Introduction

Criminology is the study of crime as a social science. It includes not only the general study of crime but also the effects of it on the society. It looks at why certain areas have crime rates higher than others, as well as how crime affects victims. Criminology is a field of study that deals with offenders and crimes. So, criminology is focused on the study of crime and what causes it, while criminal justice is concerned with those who investigate crimes and capture suspects. Criminal investigation is an essential part of criminology. It is a field of applied science concerned with the examination of evidence in order to guide criminal investigation. A comprehensive criminal investigation may include interviews, interrogations, and a variety of other types of inquiries. Many current scientific methods, generally known as forensic science, are extensively used in modern criminal investigations. Many criminal investigative strategies are used to develop ties between the victim and any prospective perpetrators over the course of a criminal inquiry.

While carrying out the time-consuming and careful process of criminal investigation, there are several crucial legal and human issues to keep in mind, particularly with respect to health and safety.

Legal and Human Consideration during Investigation

To carry out the investigation effectively, it is necessary to maintain at least fundamental ethical and legal behavior. The law must be respected and obeyed at all times by law enforcement officers and investigators. They must not conduct any acts of corruption, and it is their responsibility to preserve and safeguard human dignity, as well as to maintain and support all people's human rights. Furthermore, they must immediately report infractions of laws, regulations, and sets of principles that safeguard and promote human rights, and they must adhere to the principles of legality, non-discrimination, and necessity.

While conducting a criminal investigation, there are basic human concerns that must be adhered to without fail in order to achieve a successful and fair investigation. Investigators must remember that everyone has a right to safety and a fair trial, and that everyone should be presumed innocent unless proven guilty in a fair trial. Investigators must guarantee that there is no arbitrary interference with a person's privacy, home, or family, that there are no illegal attacks on a person's honor or character, and that no physical or mental pressure is applied to suspects, witnesses, or victims in order to obtain information. Investigators must adhere to the standards, which stipulate that torture and other cruel or humiliating treatments are strictly banned, and that victims and witnesses must be handled with compassion and respect. It's important to remember that sensitive information should always be handled with caution and discretion. Investigatory operations that are arbitrary or unnecessarily invasive should not be tolerated, and investigations should be competent, comprehensive, fast, and impartial. They will be used to identify victims, retrieve evidence, find witnesses, determine the reason, method, location, and time of the crime, and identify and capture criminals. Above all, crime scenes must be meticulously processed and evidence must be meticulously gathered and kept.

Health and Safety Considerations during the Investigation

It is vital to stress that all key treaties, including the UDHR, the Banjul Charter, and others, guarantee the right to be treated in a fair and unbiased manner and to be free of cruelty or punishment. There are a few basic safety considerations to keep in mind throughout an investigation. This is because everyone has the right to life, to personal security, and to be free of torture, inhumane, or humiliating treatment or punishment. This is the case. As a consequence, throughout an investigation, peaceful tactics should be employed first, and force should be used only when absolutely necessary and for approved law enforcement aims. For the unlawful use of force, there will be no exceptions or excuses. It should also be validated that the use of force is appropriate for the approved goals.

The universal ban against torture and other cruel or humiliating treatment or punishment must be observed at all times throughout criminal investigations, even in the most serious of situations. This implies that those who are arrested or otherwise in the hands of law enforcement or prosecutors, whether as suspects or witnesses, have the right to be treated with compassion at all times and without fear of any kind of coercion or intimidation. Torture and other forms of ill-treatment are never justified and always prohibited, even in the course of criminal investigations. These are the kinds of crimes that need to be prevented, investigated, and punished. Attorneys, and other legal professionals must be especially vigilant in the case of detained women and children for signs of ill treatment.

Conclusion

The following are some of the most fundamental human rights that must be safeguarded during investigations into criminal activities. These include a number of rights essential to a suspect's physical and mental safety, as well as the right to an effective defence at preliminary hearings and subsequent trial. Each and every legal professional has a critical role in ensuring the proper implementation of these rights. Investigators, including detectives as well as domestic courts, have a professional obligation to preserve these rights. They should be on the lookout for any indications that fundamental rights have been violated, such as the right to be free of torture, or the right not to be compelled to testify against oneself, etc. When these rights are evaluated with the basic rights to equality before the law, it becomes very obvious that international human rights legislation offers a strong basis for the creation of a judicial system based on the principles of individual rights and the law.

