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Article by Annabelle Wilmott, If you have been reading the news or scrolling through Instagram recently, you probably noticed 16-year-old climate activist Greta Thunberg pop up on your feed. Her uncensored voice has echoed across the world, inspiring others to demand climate action from their governments and the private sector alike. Ahead of the UN Climate Action Summit last month, Greta traveled fifteen days in a zero-emissions boat across the Atlantic to New York, as she no longer uses air travel due to the negative impact it has on the environment. According to estimates, about 4 million people around the world joined Greta on September 20th to participate in the Global Climate Strike, making it the largest climate protest in history. The activists marched to demand that governments and businesses commit to net-zero carbon emissions by 2030. As part of the Global Climate Strike, employees from tech companies such as Amazon, Google, and Facebook walked out, demanding that their companies do more about climate change. Some businesses have already responded to those demands. For example, Amazon has committed to becoming net-zero by 2040 and has already placed an order for 100,000 electric delivery trucks. The “Greta effect" has also had an influence on consumers. According to a survey by Swiss Bank UBS, 20 percent of Western travelers have begun to fly less as “flight shaming” has increased with growing concern for the environment. The urgency to tackle climate change intensified after the UN released a report last year predicting that climate change could lead to catastrophic effects as soon as 2040, with increasing food shortages, wildfires, and the dying off of our coral reefs. The report warned that avoiding the most devastating effects of climate change requires immediate and unprecedented global action. It makes clear that we cannot stay within the 1.5°C threshold without removing coal as an electricity source and switching to renewable energy. In a passionate speech at the UN Climate Action Summit, Greta condemned world leaders for their inaction: “We are in the beginning of a mass extinction and all you can talk about is money and fairy tales of eternal economic growth. How dare you!” she exclaimed. While many leaders did not give Greta and other climate activists the commitments they demanded, she left them with a message: “We’ll be watching you.” Greta has invoked a new sense of urgency over the future of the planet. But to make the changes necessary to combat the most harmful effects of climate change, we must take immediate and unprecedented action to cut emissions.

Article by Suvam Kumar and Gaurav Chaliya, Introduction In the case of Dr. Vishnu Kumar Agarwal v. M/s. Piramal Enterprises Ltd (“Piramal case”), the National Company Law Appellate Tribunal (“NCLAT”) dealt with two important issues. Firstly, it dealt with the question of whether the creditor can file Corporate Insolvency Resolution Process (“CIRP”) against the principal debtor as well as against the guarantor. The NCLAT relied on Section 128 of the Indian Contract Act, 1872 which provides that the liability of the surety is co-extensive with that of the principal debtor unless it is otherwise provided by the contract. Hence, it was held that a creditor can approach the guarantor by initiating CIRP without having filed the CIRP against the principal borrower. Secondly, it dealt with the issue of whether two CIRPs can be initiated against two corporate guarantors for the same debt and the tribunal answered it in negative. However, the rationale adopted by the NCLAT has opened a Pandora’s Box regarding the interpretation of initiation of CIRP under the Insolvency and Bankruptcy Code, 2016 (“Code”). Brief of The Case In the instant case, the creditor initiated two CIRPs against the guarantors under Section 7 of the Code after the default by both the debtor and the guarantors. With regards to the first issue, NCLAT held that two CIRPs can be initiated simultaneously for same debt. However, while dealing with the second issue, the tribunal placed its reliance on Innoventive Industries Ltd. v. ICICI Bank and Ors., where various key terms were discussed. The case reproduced the definitions of terms like Default, Debt, Financial debt and Operational debt. However, the case relied upon did not provide any rationale or precedent for the bar on the initiation of two CIRP against two corporate guarantors for the same debt. The above mentioned case at no point discusses or furnishes any reason against the initiation of two CIRP against the corporate guarantors. It is a mere reproduction of statement of the law under Section 7 of the Code. Infirmities in the Verdict The verdict suffers from several infirmities which raise serious questions regarding the objectives of the Code. Firstly, the interpretation given in the Piramal case goes completely against the core principles of the Code. The purpose of the Code is resolution and not liquidation. Dr. T.K Viswanathan committee has also emphasized the need to provide a solution to the creditors when faced with the problem of default of the debtor. Therefore, any creditor, whether financial or operational, can initiate CIRP to recover the debts. The only requirement for triggering CIRP by creditor laid was that there should be sufficient evidence of default. Moreover, in the case of ICICI Bank v. Vista Steel Private Limited , the NCLAT has held that a CIRP can be initiated against the corporate guarantor even when a CIRP is admitted against the principal debtor. Therefore, the Piramal case goes completely against the settled position of simultaneous CIRP against the borrower and the guarantors. Additionally, there is no bar in the Code for initiating two CIRPs against two corporate guarantors. The NCLAT has wrongly presumed that the initiation of two CIRPs against two corporate guarantors would mean recovery from both the guarantors. In the case of Kaupthing Singer and Friedlander Limited (2011), it was held: “The function of the rule is not to prevent a double proof of the same debt against two separate estates (that is what insolvency practitioners call “double dip”). The rule prevents a double proof of what is in substance the same debt being made against the same estate, leading to the payment of a double dividend out of one estate. It is for that reason sometimes called the rule against double dividend.” This essentially means that there is a bar on recovering payment of a double dividend but no bar on the double proof. Hence, the only clog provided by courts for the prevention of unjust enrichment is on the double recovery and not on the double proof. Secondly, such a bar on the initiation of the CIRP is arbitrary and devoid any reasonableness. For example, if two CIRP applications were filed against corporate guarantor-1 and corporate guarantor-2 on the same date and the application against the corporate guarantor-1 was accepted on 1 January 2019 while application against the corporate guarantor-2 was accepted on 2 January 2018. There seems no justification for accepting the first application and rejecting the second one since both the applications were filed at the same time. Moreover, admission of claim against one guarantor cannot constitute extinction of the right against the other guarantor, since they both have joint and several liability. Thirdly, such rule of interpretation goes against the principles of suretyship. According to the Report of the Insolvency Law Committee, 2018, it has been noted that if one of the CIRP is accepted against corporate guarantor-1, then until such CIRP is finalized, the other sureties (corporate guarantor-2’s) liability is put on hold and such antithetical interpretation would not serve the purpose of the agreement of guarantee that the parties entered into. Hence, it would render the contract of guarantee infructuous. Fourthly, the liability of two or more than two guarantors is co-extensive and release of one co-surety does not mean that other surety is free from its liability. In the United Bank of India v. Modern Stores (India) Ltd, it was held that liability of co-sureties is joint and several and it cannot be discharged either by creditor or guarantor. Moreover, the right to contribution provides that co-sureties are liable to pay equal shares and liability of co-surety cannot be deferred in any manner until the creditor exhausts all his remedies against the debtor. Therefore, until the overall debt is exhausted, the liability of co-surety cannot, in any manner, be ousted. Similarly, in ICICI Bank Ltd. & Ors. v. CA Ritu Rastogi & Ors., it was held that since the liability of guarantors is independent in nature as the agreement of guarantee is a separate and independent contract in itself and hence, the objections regarding initiation of two CIRPs cannot be raised against such contract which is agreed expressly. Conclusion Upon the perusal of the aforementioned arguments and reasoning, it is pertinent to note that the bar on the initiation of two CIRPs against two corporate guarantors for the same debt is flawed in many aspects. There shall not be any bar on the double proof of same debt against two guarantors rather the bar shall only be on the payment of double dividend by the corporate guarantors to the creditor as the same would cause unjust enrichment. The liability shall be imposed and distributed on both the guarantors and not just on the guarantors against whom the CIRP application has been accepted earlier and the debt shall be recovered in that proportion. Hence, ensuring greater protection to the rights of the creditor would boost India’s rank in World Bank’s “The Ease of Doing Business" index. In the light of above mentioned flaws, the authors believe that the case at hand which is pending before the Supreme Court requires strict scrutiny.

