. The ‘American Dream’ is becoming more of a façade day by day due to the underlying fascist belief in the current administration and the 49.8% of Americans[1] who voted to bring the republican party into office.

In 1973, Roe v Wade[2], the United States Supreme Court passed a historical ruling. The court decided that the decision to have an abortion belongs to the female and not the government. This case made it clear that the Fourteenth Amendment[3] of the American Constitution guarantees the right to liberty, and whether to have an abortion or not falls under this amendment. The Court has since reaffirmed that the right to abortion, personal decisions regarding family and relationships, and bodily autonomy fall under essential liberty, which is protected by the amendment. Roe v Wade was a significant step towards the protection of women’s rights. However, in 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization.[4]

The decision of the court in this case has and will continue to severely impact the reproductive rights of women. The ruling has reversed nearly 50 years of precedent and has forged a dangerous path for the country. This has blurred the lines between state and belief. The US Constitution is a document based on a fundamental rule of separating Church and State. The ‘pro-life’ belief is rooted in Christian fundamentalism. The supporters of this ruling and movement have justified that abortion is ‘morally wrong’. The lawmakers failed to remain unbiased and neutral to uphold a secular governance. What remains absurd is the fact that more men were deciding on the women’s bodily autonomy than the women themselves.

Reversal of the Constitutional Right- Implications

History, from any part of the world, is proof that concentrated authority, discretion, and unchecked power in the hands of men has often led to compromise on the rights of women and other marginalized groups. The court left the states to decide whether abortion should be banned or allowed in their jurisdiction.

The decision taken by the court in Roe v Wade was rooted in the Due Process Clause of the Fourteenth Amendment protecting and recognizing women’s right to privacy and body autonomy. By disregarding the precedent set in Roe, the nature of American law and policy has been exposed. Slowly but visibly there has been a change in the authority. Now, the decision of life and death has been given in the hands of certain individuals who have subjected women’s rights to their propaganda and political ideologies.

As history has repeatedly shown, the result of such authority has led to 41 states banning the right to abortion in their jurisdiction. Twelve states have completely banned abortion with no exception to pregnancy by rape or incest.[5] Four other states have enforced a six-week ban where abortion is legal till fetal cardiac activity cannot be detected. In simpler terms, a woman can exercise her right to abortion till the heartbeat is not detected. However, it takes around 6 weeks or more for a woman to realize she is pregnant, making abortion inaccessible in these four states as well. 22 states ban abortion after 18 weeks.

As the decision of overturning Roe and its support was based on morals and values instead of just law, it opens a new avenue for criticism unlike other cases. Every pregnancy entails some kind of risk to the life of the woman.[6] The United States already has the highest maternal mortality rate among wealthy democratic states.[7] Despite that, the Trump administration has recently blocked foreign aid in contraceptive care for women. When contraceptives become inaccessible (to women), they are at a high risk of unintended pregnancies. It is estimated that 8,340 women[8] with unintended pregnancies, who rely on contraceptives, will die due to complications during pregnancies or childbirth. This decision taken by the government puts two lives at risk instead of one.

In a democracy, everyone is equal and has the right to make their own decisions. These are civil and personal liberties. The interpretation of these actions is that the administration has no regard for individual choice, especially women. To sum up, in plain sight, taking away a fundamental right.

The judgment will create a certain legal instability in the system as the court failed to follow the principle of Stare decisis. This doctrine sets a standard of stability and judicial restraint for other courts. The literal translation is “let the decision stand”, meaning courts must adhere and respect the precedent passed before. Specifically in cases where a fundamental right is in question. The legal rationale dictates that the court selectively applied constitutional principles. The Supreme Court has now opened a door for people to challenge other fundamental and civil rights on which the nation was built.

Furthermore, the ban on abortion forces women to keep the child even if it’s a product of incest, rape and even when there is a threat to the mother’s life. This approach keeps the life and right of a fetus above the right and life of a woman or girl child. It is not only disturbing but legally problematic. Bringing a life into the world means being prepared to take care of the child. In a country like the US, where health insurance is causing debt, unemployment is at its peak, the current generation cannot afford to buy a house or a car till late thirties, college debts are never-ending, how will the low-income class population take care of another human being? If the child is born with any disability, that makes it all the more difficult and expensive.