This blog is authored by Arnav Laroia, student of National Law University, Jodhpur

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During the study, legal and human factors are taken into account, as well as social references to health and safety. Crime analysis is a problem-solving task with several dimensions. When an officer arrives at a crime scene, he or she is frequently forced to make split-second decisions, sometimes affecting life and death, based on little information in a dynamic context of ongoing events. Following the conclusion of a criminal event, the investigator is expected to preserve the crime scene, gather evidence, and design an investigative plan that could lead to the formation of reasonable grounds to identify and arrest the murderer or perpetrators. To handle these problems, police investigators use investigative methods to establish investigative strategies and prioritise replies through training and experience keeping in mind the safety and health of the human being.Criminal probe is a set of thinking skills as well as a set of task skills. All the small details have to be mentioned and taken into consideration while investigating.The ability of an investigator to solve a cold case and a prosecutor to bring the perpetrator to justice is contingent on your ability to locate relevant images and reports decades after the original offence.

Legal Consideration – Forensic science is the intersection of science and law

The Indian legislature provides a single criminal law for all of its residents, governed by the Indian Penal Code, 1860, which governs the substantive aspects of criminal law, and the Criminal Procedure Code, 1973, which governs the procedural parts of criminal justice.

We have a precise mechanism for punishing an offender and defining the country’s misdeeds, but no measures for determining who is a true offender. The Indian legal system is founded on the principle that a hundred criminal people should not be acquitted, but one innocent person should not be. Applying this theory to numerous victims can result in unfairness, as offenders will not come to the police on their own, and the Indian police or legal system will have no other option except to rely on direct evidence against the culprit.

As a result, when a circumstance happens with no direct proof, the outcome can be predicted. In general, forensic law refers to the use of forensic scientists to examine physical traces of a human person that can be used to identify a criminal during an inquiry. To investigate the evidence and compile a forensic report, a number of laboratories and bureaus were established. Chemical Examiner’s Laboratory in Madras, established in 1849, was established to isolate, detect, and assess various venoms in the human system. In the nineteenth century, the Criminal Investigation Department (CID) and the Anthropometric Bureau were founded to keep anthropometric records of criminals. In 1897, the world’s first fingerprint bureau was founded in Calcutta, India. A diagnostic department, a fingerprint section, a ballistic laboratory, and a state forensic science laboratory, among other things, were also established. Despite the fact that these have been developed at such a young age, we still lack real advancement in our science, and as a result, many criminals are acquitted due to limits in the application of forensic science in courtrooms.

As technology advances, so will the analysis and interpretation of physical evidence recovered from crime scenes. Properly documented and preserved evidence will become even more important. The fact that investigators take an objective, thorough, and careful approach influences the ultimate legal importance of this scientific data. The purpose of this procedure is to identify and save tangible evidence that will provide accurate information to aid in the investigation.

Hazards and crime scene

The dangers and safety difficulties associated with reacting to a crime scene are an area that merits further emphasis through basic skills training workshops and publications. Personal and occupational safety are always top priorities when it comes to preventing exposure-related injuries and diseases. When attending to a crime scene, the investigator or specialist may encounter one of three categories of risks or unsafe circumstances. Bio-risks, chemical hazards, and physical hazards are all possibilities. A hazard is a condition in which there is a lack of safety or a high level of risk. In any occupation or profession, the first priority to observe is safety and security. An investigation and processing of a death scene in a huge agricultural field that had recently been treated with agricultural pesticides will cause injury. Amongst the most application areas of forensics is really in post-mortem examinations, which include examining a deceased person to identify the cause of death. Experts must be involved in determining the cause of death, and throughout this process, the forensic scientist must be extremely cautious and meticulous, as well as maintain his personal perspective in mind when executing the autopsy operation, which requires a great deal of effort.