Article by Najia Humayun, On September 26th, 2014, 43 students from a rural teacher’s college in Ayotzinapa “disappeared”. The group was travelling from Ayotzinapa to Iguala, a nearby town also in the state of Guerrero, Mexico, to protest discriminatory hiring practices for teachers, and raise funds for a trip to Mexico City marking the anniversary of the 1968 Tlatelolco Massacre, in which countless students were killed by government security forces. On their way back to Ayotzinapa from Iguala, they were confronted by municipal police, for allegedly hijacking the buses they were traveling in. Surviving students maintain that the bus drivers were acting voluntarily. 3 students were killed that night. 43 have not been seen since. Official reports filed under Enrique Peña Nieto’s administration claim that the students were turned over by the police to Guerreros Unidos, a criminal group linked with the mayor of Cocula, another nearby town in Guerrero, Mexico, which allegedly confused them with members of a rival group, killed them, and burned their bodies. This report has since been discredited by many human rights organizations. The UN states that there is strong evidence that the 43 students were detained and tortured by Mexican police and army officials, and that these violations were then intentionally covered up by the government. The new administration under AMLO has made promises to explore new lines of investigation to bring justice to the families of the 43. If this administration, as the first left-of-center presidency since the 71 year rule of PRI, also fails to bring justice, “the public’s outcry will be enormous”, according to one Mexican senator, and former president of the Inter-American Commission on Human Rights at the time the GIEI (interdisciplinary group of international experts) was created to investigate the incident. It is exceedingly important, he mentioned, for AMLO to investigate the army, and mitigate the dangerous message that “the army is untouchable”. Amnesty International has emphasized that not all interactions with AMLO’s administration have been positive, and that the investigation has neither been completely transparent nor produced positive results. For the sake of the loved ones of the 43, and the over 40,000 disappeared people in the country, there is hope that the new administration will bring the perpetrators of this crime to justice. The layers of deceit burying the truth are outrageously intricate and deep- but if the will of the Mexican people, the passion of a new left-leaning administration, and the outcry of various human rights groups cannot unearth this truth, nothing will.

Article by Dhiraj Rao a 4th year student of Dr Ram Manohar Lohiya National Law University, Lucknow, The National Company Law Appellate Tribunal (“NCLAT”) reversed the order of NCLT while adjudicating upon the matter concerning insolvency of Sterling Biotech. The NCLAT allowed the creditors to withdraw the insolvency petition as per section 12A of the Insolvency and Bankruptcy Code (“IBC”), 2016 and to settle with the promoters of the Corporate Debtor. Thereby, allowing the promoters of the Corporate Debtor to take the control after making full payment to the lenders. An application under section 7 of IBC was filed by Andhra Bank against Sterling Biotech in June 2018. Apart from defaulting loan of Rs 8,100 crore, the promoters of the debt-ridden Sterling Biotech were already facing charges of corruption and money laundering. The promoters of the Corporate Debtor absconded and government agencies like Enforcement Directorate and CBI were unable to trace them. Thereafter, a one- time settlement (“OTS”) offer was made by Farhad Daruwalla on behalf of the promoters of the Corporate Debtor to the creditors. The offer stated that the entire payment under OTS shall be made by the promoters and not through the corporate debtor and its properties. The offer got a green signal by the committee of creditors (“COC”). It subsequently prompted filing of withdrawal application as per section 12A of IBC. However, the NCLT slammed the application and sent the Corporate Debtor for liquidation. NCLAT Order In its order dated 28.08.2019, The NCLAT reversed the impugned order dated 08.05.2019 of NCLT and allowed the appellant to withdraw the application. The Appellate Tribunal stated that promoters should be permitted to make OTS if they promise to make payment to the creditors in their individual capacity. It was further observed that although section 29A of IBC disqualifies promoters and connected entities from bidding for stressed assets, the law does not apply in the case of withdrawal of application under section 12A. Application of both the sections is mutually exclusive and they operate in different arenas. Lastly, it was stated that once the application for withdrawal has been approved by more than 90% of the COC, it is not open for the Adjudicating Authority to reject it. The Adjudicating Authority shall not interfere with the commercial decisions of the COC. Critical Analysis of the Judgement It seems that the Appellate Tribunal have erred in reversing the order of NCLT to liquidate the Corporate Debtor. The decision has opened a backdoor entry route for defaulting promoters. Section 29A of the IBC disallows defaulting promoters from bidding for stressed assets and submitting resolution plan. It is pertinent to note that the OTS made by the promoters was nothing but a resolution plan. It exposed the creditors to deep haircuts and allowed the absconding promoters to get back the control of the debt ridden company by only paying 35% of the dues. Moreover, nothing was placed on record to show that Mr .Farhad Daruwalla, who introduced the offer was duly authorised by the promoters to represent them before COC. Apart from this, section 12A of IBC provides discretion to the Adjudicating Authority while considering the withdrawal application and therefore, uses the word “may”. If the Adjudicating Authority is convinced that the promoters of the corporate debtor have vitiated any of the grounds or have been able to prevail upon the 90% for reasons contrary to law, the Adjudicating Authority may refuse a withdrawal application. However, NCLAT presented a different interpretation. It stated that once the application has been approved by COC with more than 90% votes, the Adjudicating Authority cannot disallow it. This stance of restricting the discretion of NCLT can be perceived as an attempt to frustrate the objective of the legislation. Moreover, it seems that the Appellate Tribunal has blindly relied on the financial wisdom of the committee of creditors. It has not taken into consideration the previous record of the defaulting promoters. Going by the charges labelled against the promoters, it is tough to absorb that they have clean funds. The commercial wisdom of the COC should be respected, however, that should not restrict the Appellate Tribunal from checking the veracity of the funds. The viewpoint of NCLAT has created an aperture as to who will determine whether the settlement amount is proceeds of crime or not. A Concluding Look The finding of NCLT can open up a pandora’s box for upcoming insolvency matters. It can set a precedent that will enable the errant promoters to have the last laugh by getting back the control of the company once they make full payment to the creditors. It would mean giving back the control of the corporate debtor to those who contributed to its downfall. This issue ought not to end on this note and should be decided by the Apex Court. However, it is tough to perceive an appeal as the creditors have welcomed the order of NCLAT with open arms since they are getting more money through OTS than they would have got in the case of liquidation.