A young girl being forced to deliver a baby who is a product of rape is not only inhumane but ruins the life of both children. The effect on mental health later in life would be extremely harmful. Apart from this, if a woman does not want a child for any other reason, in this day and age, legally she should be able to exercise her right to abortion.

In Texas, a 28-year-old woman died after doctors delayed her abortion for 40 hours.[9] Experts have stated that her death was preventable if the doctors acted swiftly. However, the doctors state that the abortion ban has been written vaguely, which can lead to medical caregivers getting sued or arrested for providing abortion even if there is a 6-week window. In Texas, the doctors cannot intervene unless there is a medical emergency. While the woman was in excruciating pain for 40 hours, the doctors did not act as ‘medical emergency’ is a broad and vague term used in a legal document.

The overturn of Roe has far-reaching consequences that will end with more women dying, children being born into poverty (intentionally due to the government), and the country closing the gap between church and state more and more. The current legal framework is influenced by fundamental religious beliefs and certain individualistic moral values. While exercising religion and morality is one’s right, reflecting it on policies and law isn’t. The challenge is to restore the balance that respects the principle of justice and right to liberty.

Conclusion

The United States of America faces a new legal reality which can lead to state-imposed constraints and restrictions in other areas and fields as well. Under these policies, women and children will now have to endure significant physical and psychological hardship which could have been preventable. A faith-based morality approach instead of a legal one can and will do more harm than good. If at all anyone is benefitting from the current legal climate, it is the current government.

The legislature as a body has the responsibility to shape the nation. Involving personal and political individual beliefs has caused an entire gender to fall under a draconian policy. This can lead to the future of the nation on a dangerous precedent, which can shape the future of civil rights.

This is not just about the abortion ban. The ramification of this reversal destabilizes judicial consistency and puts other marginalized communities at risk. The laws have been developed over time to protect vulnerable people and create a civilized environment with equal opportunity for all. With the abortion ban, other protected rights are at risk as it should not have been that quick and easy to change the interpretation of civil rights. Those who were unaffected before the protection of civil rights were men, and those unaffected now are again men. Those in control pulling the strings of reproductive rights are also men.

This chilling effect on women and health care providers has created a complex scenario. In light of these changes, it is imperative to critically assess the foundational values of the country. The shift from jurisprudence to personal ideologies is not only dangerous but is an indication and reminder of how states end up with authoritarian governments. Ultimately, the challenge lies in restoring the rights of all while upholding the principles of justice and liberty.

[1] Lindsay JM, ‘The 2024 Election by the Numbers’ (Council on Foreign Relations, 18 December 2024) https://www.cfr.org/article/2024-election-numbers.

[2] Center for Reproductive Rights, ‘State Bans on Abortion Throughout Pregnancy’ https://reproductiverights.org/roe-v-wade/.

[3] United States Constitution, Amendment XIV https://constitution.congress.gov/constitution/amendment-14/.

[4] Delaney N, ‘Roe v. Wade Has Been Overturned. What Does That Mean for America?’ (Harvard Kennedy School, 28 June 2022) https://www.hks.harvard.edu/faculty-research/policy-topics/fairness-justice/roe-v-wade-has-been-overturned-what-does-mean.

[5] Guttmacher Institute, ‘State Bans on Abortion Throughout Pregnancy’ https://www.guttmacher.org/state-policy/explore/state-policies-abortion-bans.

[6] Jackson Women’s Health Organization v Dobbs, Brief for Respondents, No 19-1392 (US Supreme Court, Writ of Certiorari to the US Court of Appeals for the Fifth Circuit) https://www.supremecourt.gov/DocketPDF/19/19-1392/192267/20210913143126849_19-1392bs.pdf.

[7] Center for Reproductive Rights, ‘Legal Analysis: What Dobbs Got Wrong’ (15 March 2023) https://reproductiverights.org/what-dobbs-got-wrong/.

[8] Guttmacher Institute, ‘Family Planning Impact of the Trump Foreign Assistance Freeze’ (January 2025) https://www.guttmacher.org/2025/01/family-planning-impact-trump-foreign-assistance-freeze.

[9] The Guardian, 'Texas Woman Died After Being Denied Miscarriage Care Due to Abortion Ban, Report Finds' (30 October 2024) https://www.theguardian.com/us-news/2024/oct/30/texas-woman-death-abortion-ban-miscarriage.