When the scene is in its original, as found condition, demonstrative evidence such as photographs, models, charts, and visual aids are typically given to help a witness explain what he or she saw. Physical evidence collected at the scene and taken into the courtroom where the item may be seen by the jury is known as substantive evidence. When tangible evidence cannot be brought into the courtroom for one reason or another, a photograph can be used as substantial proof.Officers, forensic scientists, evidence technicians, and medical workers are meant to be unbiased witnesses who have no stake in the outcome other than reporting what they have seen and heard from reputable sources with first-hand information.

Investigation And Criminal Prosecutions Inside the field of health and safety

The collecting and analysis of physical evidences existing in many forms (chemical, biological, and physical), as well as their subsequent analysis in the laboratory, is an important aspect of forensic science process. Investigation of clandestine drug laboratories, personal contact with hazardous biological agents, and exposure to latent fingerprint generating chemicals and materials, among other things, are expected and may pose occupational health concerns to those involved. A prosecutor will make every effort to offer the finest evidence possible. In some circumstances, eye witness testimony will be required. In some circumstances, this may include testimony accompanied by photographs and other visual aids. Regardless of their technical excellence, photos that cannot be admitted because the photographer did not do his job properly are worthless.

Investigators who expertise in reassembling crime and accident scenes go to considerable extents to interview witnesses, review available reports, gather old photographs, confirm weather conditions, determine the height of the sun and the phase of the moon, and so on, all while keeping the victim’s safety and health in mind.

Mechanism of death has to be known and for that investigator have to keep eyes on small details .The cause of death is the event or agency that ultimately caused the deceased to depart from this world. A gunshot wound to the chest might be the cause. The mechanism is how the bullet brought about the victim’s demise. It could be through loss of blood, damage to internal organs, infection, etc. The manner of death can be classified as natural, accidental, murder, suicide or undetermined. All the necessary details of the investigation needs to be recorded and performed with utmost care and safety. Investigators should treat the murder investigation as if it were their last chance to save and recover these tangible clues.In their objective appraisal of the situation, they should carefully analyse additional case facts or statements from witnesses or suspects.During such an investigation, the route of the investigation may shift several times, and physical clues that were previously deemed to be irrelevant may turn out to be crucial to a successful resolution of the case.

Legal provision backing criminal investigation

Despite the fact that forensic science has made a significant contribution to the criminal justice system, the law’s limitations cannot be overshadowed. There has been a long-running discussion about the accused’s health and safety. Article 20(3) of our constitution stipulates that a person accused of a crime cannot be forced to testify against himself. This essay was written to safeguard the accused from mental harassment while the police investigation was underway. However, it has been discovered that police officers are abusing and viciously beating the accused in order for them to testify as their own witness. Deaths in custody and police violence have increased, and the situation is not being investigated properly. No one is forced to answer any inquiry or produce any document that can be used against them in a court of law under this right. It is essential that human rights of the accused are not violated during the whole process of interrogation.

There has been much discussion about whether or not requesting DNA and fingerprint analysis is a violation of the accused’s legal rights. In the case of State of Bombay v. Kathi Kalu Oghad and Anr., the Supreme Court declared that ordering anybody to provide evidence at the scene such as fingerprints, blood, or hair semen does not violate the requirement of art. 20. (3).

Another point of contention was the legitimacy of narco-analysis. In the sphere of criminal investigation, narco-analysis is a novel development. However the question is whether narco-analysis evidence is consistent with the law of justice. The investigation team uses this strategy to try to get statements from a semi-conscious person that can be utilised as evidence. This procedure raises various legal and ethical concerns. Some argue that it violates Article 20 of the Indian Constitution, which prohibits self-incrimination.

The constitutional viability of the narco analysis was confirmed by the Supreme Court in one of its decisions. In addition, several changes were made to the Indian Evidence Act and the Criminal Procedure Code in 2005. Lately, in 2006 Selvi and Ors. v. State of Karnataka and Anr the court decided that because the person delivering statements in a brain mapping or narco-analysis test is in a semi-conscious state, they cannot be regarded conclusive and so cannot be included in the mandatory inquiry process. Furthermore, Section 164A of the Code of Criminal Procedure allows the medical examiner to examine the rape victim within twenty-four hours also Section 53 of Criminal Procedure Code,1976 -According to the law, a person accused of a crime can be ordered to undergo a medical examination if the officials believe the examination will help them prove their case.