Article by Vishal Rajvansh, Introduction The Motor Vehicles (Amendment) Act, 2019 which came into effect from 1st September 2019 was introduced in Lok Sabha on July 15, 2019, by the Minister for Road Transport and Highways, Mr. Nitin Gadkari. The Act intends to amend the Motor Vehicles Act, 1988 to provide for greater road safety provisions. With around sixty-three clauses of the Motor Vehicles (Amendment) Act, 2019, coming into effect from September 1, the Centre seems to be well equipped with a watertight mechanism to tackle road accident issues. However, the only predicament blocking the way of the Indian Legislative here will be the successful implementation of the Act. The Act aims at stricter punishment for violation of traffic regulations and to bring discipline on roads is going to be the source of huge public outcry. The bone rationale of the Legislative behind introducing this Act is road safety, a major question that has put every stakeholder in a state of a dilemma if at all levying hefty fines will reduce the percentage of accidents happening around the nation. With the fines suddenly witnessing an exponential increase, the citizens (mostly middle-class families) have found themselves embroiled in deep waters especially when the fines tend to surpass their monthly income. Interestingly, many state governments including the BJP-ruled Gujarat, Jharkhand, Karnataka have stalled the implementation of the fines for the next three months and have been insisting on revising the same. Some of the states have even formed committees to study the Act and are looking for ways to tweak it around. The Motor Vehicles Amendment Act has paddled into controversy with multiple states alleging the Centre of burdening the common man with heavy fines. Augmentation of Fines – A subtle shock The government has notified sixty-three provisions of the Motor Vehicles Amendment Act 2019, including the ones dealing with enhanced penalties for various traffic offences. The new rules have enhanced the penalty for drunken driving to imprisonment up to 6 months and/or fine up to Rs 10,000 for first offence and imprisonment up to 2 years and/or fine of Rs 15,000 for the second offence. Besides, the penalty for driving without a license has been increased from up to Rs 500 to Rs 5,000. Similarly, a fine of Rs 1,000 as against Rs 100 has been mandated for not wearing a seatbelt at present. Notably, the over-speeding penalty has been increased from Rs 400 to Rs 2,000. At the same time, if a person permits a minor to drive, the owner of the vehicle will be liable to pay a sum of Rs 25,000 with three years of imprisonment. The under-aged person will also pay a fine of Rs 5,000 or imprisonment up to three months. The act also lays down a provision that if a disqualified person drives a vehicle or applies for driving license, imprisonment up to three months or a fine of Rs 10,000 shall be levied. Under section 196 of the Motor Vehicle Act, 2019 driving without Insurance will be fined Rs 2000. Under section 194 D of the act; riding without Helmets will be fined to Rs 1000 and disqualification for 3 months for licence. Under section 194 E of the Act; not providing a way for emergency vehicles will cost Rs 10,000. Implementation of Amendment – Not a walk in a park The new fines and penalties for breaking traffic laws have caused quite a furore. There’s literally panic among many vehicle/bike owners after implementation of Motor Vehicle Act 2019 which not only has the provision of stringent regulation of traffic rules but also imposing hefty penalties for violations. The Amendment seems to be shedding off the skin of the common people from day one of its implementation. In a noteworthy instance, Delhi police issued 3,900 challans to various violators on the first day of the implementation that is 1st September 2019 itself which made a huge outcry in the State. Notably, in sheer antipathy of the new rule, many states labelling it inordinate and overweening, has not implemented the rule yet. States like Punjab, Madhya Pradesh, West Bengal, and Rajasthan refused to implement the present vehicle act whereas the Gujrat government expressed reservation on high fines that may not be feasible. The reason behind such a huge failure in the successful implementation of the Amendment Act is nothing but its incapacitated ambitions and hap-hazardous birth in the system. The purpose this Act has managed to serve yet is to choke common people to bereavement by rendering their financial status decidedly unstable. The unresolved issues – A Mission yet to be achieved The provision for hefty fines is bound to bring some respite to the victims but certain unaddressed concern makes this stipulation susceptible to criticism. Notably, fines surpass the Per Capita Net National Income during 2018-19 which is estimated to be ₹ 1,25,397 i.e. the monthly per capita income would be ₹ 10,449 which makes the financial status of India’s population crystal clear. The fines being imposed don’t commensurate with monthly income of the people. Although the intention behind the legislation cannot be doubted, the purpose seems to be blurred with people feeling the whip so hard as to have a bearing on their monthly income if subjected to such fines. Such concerns make the all imperative purpose of the enactment diluted in the long run. While it is exceedingly imperative to maintain the traffic discipline, imposing heavy fines will lead more to corruption than safeguarding road safety. Every government office is a den of corruption, but it is on the roads the people pay bribes most often. With the corruption on the road by traffic police being already at alarming levels, the amendment has empowered them with a new tool to fill in their pockets. As the fines have increased, traffic police have increased the bribe rates too. Notably, the corruption issue has started plaguing in the system as eight officers have been caught taking a bribe in Chandigarh, and it is just the inception of the smoothly paved way to corruption. Earlier this month a biker took to Facebook to complain about harassment by a traffic constable resulting in the constable's suspension. Inopportunely, the posts on a website called “ipaidabribe.com” speaks loud about how bribing on the roads has become a way of life. The Amendment Succumbing to the Proportionality Test Proportionality entails scrutiny into the relationship between a restricting measure and its objective. To advance its legislative policies, Parliament confers a discretion on statutory bodies. The exercise of executive discretion is subject to judicial review. The proportionality test is more and more applied when there is a violation of human rights and fundamental rights. Levying fines more than income is a violation of basic rights. Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results. It is the duty of the state to preserve law and order. Proportionality might be subsumed under the head of an irrationality where a decision is so disproportionate that it could be said to be irrational in that no reasonable authority could have come to such a decision. The Amendment which imposes more fines than the Country’s per capita income can surely be called irrational. Interestingly, a study suggests that fines sought to be income based as one-size-fits-all fines fail to meet basic goals of the justice system. A mechanism should be created to treat like offenders alike, punish the deserving, and encourage respect for the law. A system that tailors fines according to income, by contrast, would help to ensure that every person experiences a proportional penalty when they run afoul of the law. Conclusion While it is undoubtedly a much-appreciated step to change road behaviour and improve road safety, it also has the potential to hamper the entire financial stability of a low-income family, not to mention India’s majority of the population living under basic sustenance levels. It does not seem reasonable to levy a fine which is more than the price of the vehicle a person is riding. Unfortunately, the legislation by imposing such hefty fines without giving any alternate remedy is disturbing the balance of convenience meaning this amendment does more injury than providing safety or relief. Astoundingly, the cause of road accidents is recorded as a ‘fault’ of a road user disregarding the condition and management of road facilities. This procedure ensures that 80% or more of the cases get attributed to ‘human error’ and there is no place for understanding crashes as a result of a host of factors including the vehicle, road, and infrastructure design. On the contrary, as a proportion of total accidents and deaths due to ‘drivers’ fault’, intake of alcohol/drugs accounted for only 8.0 per cent and 9.9 per cent, respectively and it would be exceedingly inappropriate to incriminate the drivers as the sole reason for road accidents. In furtherance to concede and divulge the infrastructural faults of Indian roads, it becomes germane to note that National Highways comprise only 15% of the total length of roads in India but account for 33% of the fatalities. A vast majority (68%) of those getting killed on highways in India comprise vulnerable road users. This being a cause for concern should be the guiding factor in future design considerations instead of considering heavy fines to act as absolute deterrent of road mis-happenings. The legislation instead of facilitating the requisite road facilities and eradicating its infrastructural defects has found a way to escape its responsibilities and placed the whole burden on the common people. Nonetheless, it is an investigated recipe that imposing stricter penalties in the form of higher fines or longer prison sentences will not affect road-user behaviour and imposing stricter penalties will reduce the level of enforcement. Notably, higher penalty was levied on driving errors in Queensland, Australia between 1995-2010, but crash risks among drivers in Queensland could not be curtailed following receipt of hefty penalties for traffic infringements. Unfortunately, the practice could not act as a deterrence for traffic rule violations, and failed miserably. In commensuration of the same, a report suggests that the number of road accident deaths per lakh of population at 10.8 in India is much lower compared with 12.08 in the Republic of Korea, 12.25 in USA and the Russian Federation 21.06, where the traffic fines surpass fines stipulated in the Amendment Act 2019. Making the situation crystal clear, the above facts suggest that neither India’s per capita income is proportional to the fines being levied under the Act nor it will serve the purpose it has been formulated for.