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On February 18, 2025, the Supreme Court of India issued significant directions regarding the premature release of convicts under Section 432 of the CrPC and Section 473 of the BNSS. The court ruled that states and union territories must automatically consider all eligible convicts for premature release, even if the convicts or their representatives do not submit an application. The court emphasized that when a state or union territory has an established policy for granting remission, it is their duty to review the cases of all eligible convicts, ensuring that the process is fair and non-discriminatory.

Key Court Observations:

• The power under Section 432(1) must be exercised fairly and reasonably, ensuring that the process respects the convict's rights under the Constitution.
• States cannot require convicts to submit an application for remission if they are eligible for release. Eligible convicts must be considered automatically based on the established policy.
• States without a policy for remission are directed to come up with a comprehensive policy within two months. This policy can be either a standalone document or integrated into prison manuals.

Conditions for Remission:

• Reasonable Conditions: The conditions attached to the granting of remission should be clear, achievable, and reasonable.
  • These conditions must aim at rehabilitating the convict and ensuring that they do not reoffend.
  • The conditions should consider:
    • The nature of the crime committed.
    • The convict’s criminal background.
    • Public safety concerns.

Revocation of Remission:

• Breach of Terms: Remission can only be revoked if the convict breaches the terms and conditions on which remission was granted.
• Brief Reasons: When remission is revoked, brief reasons must be recorded, as revocation directly impacts the convict's right to liberty under Article 21 of the Constitution.
  • The convict must be provided a show cause notice stating the reasons for cancellation and given an opportunity to respond.

Recording of Reasons:

• Transparency: The Supreme Court directed that reasons must be recorded for both granting and denyingremission.
  • This ensures transparency and safeguards the convict’s right to fairness in the process.
  • Recording of reasons is essential for ensuring that the power to grant remission is exercised in a just and reasonable manner.

Directions Issued by the Supreme Court:

• Obligation for States with a Policy:
  • States that have an established remission policy must automatically consider eligible convicts for premature release, even if no application is filed by the convict or their representative.
• States Without a Policy:
  • States that do not currently have a policy for remission are directed to formulate one within two months.
• Conditions for Remission:
  • The conditions for granting remission should be reasonable, clear, and achievable, ensuring that the convict can comply without undue hardship.
  • The conditions should prioritize rehabilitation and consider factors like the convict's criminal history and the nature of the crime.
• Reasons for Granting or Rejecting Remission:
  • When granting or denying remission, the appropriate Government must record brief reasons for the decision.
  • The convict should be informed of their right to challenge the decision and be provided a copy of the order.
• Revocation of Remission:
  • The revocation of remission must only occur if the convict breaches the conditions.
  • In case of revocation, the appropriate Government must provide brief reasons for the cancellation.
  • A show cause notice must be issued, and the convict must be given an opportunity to respond before revocation is finalized.
• Monitoring by Legal Services Authorities:
  • District Legal Services Authorities must monitor the implementation of these directives.
  • These authorities must maintain a record of eligible convicts and ensure that their cases are considered for premature release as per the policy.
  • The State Legal Services Authorities must work towards creating a portal for tracking the eligibility of convicts for remission, ensuring real-time updates.

Case Title: IN RE POLICY STRATEGY FOR GRANT OF BAIL, SMW(Crl) No. 4/2021

Attachment;

In a significant development, Kalinga Institute of Industrial Technology (KIIT) Vice Chancellor Prof Saranjit Singhissued a public apology on February 18, 2025, after a series of events sparked outrage among Nepali students at the institution. The controversy centers around the tragic death of a third-year BTech student from Nepal, who was found dead in her hostel room on February 16, 2025, and the subsequent handling of protests by her fellow Nepali students.

Details of the Apology and Actions Taken

Apology from KIIT’s Vice Chancellor

• Prof Singh expressed his deep regret over the way the incident and the protests were handled by the university.
• “We are extremely appalled by the untoward incident that took place on our campus on the evening of 16th February 2025. We are also regretful of the way some of us behaved towards the agitating students…” stated the Vice Chancellor in a letter shared on social media platform X.
• He condemned the irresponsible comments made by two officials during the protests, and announced their removal from service. “The comments made by two of our officers are extremely irresponsible. We have removed them from service,” he wrote.

Call for Resumption of Classes

• The Vice Chancellor also appealed to Nepali students to resume their academic activities, encouraging them to continue their studies without further disruption.