For many courts, forensic evidence has  potential to recognise the culprits and judges have offered and relied on the evidence and gave opinions as well. Courts, on the other hand, are not bound by the reports and may rely on other evidence. The court’s aversion to forensic evidence – Because even the investigating officer is inexperienced and uninformed, a technological topic like forensic evidence is still underutilised. To date, investigations have been conducted using antiquated, non-scientific methods. Because the investigating officer is the first respondent to the crime, a lack of scientific knowledge poses a severe threat to the justice system’s fairness.

Justice is served through forensic reports

To no one, justice comes with a single click or a blink. It necessitates a remarkable number of actions. Many individuals are misled by Hollywood movies or various web series that depict situations being handled in less an hour, including commercials. Reality isn’t the same as fiction. Serving justice to an individual takes a lot of time, patience, energy, and numerous steps.

One of the major murder case solved by using forensic is NainaSahni Murder case also well known as Tandoor case . Sushil  ( accused ) expressed his displeasure with his wife NainaSahni’s friendship with Matloob Karim. Matloob and Naina were classmates and colleagues in the Congress. Sushil had suspicions that Naina was having an illicit affair with Matloob. Sushil returned home on the evening of July 2, 1995, to find Naina conversing on the phone and drinking alcohol. When Naina saw Sushil, she hung up. Sushil dialled the number again and was greeted by Matloob on the other end. He shot dead Naina because he was furious. He transported the body to a Bagiya restaurant and attempted to discard of it with the help of the restaurant owner, Keshav Kumar. The body was then burned in a tandoor (clay oven). Keshav Kumar was apprehended by the police, but Sharma escaped. On July 10, 1995, he handed himself in.The victim’s identification was also established using DNA evidence in this case. According to the lab report, “blood samples preserved by the doctor during the post mortem and blood stains on two leads collected from the head and neck of deceased Naina’s body are of the ‘B’ blood group.” The DNA testing found, “The findings establish beyond any reasonable doubt that the charred body is that of NainaSahni, who is the biological offspring of Mr. Harbhajan Singh and Jaswant Kaur.” Finally, Mr. Shusil Sharma was found guilty using forensic evidence.

In the case of Kishan Chand vs. State of Himachal Pradesh the offender was prosecuted for rape of a minor aged 10 to 12 years and found guilty based on forensic evidence from experts that were substantiated by the situation. DNA profiling, Benzidine test, Gel-diffusion technique, and Acid Phosphatase test were among the techniques employed by Mandi’s RFSL. Forensic investigation of scientific samples was also kept. Human sperm was discovered on the prosecutor’s shirt and trousers thus the clothing were retained in a sealed envelope for scientific study. The scarf, money notes, and bed sheet were recovered after a police investigation. The accused was detained and medically evaluated, and it was determined that he was capable of engaging in sexual activity. A blood sample was also taken from the accused.

In the famous Nirbhaya case, all the accused were caught by the help of forensic evidences. The DNA report played major role in catching all the six offenders of the crime. This demonstrates how a forensic report can assist in case decision-making. There has been restrictive use of forensic in the judiciary. Only 5% of the cases focuses on the forensics evidences rest most of the judgements are based on non-scientific and non-Forensics evidence. This number should escalate in future by removing the loopholes.This will also lead to better and effective function of the Indian legal system.