INTRODUCTION On 18th of September, 2019 the Ministry of Commerce & Industry had reviewed the extant Foreign Direct Investment (“FDI”) policy and issued Press Note No. 4(2019 Series), thereby initiated the long-awaited reforms in Single Brand Retail Trading (“SBRT”) sector. The Union’s announcement on FDI appears to be one more push to make India a more attractive destination in the midst of economic slowdown, weak investment activity and GDP plummeting to a five year low of 5.8% in the March quarter. Moreover, last month, the Reserve Bank of India (RBI) had pointed out that net FDI flows had moderated to $6.8 billion over the past two months of the current fiscal year from $7.9 billion in April-May, 2018. To pull out the economy from the current slump, Cabinet decided to liberalize and simplify the FDI policy to provide ease of doing business in India leading to larger FDI inflows and thereby contributing to the growth of investment, income and employment. In this article, the author analyses the latest FDI reforms in SBRT sector and argues about the loopholes in ‘local sourcing’ norms. LOCAL SOURCING’ REQUIREMENT As per the proposed local sourcing norm, a single brand retail entity with over 51% FDI has to ensure that all procurements made from India by the SBRT entity shall be counted towards local sourcing of 30%, irrespective of whether the goods procured are sold in India or exported. Furthermore, under the extant policy, an entity is not mandatorily required to follow the above mentioned local sourcing norm annually from the commencement of business operations in India. Rather, the local sourcing requirement of 30% of value of goods can be met by the SBRT entity as an average during the first 5 years, and thereafter annually towards its India operations. As part of the proposed FDI relaxations in SBRT sector, sourcing of goods from India for global operations can be done directly by the single brand retailers undertaking SBRT or group companies (resident or non-resident) or indirectly through a third party under a legally tenable agreement. Therefore, the proposed FDI reforms will open door for Apple’s vendor Foxconn to source materials locally that could be considered as meeting Apple’s local sourcing requirement or if apparel giant H&M’s vendor sources stitching materials or the fabric that will also be counted as part of H&M’s local sourcing requirement. Under the extant policy, only a part of the global sourcing shall be counted towards local sourcing requirement, which is over and above the previous year’s value. In contrast to the extant policy, the proposed FDI reforms will allow entire sourcing from India for global operations, and that will be considered towards local sourcing requirement (no incremental value) in line with government’s emphasis on expanding the scope of sourcing operations for retailers. This comes as a huge boost for some of the world’s largest retailers, who have always sourced locally from India, particularly in sports, apparel, furniture. Some of those retail giants include IKEA (furniture) and H&M (apparel), who are sourcing from India for more than 30 years for its international markets and welcomed the move that global sourcing is now part of the 30% local sourcing norms. ANALYSIS OF ‘LOCAL SOURCING’ NORMS Although the government approved slew of changes yet the much hyped ‘reforms in FDI policy’ seems to have disappointed many industry players. The proposed reforms in FDI policy did not clarify the meaning of ‘state-of-art’ and ‘cutting-edge-technology’, which has always remained a barrier for companies like Apple to seek exemptions from local sourcing norms for an initial period of three years from the commencement of business. It is pertinent to note whether a product would be in the nature of ‘state-of-the-art’ and ‘cutting-edge technology’ and where local sourcing is not possible, remains subject to the discretion of the government. Such was the situation that several companies, including Apple, Xiaomi and LeeCo, had earlier sought exemptions from it on ground of their technology being ‘state-of-art’. However, Apple’s application was rejected in 2016, while, Xiaomi and LeeCo had subsequently withdrew their applications, realising such a waiver was hard to come by due to stringent norms. With Prime Minister Modi setting his sights of ensuring India becomes a $5 trillion economy within the next five years. It is imperative that the ambiguity with respect to interpretation of ‘state-of-art’ and ‘cutting-edge-technology’ are clarified with clear meanings or guidelines, otherwise Indian market will fail to attract multi-national single-brand retail companies to set up business in India. Thus, the hopes of achieving a $5 trillion economy will gradually fade unless the government addresses the concerns of foreign investors and ensures further relaxation from the local sourcing norms. CONCLUSION While the proposed reforms in FDI policy is a welcome step forward in sync with the idea of making India an investment-friendly environment for foreign investors, it still does not adequately address the concerns of single-brand retailers. Unless the government ensures further changes by interpreting the meaning of ‘state-of-art’ and cutting-edge technology, it will be interesting to see whether global single-brand retailers would accelerate their entry plans in India given the arbitrary rejection of Apple’s application for exemption from local sourcing. About the Author: SOUMYAJIT SAHA is a third year student at National University of Study and Research in Law, Ranchi

Article by Najia Humayun, Introduction: Though Article Six of The International Covenant on Civil and Political Rights (ICCPR) indicates a preference towards abolition of capital punishment, it nonetheless provides guidelines for its just implementation. The article requires that the death penalty only be imposed “for the most serious crimes in accordance with the law,” and that it not run contrary to the ICCPR or the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). It further clarifies that anyone sentenced to death has the right to seek pardon or commutation of their sentence; and it prohibits the execution of any person under 18 years of age or pregnant. This piece will discuss whether the Islamic position on capital punishment, determined from the text of the Holy Quran, falls within the reins of this international law. The Holy Quran provides specific, corporal punishments for 4 offenses: adultery (24:03), slandering (24:05), murder (2:179), and theft (5:39). Of these offenses, only murder is explicitly stated in the Holy Quran as being punishable by death. Some self-proclaimed Islamic countries permit capital punishment for crimes which are not explicitly punishable by death according to the Holy Quran. There is scholarship criticizing the extreme interpretations which have led countries like Saudi Arabia and others to implement capital punishment for crimes such as apostasy and adultery. In order to focus on a comparison of the standards of Islam itself to the standards of international law, this article will only focus on the Islamic teaching of capital punishment for murder, which is undisputed within Islam due to its clear basis in the Holy Quran’s text. The Islamic teaching on capital punishment aligns with Article 6 of the ICCPR due to its limited scope to murder, constraint on the consideration of social characteristics of the offender by the government, and promotion of a restorative justice model which provides the victims’ heirs discretion to forgive the offenders. Textual basis: The Holy Quran says, “O ye who believe! equitable retaliation in the matter of the slain is prescribed for you: the free man for the free man, and the slave for the slave, and the female for the female. But if one is granted any remission by one’s brother, then pursuing the matter for the realization of the blood money shall be done with fairness and the murderer shall pay him the blood money in a handsome manner. This is an alleviation from your Lord and a mercy. And whoso transgresses thereafter, for him there shall be a grievous punishment.” (2:179) This teaching aims to provide proportionate punishment without distinction between offenders, while providing for forgiveness by the victims’ heirs. The language “the free man for the free man, and the slave for the slave, and the female for the female” is not stating that, say, a woman should not be executed for killing a man. Rather, it is stating that the social position of an offender should not be considered when determining when to apply the death penalty. The grammatical construction, which may confuse some in translation, refers to and forbids a historic custom in Arabia in which they took sex, social status, and other factors into account when determining punishment. Furthermore, the use of the phrase “one’s brother,” in reference to the offender emphasizes that the victim’s family should attempt to feel fraternity with the offender, rather than seek vengeance. Philosophical Rationale: The Islamic teaching on capital punishment for murder entails both utilitarian and retributive rationales, with the former justifying execution due to its deterrence potential, and the latter justifying execution due to the moral wrongness of violating the sanctity of human life. It also contains an element of restorative justice, a model which insists that justice should repair the injuries of the parties involved in a crime. The family of the victim is granted the right to forgive the offender. While the duty to execute lies with the state, the option to forgive the offender, and subject them to a fine rather than capital punishment lies with the heirs of the victim. By granting this critical merciful role to the victim’s family, this teaching embodies a restorative justice model, instead of the traditional Western model in which the state prosecutes the offender on behalf of the victim. For a detailed analysis on restorative justice and Islamic law, see here. Comparison to International Standards: Article Six of the ICCPR requires that the death penalty only be imposed “for the most serious crimes in accordance with the law”. Congruently, the Holy Quran only explicitly sanctions capital punishment for murder. The article also states that the death penalty is not permitted if it violates any provision of the ICCPR or the Genocide Convention. A brief examination demonstrates that the Islamic teaching conforms to both Article Six of the ICCPR, which is being discussed in this section, and the Genocide Convention. The Convention aims to prevent the death penalty from being used as a tool for genocide, and the relevant verse of the Holy Quran is designed to prevent the consideration of social characteristics when determining whether to execute someone. Article Six further clarifies that anyone sentenced to death has the right to seek pardon or commutation of their sentence. The Islamic teaching for capital punishment gives the right to pardon the offender to the heirs of the victim. This is distinct from the international standard’s requirement of providing offenders themselves the right to seek pardon. Yet, taken in the context of Islamic law, it is likely that the Islamic teaching in this regard would promote pardon to an even greater extent. Verse 2:178, immediately preceding the teaching on capital punishment, states, “It is not righteousness that you turn your faces to the East or the West, but truly righteous is he who believes in Allah and the Last Day and the angels and the Book and the Prophets, and spends his money for love of Him, on the kindred and the orphans and the needy and the wayfarer and those who ask for charity, and for ransoming the captives; and who observes Prayer and pays the Zakat; and those who fulfill their promise when they have made one, and the patient in poverty and afflictions and the steadfast in time of war; it is these who have proved truthful and it is these who are the God-fearing.” This verse lays out a summary of the teachings Muslims are enjoined to follow. First, this reminds the reader to look to what teachings of their religion they are not following before looking to punish another’s sins. Second, it urges Muslims to, as a form of charity, ransom captives, thereby promoting forgiveness. Third, and more broadly speaking, forgiveness is a repeated theme in the Holy Quran. Each chapter begins with the words, “In the name of Allah, the Gracious, the Merciful”, and Muslims are repeatedly enjoined to embody the characteristics of Allah. Furthermore, verses such as 16:127 teach Muslims that forgiveness is better than retaliation, even when dealing with one’s former oppressors. Additionally, there is less asymmetry of power between the offender and the family of the victim than there would be between the offender and the entire government apparatus. Though the Quran only explicitly provides the victim’s family the right to pardon, it is likely and perhaps inevitable that in this process, they would interact with the offender. And in any such interaction, the offender would have more bargaining power than they would as an individual standing against a formal judicial system. Lastly, the article prohibits the execution of any person under 18 years of age, or pregnant. The Islamic teaching does not explicitly forbid execution of these two groups. However, by giving the victims’ heirs the right to forgive the offender, and furthermore urging the former to view the latter as their “brother”, the Holy Quran insists upon forgiveness where the victims feel it is merited. In the broader context of Islamic law, the specific rights afforded to the young, and the leniencies in prayer and fasting afforded to pregnant women, will likely promote sympathy on the part of the victims’ heirs towards the offender. Conclusion The Holy Quran limits the scope of capital punishment to murder. Furthermore, the Quranic verse in question gives the state the duty to punish the offender, while barring the state from considering the offender’s social characteristics. Yet, the heirs of the victim are given the right to supersede the state, and pardon the offender. In the restorative justice model interactions between the victims’ heirs and the offender which would ensue, the victims’ heirs will likely take their right to pardon within the context of Islamic law at large. This will urge them to prefer forgiveness to punishment, and consider factors which may make the offender particularly vulnerable. In light of these facts, the Islamic teaching on capital punishment is wholly compatible with international law’s limitations in that regard.