Disciplinary Action Against Officials

• The university took swift action by suspending two senior hostel officials and a senior administrative officer from the International Relations Office (IRO) pending an investigation.
• The Director of the Girls' Hostel and an Associate Professor of Computer Science were among the officials removed due to denigrating remarks made about Nepali students during the protests.
• These officials also issued a video apology for their comments.

The Death and Protests

The Incident

• KIIT Apologizes, Removes 2 Officials After Protests Over Nepali Student’s Suicide and Eviction OrderThe deceased student, a third-year BTech student, tragically took her own life after reportedly being harassed by a male student.
• The incident sparked widespread protests from Nepali students who demanded justice for their fellow student. They called for a high-level investigation into the suicide, citing the alleged harassment as the primary cause of her death.

University's Response and the Eviction Order

• Following the protests, KIIT's administration ordered the eviction of nearly 500 Nepali students from its hostels, escalating tensions on campus.
• Security personnel were deployed on the campus to manage the unrest, but this move only amplified the anger of the students.
• The protest intensified, with more than 100 Nepali students remaining on campus to demand further action and transparency regarding the investigation.

Political Reactions and Government Involvement

Nepal's Response

• The incident attracted attention from the Nepal government, with Prime Minister KP Oli announcing that two officials from the Nepal Embassy in New Delhi had been dispatched to Odisha to assist the protesting students.
• “The government is working through diplomatic channels and is in contact with the relevant authorities,” PM Oli stated in a post on X.

Police and Legal Actions

• The Bhubaneswar police detained the male student accused of harassing the victim. He is the son of a Bharatiya Janata Party (BJP) leader in Lucknow. A case has been filed against him for abetting the suicide.
• The victim’s family has expressed confidence in the Odisha police and government, hoping for justice.
• Bhubaneswar's Deputy Commissioner of Police, Pinak Mishra, confirmed that two security personnel who were involved in the assault on protesting students have been arrested. An objective investigation is underway.

Political Fallout

• The incident also triggered a political debate in the Odisha Assembly, with opposition parties accusing the BJD-led state government of failing to maintain law and order.
• Pratap Deb, the BJD chief whip, criticized the BJP government for allowing the situation to escalate and tarnishing the state’s image.
• Congress MLA Tara Bahinipati has called for a judicial inquiry into the death of the Nepali student.
• In response, BJP MLA Tankadhar Tripathy condemned the incident but pointed out that the founder of KIIThad strong ties to the BJD, which he argued added a political dimension to the matter.

Tensions and University’s Statement

KIIT’s Clarification

• In a separate notice, KIIT clarified that it had scrapped the directive requiring Nepali students to leave the hostels. The university assured that all students, including Nepali nationals, would be treated with the utmost respect and security.

Ongoing Investigation

• The university and law enforcement agencies are committed to conducting a thorough and impartial investigationinto the circumstances surrounding the student's death.
• KIIT has pledged to take all necessary steps to ensure the safety and security of its students, particularly those from Nepal and other international backgrounds.

Source: THE HINDUSTAN

In a significant legal development, India's Supreme Court on February 18, 2025, expressed its intent to regulate obscene content online. The issue has come to light following the ongoing controversy surrounding the show "India's Got Latent." The Court now seeks the Union Government’s views on the matter. The controversy has raised pressing concerns about the lack of regulation surrounding online content, particularly on platforms like YouTube and other social media outlets.

Court’s Stance on the Issue

Supreme Court’s Concern

• The Supreme Court raised concerns about the growing misuse of online platforms like YouTube and other social media channels.
• The Court noted that obscene content is being posted without adequate oversight, leading to potential harm to society.

Vacuum in Regulation

• The Court highlighted the absence of a regulatory framework governing online content, describing it as a "vacuum."
• This regulatory gap, the Court noted, has allowed "so-called YouTube channels" to mislead viewers with inappropriate and offensive content.

Court’s Desire for Government Action

• The Supreme Court expressed that it would be "very happy" if the Government of India took proactive steps to regulate online content.
• Justice Surya Kant emphasized, “We would like to do something. If Government of India will willingly do it, we will be very happy. Otherwise, we are not going to leave this vacuum and this area... the way it is being misused by so-called YouTube channels and all these things are going on..."

Court's Collaboration with Legal Experts

Request for Legal Assistance

• The Court has called for the assistance of Attorney General R Venkataramani and Solicitor General Tushar Mehta.
• Their guidance is sought to address the legal complexities involved in regulating online content and establishing clear boundaries for freedom of expression and content moderation.