Health and safety at crime scene

It is critical to keep health and safety at the crime scene in mind while investigating the crime scene. When an investigator goes to a crime scene, he or she must exercise greater caution and take extra safeguards. Because it entails a high level of danger. Consider a fire scene where the investigator must be extremely cautious while simultaneously seeking help from the fire department; he must ensure that he does not fall in debris because the ground is quite fragile. The investigator’s PPE is very important; he must wear slash-resistant gloves, waterproof jackets and hoods, boots, and waterproof slacks, as well as a face mask and high-visibility tabbard,disposable over suit, hydrofluoric acid gel, biohazard bags etc for security and safety purposes. An illustration of a building colliding. In this case, forensic civil and structural experts will analyse the cause of the building collapse and provide their findings to the court. The court will make a connection between the bits of evidence and come to a conclusion, and the investigator must put his health and safety first during the investigation.It is also required to use different equipment’s for picking up fragile substance.There are many acts and regulations for health and safety at the crime scene. Fingerprints powder has to be carried because concentration of drugs may lead to explosions. When analysing a body with a lot of fluid fluids, the criminal investigator must constantly be cautious because anything may happen at a crime scene, and even a minor mistake can lead to a major blunder. The importance of safety and health during a criminal investigation should not be neglected, and significant care should be taken to guarantee that successful results are obtained. The investigator is exposed to a number of substances in order to test a multitude of subjects, as well as rays that could have a deleterious impact on his eyes. All of these factors must be considered when conducting or participating in an inspection. The  investigator at every step must be careful in order to sustain the situation.

Conclusion

Health and safety during investigation  forms a essential part of monitoring process that are required to carry out. Constructive, credible, and timely investigations will be conducted. The investigator’s/investigation team’s goals are to figure out what happened and provide the reports putting your own health and safety precautions in mind. It is necessary to have a better grasp of how forensic science can be used to identify serial killers who commit crimes againstwomen and children, as well as the safety precautions that must be followed when doing so.The role of forensic science in solving crimes includes procedures such as determining the cause of death, identifying suspects, locating missing persons, and profiling criminals. Forensic pathologists use autopsies to determine the cause of death. During these procedures, they examine a person’s fluids and tissues to identify the cause and manner of death (for example, natural causes or homicide). Forensic scientists can identify suspects by analysing evidence obtained at the scene of a crime, such as fibres, hairs, blood, and fingerprints. Innocent persons are also cleared using these approaches.

Forensic science should be taught at law and medical schools, and students should be encouraged to pursue careers in the field. The government must take initiatives to raise public understanding of the role of forensic science in the criminal justice process. The advancement of research and technology, as well as the relevance of such evidence, must be taught to police, investigative officers, detectives, and scientists. Without a doubt, forensic evidence is much more reliable than other types of dural evidence. We must close the gaps in this domain, which is a boon to the criminal justice system. We must ensure that everyone participating in the legal system makes the most of the opportunity provided by forensic science. Investigating crime and crash scenes, public security and control at public events, people and asset protection, and situational awareness are all examples of public order and safety. To ensure justice for victims and public safety, having access to appropriate information intelligence, full visibility of evidence at a scene, prospective threat points, and environmental risks is critical. In an era of availability of information and instant knowledge, the lack of communication and sharing in this field is astounding.

“Forensic science offers great potential, as it draws on almost every discipline and, in doing so, creates a widespread opportunity for innovation.”

-Mark Walport

References

1.        https://en.wikipedia.org/wiki/Forensic_science

2.       https://www.heraldopenaccess.us/journals/journal-of-forensic-legal-investigative-sciences

3.       https://www.ojp.gov › nijPDF -Crime Scene Investigation: A Guide for Law Enforcement

4.       http://www.jpgmonline.com/text.asp?2000/46/4/303/250

5.       http://www.theprotector.in/role-of-forensic-science-in-the-criminal-justice-system/

6.       Mukesh and ors. Vs State of Delhi, Delhi High Court, 15th December 2014. Crl. A. No. 784 of 2008

7.       https://indiankanoon.org/doc/338008/

8.       https://indiankanoon.org/doc/1626264/

9.       Forensic Scientific Evidence: Problems and Pitfalls in India, SCIDOC publishers.

This blog is written by Aastha Prakash , 3rd year student of Ramaiah Institute of Legal Studies. Aastha has incredible writing and research skills. She has a deep interest in studying procedural laws, constitutional law and human right laws. She always keeps an eye for new socio-political development happening around.