Introduction Boko Haram, the name itself tells you much about their history and objectives. It is a militant group based in Nigeria which rests on the philosophy of Islam that any sort of contact with the Western civilization, be it education, culture or politics is forbidden or ‘haram’ according to Islam. It all started when Mohammed Yusuf formed Boko Haram in Maiduguri in 2002. He set up a religious complex consisting a mosque and a school. This school supported a lot of poor Muslim families in Nigeria as well as from neighboring countries. However, its intention was not to spread education. Its political goal was to create an Islamic state, and the school became a recruiting platform of jihadis. If we actually study the population composition of Nigeria in context of its geographical boundaries, we find that there are basically two sects of religious entities present in Nigeria viz. the Muslims and the Christians. The Christians live in the Southern part of Nigeria which economically well due to presence oil reserves in this region. In 2006 it was ranked as the largest producer of oil in Africa and 11th largest in the world. Needless to say, it is the hub of all the Multinational Companies and firms which not only provide employment, but are also investing in utilization of such resources promoting development, whereas the Northern region of Nigeria is dominated by the Muslim population and doesn’t enjoys abundance of natural resources in comparison to Southern Nigeria. It has also been a victim of poverty; corruption and no development took place in this region for the betterment of the society. As a result, it became a fertile ground for the spread of radical Islam. In 2009 its founder Mohammed Yusuf got killed in action by the Nigerian security forces. This was a reaction of the Nigerian government to this organization as it started carrying out military operations against the government with the objective of establishing an Islamic Caliphate. The initial attacks of Boko Haram targeted the Christian population of Nigeria, so the people assumed that this group is against the Christians. But after some time, they started killing the Muslim population as well. So, it became clear that whosoever supported the Western culture in any manner, whether socially, politically or educationally is likely to be targeted by them. This led to huge unpopularity of this group among the people of Nigeria and among other radical islamist organizations. Even initially this group didn’t enjoy the sort of publicity in the media and public as the other groups of their domain like the Islamic State and Taliban did. This group became famous after an incident which took place in 2013 at the Chibok town of Nigeria, where about 300 school girls were abducted by the Boko Haram from their dormitories. This provided a lot of coverage to Boko Haram by the International Media due to the crime against humanity which they committed. The day to day conflict happening between the Nigerian Security forces and Boko Haram has caused a lot of chaos and violence in the country. The main victim of all this are the citizens of Nigeria who have been suppressed from both the sides. On 1 April 2015, the United Nations Human Rights High Commissioner Zeid Ra‟ad AlHussein revealed that the appalling atrocities committed by Boko Haram had created a critical human rights situation in northern Nigeria and the Lake Chad region. Since 2009, at least 15,000 individuals have been killed while women and girls have been subjected to horrific abuses. Apart from this, more than a million people have been displaced in Nigeria and at least 168,000 have fled to neighboring countries. On one side there are reports of War Crimes being committed by the security forces and on the other hand we have Boko Haram waging war against the state and committing crimes against humanity. There is a need to discuss about the prosecution of such crimes on an international platform with the help of the previous instances, where such incidents occurred and what cognizance was taken by the court against the happening of such war crimes and crimes against humanities. But prior to the discussion of prosecution of such parallel incidents happened earlier, one needs to discuss the need of such issues to be raised at a global level. 1. Human Right Abusers must be put on hold The incidents of war crimes being committed by the Nigerian Security Forces and Boko Haram committing the act of waging war against the state are amounting to the clear abuse of human rights of common residents of the nation. There’s an instant need to stop the ongoing sectarian violence as the continuance of such nuisance would lead to weakening of the democratic system thus creating a huge hindrance in the progress of the nation. 2. Sheer Terror spread among the common public The current situation of the Republic of Nigeria lies to pathetic as the there lies a spread of sheer terror among the common public as the perpetrators of war crimes are responsible for the commitment of murdering aid workers and peacekeeping forces (NSF) are indulged in the act of barbarity without any repercussions from which the common public must be protected. In the recent case of Prosecutor v. Bosco Ntaganda , the perpetrator was found guilty committing crimes against humanity and war crimes thus being charged under Article 7 and Article 8 of the Rome Statute respectively. The ICC held that Mr. Ntaganda was held guilty under major charges which included “crimes against humanity (murder and attempted murder, rape, sexual slavery, persecution, forcible transfer and deportation) and war crimes (murder and attempted murder, intentionally directing attacks against civilians, rape, sexual slavery, ordering the displacement of the civilian population, conscripting and enlisting children under the age of 15 years into an armed group and using them to participate actively in hostilities, intentionally directing attacks against protected objects, and destroying the adversary’s property).” He was held as direct perpetrator in the present case. In an another case The Prosecutor v. Abdel Raheem Muhammad Hussein, the perpetrator held the post of Current Minister of National Defense and former Minister of the Interior and former Sudanese President’s Special Representative in Darfur. He was issued a warrant by the Pre-trial chamber for the confirmation of charges under “seven crimes against humanities” and “six war crimes”. These landmark judgments by the Trial and Pre- Trial chamber demonstrates that previously there have been occurrence of synonymous incidents like war crimes acts committed by the Nigerian Security Forces, thus the perpetrators in the instant case can be prosecuted on respected platform and likely justice can be achieved on such set precedents. Several terrorist groups have also been kept committing crimes against the humanities to maintain their fear and control over the public since ever through various means, among such groups Boko Haram is also one. Similaarly in the discussed case named The Prosecutor v. Sylvestre Mudacumura, the perpetrator was the Commander of the Forces Démocratiques pour la Libération du Rwanda (FDLR). It is said that “Mr Mudacumura is suspected of nine counts of war crimes, allegedly committed from 20 January 2009 to the end of September 2010, in the context of the conflict in the Kivus, in the Democratic Republic of Congo (DRC). Sylvestre Mudacumura remains at large.” The Pre- Trial chamber held that Sylvestre Mudacumura has allegedly engaged his criminal responsibility as an indirect co-perpetrator under article under article 25(3)(b) of the Rome Statute and ended up issuing an arrest warrant against Mr. Mudacumura. This states that these crimes against humanity being committed by Boko Haram can be brought in conscience to ICC and effort can be delivered to give an attempt to get justice, peace and harmony. Conclusion It is well believed that “Justice is not moral luxury”. Victims who have faced inhumane acts against themselves which comes under the ambit of Crimes against Humanitites and War Crimes must be brought and served with justice. Thus now it has been high time and acts of Crime against Humanity and War Crimes being committed in Nigeria by NSF and Boko Haram must be raised to an international level. There can be several safeguards that can be practiced to tackle such issues that include looking after easy flow of arms to the terrorist groups with-in the territory. Controlling corruption in the administrative authorities and Monitoring and Control of Hate Speech Causing Incitement for waging of war against the state can be a good measure against such situations. Authors 1. Name – Shivang Course - B.A. LLb. (Hons.) 3rd Year student Institution – Dr. Ram Manohar Lohiya National Law University, Lucknow. 2. Name – Rakshitt Bajapai Course – B.A. LLb (Hons.) Institution – Dr. Ram Manohar Lohiya National Law University, Lucknow.