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Introduction

Before starting, there is a saying by Hendrik Hertzberg, "Marriage should be between a spouse and a spouse, not a gender and a gender"

 

The same sex marriage falls under Section 377 of the Indian Penal Code. This section makes sex or marriage with the same gender punishable in the eyes of law. But the Supreme court gave its statement and decriminalized Section 377 and made gay sex legal on September 6, 2018.

Homosexuality is a taboo in India. In Delhi High court ruling Naz Foundation vs Govt of NCT of Delhi[1], the Delhi High court on July 2009 held this mentioned provision unconstitutional and its respect to sex between same genders or consenting adults. This ruling was overturned by the Supreme court of India on 11th December, 2013. In today's times, the attitude of people towards same sex marriage and homosexuality has changed slightly. Different organisations have come forward to decriminalise homosexuality in India. These organisations such as Naz Foundation Trust India, the National AIDS control organization, Union Health Ministry, Law commission of India, Planning Commission of India and many others have lended their support. They have worked hard to bring tolerance and social equality for the LGBTQ community lesbian, gay, bisexual and transgender people.

 

Recognition of same sex relationships: A boon or Ban

Same Sex Marriage is not legally recognised in our country. Not only this, even same sex couples are not offered limited rights like civil union and domestic partnership. In contrary to this, in the year 2011, The Haryana court gave its statement in favour of two women and granted legal recognition to same sex marriage which involves two women.

In a landmark case judgement Navtej Singh Johar vs Union of India[2], here, the supreme court decriminalised section 377 of IPC that is consensual homosexual intercourse and allowed them for same sex marriage. Same Sex marriage is also called gay marriage or homo sexual marriage.

The marriage equality was first granted on 1st April, 2000 in Netherlands to same sex couples. This practice is performed and recognised in almost 29 countries all around the world. There are some countries where same sex marriage is not at all legal and there are laws which prevents this as a preventive measure. The recognition of same sex marriage is said to be a human right and civil right and also taken to be a political and religious issue.

 

Issues of same sex marriage

There are certain issues which are faced by same sex couples or same sex parents.

 

1)      Parenting

The scientific literature shows that a person's physical and psychological well being depends on the marriage and the children are benefited after being raised by both parents whether they are of same sex or mixed sex. There has been an argument that same sex marriage should be legally recognised because it will be beneficial for the children of same sex. Scientific reports have shown that lesbian and gay parents are fit as heterosexual parents. The children of same sex parents are psychologically healthy.

 

2)      Adoption

Some states have allowed that same sex couples can adopt children. States like Andorra and Israel do not recognise same sex marriage and even do not recognise joint Adoption. Stepchild adoption is allowed in some states but there is an exception. Only couples having same sex relationships but are unmarried can adopt children.

 

3)  Surrogacy and IVF treatment

The option of surrogacy is there for a gay man or bisexual person. Surrogacy is a process where a woman bears a child through artificial insemination for another person or it can be that a woman carries a surgically implanted fertilized egg of another woman to birth. These arrangements for gay or bisexual may be legal but are controversial in several jurisdictions.

 

4) Transgender and intersex people

It might have implications for the same sex couples in which one party or both the person is a transgender. It totally depends on how sex is identified in a jurisdiction. The intersex individuals or the transgenders are prohibited from marrying the opposite sex partners. Due to legal distinctions, they are even not permitted to Marry the same sex person as they are. A transgender cannot marry a transgender. There are some jurisdictions which allows a transgender male to marry a transgender female and it is legally valid. According to the UK Gender Recognition Act 2004, marriage are only for mixed sex couples and civil partnerships are there for the same sex marriage.

 

The state of Affairs in India

Presently, India does not have a unified marriage law and is mostly determined based on religion and culture. The only state which has a unified marriage law is in Goa. But in Indian laws, it is expressly defined that marriage is between opposite sexes. India is a country where inter caste marriage still faces wrath to be legally accepted by most parents, what more can be expected? The acceptance of same sex marriage may be a challenge to all but not an impossible one. There were two men who filed a suit in Kerala High court in 2020[3], saying that the prohibition of same sex marriage violates different constitutional provisions. There were a couple of citizens who proposed to draft a uniform civil code in 2017 which would make same sex marriage legal in India which would define a marriage of a woman with another woman, a transgender with another transgender and continues. Here any kind of gender based discrimination will be ruled out.