Article and Photo by Martin Ren, Mark Twain once said: “Mauritius was made first and then heaven; and heaven was copied after Mauritius.” Charmed by the beaches, mountains and the smiles of Mauritians, Twain probably didn’t know that a Serpent had slithered into this Garden of Eden. That Serpent, s.250 of the Criminal Code Act of 1838, hisses that: “Any person who is guilty of the crime of sodomy or bestiality shall be liable to penal servitude for a term not exceeding 5 years.” On September 2019, members of the Young Queer Alliance of Mauritius filed a claim before the Supreme Court challenging the constitutionality of s.250. They made two main claims: First, s.250 has breached the members’ Right to Liberty under ss.3 and 3(a) of the Constitution. Read in combination, ss.3 and 3(a) say that “in Mauritius there have existed and shall continue to exist… the right of individual to… liberty.” The Supreme Court has observed to this extent that Mauritius is “well known for its traditional respect for freedom and liberty” and is “looked upon by many nations as an object of admiration and envy.” The Right to Liberty sits close to the hearts of Mauritians. A mountain on the southern coast of Mauritius sits as a silent reminder of this: after Britain abolished slavery in 1834, authorities went to the mountain Le Morne to inform runaway slaves of their newfound freedom. But under the false impression that they were being recaptured, the same slaves committed suicide by leaping off the mountain into what is now known as the Valley of Bones—they would rather die free than live chained. Second, it is claimed that s.250 has breached the members’ Right to Equal Protection under s.3 of the Constitution. Per s.3, there shall be no discrimination “by reason of… sex.” This claim assumes that non-discrimination on the basis of “sex” includes sexual orientation. The Supreme Court has never ruled on the soundness of this construction. On the one hand, the Court observed that the Constitution must be “given a generous and purposive interpretation.” The conferral of the Right to Equal Protection is one of the Constitution’s broad purposes, in that non-discrimination “permeates the whole Constitution.” In addition, the Court observed that the Right to Equal Protection under s.3 is “similar” to the Equal Protection Clause under the 14th Amendment of the American Constitution and to the “equal protection of the laws” under art.14 of the Indian Constitution. Therefore, the Court observed that the “same principle[s] could be deduced from… [section] 3 of the Constitution of Mauritius.” But at the same time, the Court cautioned that “[t]he American and Indian Constitutions were drafted in a different age and have tended, particularly with regard to fundamental freedoms of the individual and to a greater extent than more modern Constitutions, to make broad and wide-ranging formulations” (emphasis added). Under s.81 of the Constitution, a decision of the Mauritian Supreme Court can be appealed to the Judicial Committee of the Privy Council in London, presided by Justices of the Supreme Court of the United Kingdom. Should the Privy Council hear the appeal here, the outcome of its decision is likely to echo across other former British colonies in Africa, where the same Serpent still hisses.

Article by Sarthak Raizada, The recent amendments to the Unlawful Activities (Prevention) Act, 1967 (“UAPA”) that empowers the Central Government to proscribe individuals as terrorists has sparked a debate on the freedom of speech in India. Many civil rights advocate have argued that the Unlawful Activities (Prevention) Amendment Act 2019 (“Amending Act”) impinge upon the freedom of speech and expression and right of reputation guaranteed to Indian citizens under Article 19 and 21 of the Constitution. According to the proponents of free speech, the Amending Act lack any procedural safeguards and violate the principle of due process. Perceptibly, this might appear to be true. However, any inquiry about the constitutionality of the legislation would be confronted with a conflict between citizen’s freedom of speech and right of reputation, on one hand and national security concerns, on the other. While striking a balance between these competing interests without compromising either would be the most desirable approach, it should be emphasized that restrictions placed for preventing terrorist activities and safeguarding national security are qualitatively different from and should not be conflated with other restrictions imposed to deter individuals from defaming other people or to prevent riots and mob disturbances. A brief reflection on the modern terrorism and measures formulated by countries to respond to this global phenomenon is, therefore, extremely critical before rushing to conclusions about the constitutionality of the legislation. Nature of Terrorist Activities The scourge of terrorism has compelled several States across the globe to adopt various measures and reforms for combating terrorist activities. These reactions have been prompted by the paradigmatic shift in the nature of terrorist activities that remain attributable to cross-border terrorism, rise of Islamic fundamentalism in the middle-east, illegal immigration and role of non-State actors in radicalization — posing a serious threat to both internal and external security. Faced with this characteristically different nature of terrorist activities, countries have commonly shared a belief that a strong and effective counter-terrorism policy should be situated in preventive action that should proactively focus on preventing terror attacks rather than punishing them after their commission. This approach is premised on the belief that modern terrorism and terrorist activities have entrenched ideological underpinnings that remain committed to martyrdom. The suicide bombing of the CRPF personnel in Pulwama is the most unfortunate but hard evidence of the ideological tenor behind similar incidents. It shows that even the fear of death is not sufficient to dissuade them from engaging in terrorist activities. In such a scenario, it becomes extremely difficult to expect that deterrence by punishing such crimes would play any role in combating terrorism. Preventive measures are, therefore, imperative which may extend to designation of individuals as terrorists where such individuals are involved in terrorism. Proscription Regimes in other countries Globally, many states have implemented proscription regimes for outlawing individuals who are engaged in terrorist activities. For instance, the Secretary of State is empowered to designate foreign persons (including American citizens) as “specially designated terrorists” if the individual poses a risk to national security of the United States. Similar designation process has been adopted by Australia (Charter of the United Nations (Dealing with Assets) Regulations 2008) and United Kingdom (Terrorist Asset-Freezing etc. Act 2010) after the United Nations Security Council passed the Security Council Resolution 1373 — United Nations Suppression of Terrorism Regulations making it obligatory for member States to prevent and suppress the financing of terrorism. Albeit diverse, these designation regimes prove to be a very useful tool for transnational cooperation in the fight against terrorism. The Amending Act that authorizes the Central Government to designate an individual as a terrorist is a step in the direction where India also becomes a responsible stakeholder in the global sphere towards suppression of terrorism. Purpose of Proscribing Individuals The designation of an individual as a terrorist serves multiple purposes. It is common knowledge that advanced means of warfare employed by modern terrorist groups has been made possible by their deep financial foundations. Most of these funds are laundered either by private businessmen or sham charitable and non-governmental organizations. Thus, the freezing and confiscation of assets and financial belonging to individuals involved or suspected of being involved in terrorist activities is an effective legal tool to counter terrorism by crippling their financial ecosystem. In the US, UK and Australia, designation of an individual as a terrorist, attracts sanctions in the form of asset-freeze and prohibition of financial assistance or support to such an individual. A look at other regimes such as Canada would also show that designation of a person as a terrorist is usually accompanied by freezing actions. In fact, the obligation to freeze is binding obligation on member States under international law that emanates from the Security Council Resolution 1373. Although the UAPA as it stood before the amendment also empowered the Central Government under Section 51A to freeze funds and other financial assets or economic resources held by individuals or entities listed in the Schedule to the Order, there was no provision under which the Central Government could have designated individuals as terrorists under the Act. The power to freeze was, therefore, a toothless tiger in its application to individuals as without the power to designate, the Central Government was not empowered to freeze the financial assets or funds held by such individuals. This lacuna under the UAPA has now been closed with the enactment of Section 5 of Amending Act. Another purpose for proscribing individuals as terrorists is the pervading and deep influence of the leaders of terrorist outfits on vulnerable groups. An unfortunate illustration of the ability of such individuals to indoctrinate other people can be found in a book “The ISIS Caliphate: From Syria to the Doorsteps of India” authored by Stanly Johny. In his book he describes, how Abu Bakr al-Baghdadi, forming top brass of ISIS leadership influenced camp inmates during his stay at the US-run detention center at Camp Bucca. Discussing Baghdadi, his co-inmate remarked that “New recruits were prepared so that when they were freed, they were ticking time bombs”. In fact many people who came in contact with Baghdadi at Camp Bucca later went ahead to occupy leadership positions in ISIS. Therefore, the mobilizing ability of such individuals cannot be undermined and by empowering the Central Government to designate individuals as terrorists alongside organizations, India has expressed its intention to socially and internationally condemn and disavow individuals who promote their terrorist activities by abusing the frailties of underprivileged groups. Safeguards under UAPA: Substantive and Procedural Civil rights advocates remain disturbed that the UAPA and the Amending Act confers an unbridled power on the Central Government to proscribe an individual as a terrorist. These criticisms also lay too much emphasis on the absence of any due process under the UAPA regime, as there is no requirement to give a prior hearing or adequate notice before proscription. However, the argument is unfounded for two reasons. First, the procedure to list a person as a terrorist under UAPA is circumscribed by two substantive limitations. Under Section 35(2) of the UAPA as