The faces of the Section 377 verdict Lawyers Menaka Guruswamy and Arundhati Katju stated that their next step would be to make same sex marriage legal in India. This would be a step that would take the LGBTQ rights to the new level both legally and socially.

 

Conclusion

Since generations, the LGBTQ people have struggled hard to attain their own rights as dignified individuals and the world has its fair share to let those people down. The legal recognition of the same Sex Marriage is the thing which is very much hopeful in India, is this a right to a love and isn't love is an expression? The question arises if marriage is a bond between two people for a lifetime, then from where does gender or sexuality comes to determine this one ness? There is a wonderful line which is said my the lawyer Menaka Guruswamy quoting ,"We are not a nation that recognizes girlfriends or boyfriends or dating, we’re a nation that sanctifies one kind of relationship and that is marriage"

AUTHORED BY: SHARANYA CHAKRABORTY


[1] 160 Delhi Law Times 277.

[2] AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016.

[3] Gay couple moves Kerala high court to register marriage, Times of India (January 2020) .

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Introduction

The economies of nations are linking and being integrated into a global economy as a result of increasing globalisation. Globalization has made it easier to perform cross-border economic operations, resulting in an increase in international trade. This has opened doors for investors all over the world, and many new investment routes and possibilities have arisen as a result. Investors take a lot of risks when interacting with and conducting business across borders. Multiple jurisdictions, rules and regulations apply to different nations. As a result, before making an overseas investment, foreign investors must consider a number of variables, one of which is insolvency laws. The Article will be discussing an overview of the Cross Border Insolvency in India.

Cross Border Insolvency

Cross-border insolvency refers to a scenario in which an insolvent debtor owns assets in more than one jurisdiction or when part of the creditors is located outsidethe country in which the insolvency proceedings were filed. [1]Every shareholder wants to preserve his or her own rights and interests when a company goes insolvent, which is where cross-border insolvency rules come into play. Cross-border insolvency rules apply to insolvent firms with operations in multiple countries. Although the word “cross border insolvency” is not defined in the Code, it can be roughly characterised as insolvency of debtors with assets or creditors in many countries, or who are subject to bankruptcy proceedings in multiple jurisdictions.

Evolution of Cross Border Insolvency

When Jet Airways Private Limited [2]filed for insolvency at the NOORD Holland District Court, the idea began to take form. There were no provisions in the Code for deciding on foreign governance. Due to non-payment of dues to a European cargo firm, a Jet Airways aircraft was cancelled at Amsterdam, and the Jet Group was facing insolvency proceedings in both the Netherlands and India. The Dutch court administrator went to NCLT, where his plea was turned down, and he ended himself in NCLAT. NCLAT ordered Jet Airways creditors to file an affidavit of confirmation for cooperation with the Dutch Administrator, pay the Dutch Administrator's expenditures, and extend credit to foreign lenders. This was a scenario similar to that of Indian creditors, who have the same right to file claims with the bankruptcy resolution expert monitoring the proceedings. The NCLAT has mandated that the Cross Border Protocol be submitted and agreed upon with the conditions and circumstances under which they would engage in the ongoing Insolvency process, with the exception of the Dutch Administrator's participation in Committee of Creditors meetings.One of the most important cases to understand the need for insolvency provisions with different jurisdictions was the case of Jet Airways Pvt. Ltd.

Major Aspects of Cross Border Insolvency

Cross-border insolvency primarily consists of three components:

• The insolvent firm may have a number of overseas creditors who want their rights protected even though they are not located in the country where the bankruptcy proceedings are taking place.

• An insolvent firm may have assets in another country that a creditor may seek through bankruptcy processes; 

• Insolvency proceedings involving the same debtor may be started and proceed in multiple countries.