amended, the Central Government can add a person to the Schedule only if it believes that such an individual is involved in terrorism. The grammatical variation of “terrorism” is defined under Section 15 as any act intended to threaten or likely to threaten the unity, integrity, security 5, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country. The substantive standard “only if it believes” under Section 35(2) serves as a limiting principle on the power of the Central Government to designate an individual as a terrorist. If the test of reasonableness, as laid down in Maneka Gandhi v. Union of India is applied to Section 35(2), the expression “only if it believes” should be interpreted as “reasonable grounds to believe” — a standard lower than both the criminal standard of “beyond reasonable doubt” and the standard applicable in civil matters of proof on the “balance of probabilities”. However, the standard would always require something more than a mere suspicion i.e. the method for listing of an individual as a terrorist under the Schedule should be an objective determination of facts based upon credible intelligence inputs and evidence. This interpretation is also consistent with the international standards under the Model Legislative Provisions Against Terrorism where the evidentiary threshold for listing is recommended as “reasonable grounds to believe”. The other limitations on the power to designate are the words and expressions “intention to threaten”, “likely to threaten”, “with the intent to strike terror” and “likely to strike terror” used in Section 15. These expressions imply that the individual sought to be designated, as a terrorist should either have “actual knowledge” or “reasonable suspicion” based upon the information available to him that his acts would threaten the unity, integrity, security, economic security, or sovereignty of India. Moreover, the words and expressions used in Section 15 are well-known terms employed in anti-terrorism laws enacted elsewhere in the world and cannot be termed as arbitrary for want of precision. In sum, the powers of the Central Government under Section 35 are severely curtailed to eliminate the risk of abuse by the political executive. With regard to procedural due process, it is quite arguable that UAPA is not constitutionally intra vires as it provides meaningful checks and balances on the exercise of power under Section 35. Under Sections 36 and 37 of UAPA, the listing of an individual as a terrorist can be reviewed through a dual process of administrative review— by the Central Government and the Review Committee. On the aspect of pre-designation notice or a fair hearing, it seems quite impractical that such a requirement should be made mandatory before prescribing an individual. A pre-designation notice or hearing might frustrate the very purpose of Section 35. According to settled case-law, “it is established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion” (See Union of India v. Tulsiram Patel (1985) 3 SCC 398). In other words, importing the requirement of a fair notice or audi alteram partem will allow individuals suspected of terrorist activities to tighten their affairs that would scuttle an effective investigation into their terrorist activities and give an opportunity to wire funds and other financial resources out of the country before the Central Government invokes Section 51A to freeze their assets. Nevertheless, the scope of judicial review in matters of national security remains extremely limited. The Court should tread with caution when it adjudicates the validity of the Amending Act because in matters of conflict between national security and due process, wider deference should be given to the Executive branch. Constructive notice in the form of publication of the name of an individual designated, as terrorists, in the Official Gazette should be treated as sufficient compliance with due process in view of the post-designation remedies and impracticality attached to pre-designation notice and fair hearing. Conclusion The Unlawful Activities (Prevention) Amendment Act 2019 is aimed at preventing the spread of terrorism by condemning those who preach violence. In addition to terrorist organizations, it is telling that individual terrorists have become institutions of power through consolidation of their brutal terror network. They play an instrumental role in radicalization of the young and perpetration of mass scale violence. An effective law like the Unlawful Activities (Prevention) Amendment Act 2019 is therefore a necessary tool for inhibiting such terrorist activities. It paves way for not only penetrating the financial resources of such persons but gives out a strong symbolic message expressing social disapproval of terrorist leaders. By providing sufficient safeguards that are inbuilt in the UAPA for ensuring adherence to the due process, it provides for an ideal model to identify individuals who indulge in acts of terrorism. -Sarthak Raizada Advocate Supreme Court of India B.A. LL.B. (Hons.) Dr. RML National Law University, Lucknow

Article by PRIYADARSHEE MUKHOPADHYAY, INCEPTION On June 17, 2019 24 year old Tabrez Ansari was found allegedly stealing a motor bike, he was then caught by a lynch mob and reportedly tied to a pole and beaten for 12 hours which eventually resulted in his death on June 22nd. However, this incident was neither rare nor unusual for the eastern state of Jharkhand in India as it was the 14th lynching in the last 4 years and for India the count was 266th. Mob lynching is a blatant violation of the basic human rights and goes against the mandate of the universal conventions which aims to protect them. Additionally, the state has a positive obligation to realize the Constitutional promise to safeguard the citizens. Taking cognizance of a report filed with OHCHR (Office of the United Nations High Commissioner for Human Rights) on the mob lynching of Tabrez Ansari, United Nations has asked for the details of the case in order to initiate an investigation. This issue was also heard at the United Nations (UN)’s Security Council meet held at the UN headquarters in New York on July 1, 2019 during the 17th Meeting of the 41st Regular Session that was held before UN’s Human Rights Council. INTERNATIONAL CONVENTIONS AND INDIA’S OBLIGATIONS India is signatory to international treaties and convention, and incidents of violence such as lynching are a direct contravention of Article 7 (equality before Law) of Universal Declaration of Human Rights (UDHR) and Article 20 (2) of to International Covenant on Civil and Political Rights (ICCPR) (advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law). The existence of lynching challenges the fundamental concepts of justice system like presumption of innocence and fair trial. The magnitude of this issue is realized when we venture into the recent history of such events in India. The National Human Rights Commission (NHRC) took suo motu cognizance of media reports of 28 years old Rajendra who was pulled out of a police van and beaten to death by a mob in the presence of Constables in Shamli, Uttar Pradesh on 26th November, 2018. This was bound to raise grave doubts on the functioning of the government and the Law Enforcing Departments. Rather than preventing such abominable crimes the States passive inaction and ignorance led to the legitimization and normalcy of Lynch law in India which now calls for international attention. DISSECTING THE RECENT AGITATION: A FRANKENSTEIN IN MAKING? The lynching of dairy farmer, Pehlu Khan in 2017 by a mob of 200 vigilantes created a massive anti-mob lynching movement. It was widely covered by the press which culminated in an emblematic case which was expected to be the torchbearer for curbing the lynching havoc in India. On 14th August, 2019, after 2 years of the incident, the Court of Additional District Judge(Sessions Court) in Alwar, Rajasthan acquitted all 6 accused men. The Court observed gross negligence in the ground level investigation as the cause of the seemingly open and shut case’s collapse. This judgement comes as a catastrophic development in the anti-mob lynching movement due a series of factors. The accused were given “benefit of doubt” in the absence of adequate evidence. Firstly, this whole incident was captured visually in the form of a video which was available for investigation. Secondly, the victim named his assailants in a dying declaration. Such facts cast grave doubts on the adequacy of the evidence and subsequently on the competence of the law enforcement and investigation departments. Tehseen S. Poonawalla vs Union of India, is a landmark case which was headed by the former Chief Justice of India Dipak Misra in which preventive, remedial and punitive measures were laid down by the Supreme Court (SC) while dealing with mob lynching in India. While the landmark case speculated about compensatory scheme and free legal aid for the victims, in reality Pehlu Khan’s family is barely surviving due to the financial drainage for their want of justice. The concluding recommendation of the case was creation of a separate offence for lynching, however, as of now NCRB (National Crime Records Bureau) neither recognizes ‘Mob Lynching’ as a separate branch of crime nor maintains separate statistics on it. CONCLUSION: A WAKE UP CALL FOR THE INDIAN JUDICIARY. While the State turned a deaf ear to the SC’s recommendations, in 2017, a new law, MASUKA(Manav Suraksha Kanoon) (Protection from Lynching Act) was proposed to tackle mob lynching. But even after two years since MASUKA came into existence, the draft is still struggling to become a law while Indian lynching epidemic is on a cancerous growth. The MASUKA suffers from the same fate as that of American anti-lynching Dyer Bill which was made a law after 100 years of its existence and 200 failed attempts. Violence like mob lynching, if not nipped in the bud, possesses cataclysmic potential to push the nation which was founded upon Mahatma Gandhi’s non-violence principle into a delinquent state of anarchy. Violence like this which are seemingly immune to legal measures cause complete collapse of the public’s faith on the Judiciary and the current steps taken by the Indian Government are consistently proving ineffective. It is in times like this that rule of law gets challenged which not only casts doubt upon the very foundation of our civilisation but also paralyse the law which maintains our humane society. AUTHOR’S BIO: Priyadarshee Mukhopadhyay is a second year law student at National Law University, Odisha. He is an editorial board member of the NLUO Student Law Journal and NLUO Human Rights Law Journal. He was part of the Decoders Team under Troll Patrol India Project conducted by Amnesty International India in association with Twitter. He has previously written for blogs like Wolters Kluwer Competition Law Blog and London School of Economics and Political Science(LSE) Gender Studies Blog ‘Engenderings’ His areas of interests are Gender Studies, Human Rights, Sociology, Philosophy, Psychology and Indian and European Competition Law.

Article by Aaron J. Cheung, I. Introduction to the Cyber Issue The Central Intelligence Agency (CIA) Worldwide Threat Assessment recognized that the increasing cyber capabilities of other state actors could be used to surveil, attack, steal from, and influence the U.S. These cyberattacks have the potential to threaten government institutions and target major corporations, harming large groups of people. Al-Qaeda and ISIS have used social media to facilitate terrorism, and Russian intelligence officers hacked the Democratic National Committee (DNC) to interfere with U.S. elections in violation of a federal computer-intrusion statute. In 2000, a fifteen-year-old Canadian citizen attacked and disabled several U.S. based websites, including Amazon, CNN, Dell, eBay, and Yahoo!, causing an estimated $1.7 billion in damages, and in September 2019, Equifax settled with the FTC for $425 million following a data breach that disclosed personal information of 147 million people. International law offers little settled guidance on how to address these incidents. Legal frameworks dealing with cyber issues tend not to address cybersecurity directly. Instead, a combination of rules and norms governing other aspects of international relations are sometimes applied. As a result, international law fails to provide an overarching and consistent framework for handling cybersecurity issues. Furthermore, the asymmetric nature of cyber warfare, i.e. the unpredictability and undetectability of cyberattacks, combined with the difficulty of identifying attackers, complicates retaliation, enforcement, and prosecution. When governments begin to create international cyber law, as they may soon do, they should seek to solve two problems: the lack of legal guidance on how state actors may retaliate, seek relief, or recover damages; and a similar challenge for non-sovereign entities. For this Article, I will assume that retaliation, relief, and recovery are generally normatively and positively desirable. The following two sections of this Article will provide a brief overview of the most critical ways that international (and domestic) laws fail to address these problems. The Article will then describe how a framework to create multilateral institutions may help resolve the unpredictability and undetectability of cyberattacks, as well as complications inherent in enforcing cybersecurity laws. II. Establishing an International Cyber Law Framework The Proper Retaliation, Relief, or Damages for State Actors Created through a Piecemeal Legal Framework: The same laws governing conventional warfare generally apply when cyberattacks against states or institutions amount to war. Once a war breaks out, states may theoretically retaliate with standard forms of traditional warfare, including conventional (or nuclear) uses of military strategies and weapons, in combination with appropriate cyberattacks. However, many disagree about when states should exercise the law of war. Since cyberwarfare is relatively cheaper than conventional warfare and may cause temporary rather than permanent harm, no explicit rules have emerged as to when a state may retaliate using conventional weapons. Yale Law Professor Oona Hathaway identified three prominent theories that illustrate different interpretations about when war is justified. Under an instrument-based approach, only cyberattacks that use military weapons may escalate to war. With a targets-based approach, a cyberattack must imminently and sufficiently harm a critical target. An effects-based approach measures the “gravity of effects” based on the harms that may result. If a cyberattack does not amount to war, then a hodgepodge of other rules, such as those governing countermeasures, treaties between countries or among multilateral organizations, and domestic criminal or civil laws, can regulate cyberspace. The applicable rule depends on the circumstances of the cyberattack, and in many cases, no rules apply. For example, an attack aimed at disabling some system may warrant retaliation under international countermeasure norms to prevent the attacker from repeating the same offense or to take down a similar system. On the other hand, according to Oona Hathaway, cyberattacks on communications systems might fall under international telecommunication agreements, and cyberattacks on airplanes may fall under international aviation laws. Sometimes, domestic laws criminalize cyberattacks conducted by foreign actors. For example, Mueller found evidence that Russian agents violated the federal computer-intrusion statute. Even though they violated U.S. law, the agents will unlikely face prosecution anytime soon by avoiding U.S. jurisdiction. Under the current framework, cyberspace does not have its own set of relevant laws but instead is loosely governed when cyberattacks escalate to warfare, violate the law in a related field, or violate domestic statutes. Businesses and People (non-state actors): Laws regulating cybersecurity for non-state actors sometimes leads to strange results. Domestic laws do provide for civil actions in response to cyberattacks. However, they often do not grant adequate relief. In the 2017 Equifax breach, hackers unlawfully accessed personal data due to a vulnerability that Equifax failed to patch. Although Equifax may be partly responsible for failing to take adequate measures to protect that information, it was an affirmative act of the hacker that caused the harm. Equifax had to pay millions of dollars and provide even more in services as a punishment for the hacker’s crime. Equifax found itself in the unenviable position of suffering financial losses they were unable to recover as a result of the harm caused by the hacker’s actions. Even if they could find the hackers, they would unlikely be able to recover much through civil action. Unlike robberies, in which the law will work to find the perpetrators and undo the harm (or, insurance may cover it), victims of cyberattacks are unlikely to obtain compensation equal to the damages suffered. While states have the resources to identify attackers, criminally prosecute perpetrators, and retaliate, non-state actors generally cannot respond in the same way. Victims gain little from pursuing civil actions whose potential rewards are outweighed by the costs, as is often the case. If a foreign actor commits the cybercrime, non-state actors may have even more trouble identifying the offender and holding them responsible. How can such issues be addressed through international law when the offender comes from a foreign State? States can recognize an obligation to protect their citizens from significant cyberattacks. In many cases, non-state actors belong partly or wholly to a state and receive entitlement to adequate protection from outsiders. Under several traditional theories about state formation, such as social contract formulations, the state may be obligated to protect its people from the cyber equivalent of foreign invasion as a form of a common good. By using the force of the state to find perpetrators of cybercrimes targeting its citizens, states can fulfill a utilitarian purpose in deterring cybercrimes and finds justice by prosecuting criminals. Institutions: As a final matter, institutions should be established multilaterally to share information and identify perpetrators of cyberattacks. These institutions should determine when various actors can be charged with violating a law or norm based on agreed-upon rules. For example, they may determine what sort of financial consequences, through fines or sanctions, a state may receive for launching a cyberattack. If they do not wish to take certain sovereign powers away from states, institutions may alternatively create new rules that provide standards for just retaliation. The most critical tasks are to address the unpredictability and undetectability of cyberattacks, and to increase the capability of state and non-state actors to identify offenders. The most persistent problem with a cyberattack, and the reason why it poses such a significant threat, is the asymmetry of power in which a hidden cybercriminal may, at their discretion, attack systems at any time, with little warning, and often in an unknown way. Thus, institutions should do all they can to identify and prosecute wrongdoer, because doing so will increase the overall costs for someone to commit such a crime. A possible way to achieve this would be to coordinate efforts and information from several states. This would facilitate a sense of shared responsibility to investigate and prosecute cyberattacks, further increasing the ability to find potential wrongdoers. This type of agreement would decrease what makes cyberattacks so asymmetrically advantageous. III. Conclusion Domestic and international cyber laws fail to adequately provide a framework for state and non-state actors to identify attackers and receive relief. States targeted by cyberattacks need to navigate a complex web of loose rules to determine what they may or may not do. Non-state actors encounter even more difficulty recovering for the harms they suffer, and this problem will likely become exacerbated as international cybercrimes increase in frequency. These problems should be addressed through the creation of international rules and norms.