The first instance is addressed by the Insolvency and Bankruptcy Code of 2016, which makes no distinction between local and international creditors. Under Section 3(23) [3]of the Code, the phrase “person not located in India” is included in the term “person”, and therefore the definition of creditors permits overseas creditors to commence and participate in insolvency proceedings under the Code. When it comes to the allocation of assets in the case of an insolvent company's liquidation, foreign creditors now have the same rights as domestic creditors. However, the Code still lacks a system for reciprocity, collaboration, and coordination across jurisdictions of an Indian court or tribunal seeking help from foreign courts or bankruptcy agencies where an insolvency case may have cross-national ramifications. Sections 234 [4]and 235 [5] of the Joint Parliamentary Committee's Report were added to the Joint Parliamentary Committee's Report to address these problems. According to Section 234 of the Code, the Central Government may engage into bilateral agreements with other governments for the purpose of upholding the Code. When a debtor's assets are located outside India, Section 235 authorises an Indian court or tribunal to write a letter of request for assistance to a foreign court or tribunal.[6]

 

A Brief of The UNCITRAL Model Law

In 1997, the United Nations Commission on International Trade Law (UNCITRAL) developed the UNCITRAL Model Law on Cross Border Insolvency to address the insolvency of corporations with operations in many countries (Model Law). The Model Law came into force on the 30th of May 1997, during the UNCITRAL's 13th session in Vienna. The Model Law has now been adopted by 44 countries as a common framework for dealing with cross-border insolvency.

The Model Law does not force implementing countries to harmonise their substantive domestic insolvency and bankruptcy laws; rather, it defines four elements to aid cross-border insolvency: access, recognition, relief (assistance), and company. Basic provisions, access of foreign representatives and creditors to a state's courts, recognition of foreign processes and remedies, collaboration with foreign courts and foreign representatives, and mechanism for dealing with concurrent cases are the five chapters of the Model Law. The Model Law establishes a distinction between “foreign main proceedings” in which the debtor has a “centre of principal interest” and “foreign non-main proceedings” in which the debtor has a “establishment,” as well as the reasons for distinguishing the two. The Model Law also provides a public policy exception, which permits a country to decline to comply with the Model Law if it would be plainly contrary to its national interests. After adjusting the Model Law to their local situations, countries have incorporated it into their own legal systems.The UNCITRAL Model has several important features:

a) After the model law is implemented, India would become a preferred investment location for foreign creditors. The significant economic benefits include considerably faster information interchange between nations, assistance and collaboration in sustaining the organization's assets, resulting in successful reorganisation and restructuring, and an effective credit recovery process.

b) In terms of processes for foreign businesses, this statute is significantly more precise than the IBC. Because a country can modify the model law to meet its conditions and local insolvency laws, this legislation is flexible.

c) Furthermore, if the foreign proceedings run counter to the country's national policy, the proceedings' validity may be called into question.

d) The UNCITRAL Model Law facilitates cooperation between courts and insolvency practitioners in both domestic and foreign jurisdictions.

The Cross Border Insolvency Provisions under IBC

The only provisions of the Bankruptcy and Bankruptcy Code that apply to cross-border insolvency are sections 234 and 235. These two sections were inserted as enabling provisions in response to the Joint Parliamentary Committee's recommendations (Joint Committee on the Insolvency and Bankruptcy Code, 2016). International agreements are dealt with under section 234. It states that the Indian government may engage into an agreement with another country's government to enforce the Code's provisions. The Indian Government may decide that applying the IBC to assets of a corporate debtor or debtor domiciled in a country other than India with which reciprocal agreements have been made is subject to the IBC's conditions (Section 234).

In some cases, Section 235 of the IBC covers letters of request to countries other than India. It states that if a resolution professional, liquidator, or bankruptcy trustee believes that the corporate debtor's or debtor's assets are located in a country with which reciprocal agreements have been made, he may apply to the Adjudicating Authority (the National Company Law Tribunal) under the Code for evidence or the initiation of proceedings. If the Adjudicating Body is satisfied that evidence or action regarding the overseas assets is necessary in connection with the insolvency resolution process, liquidation, or bankruptcy proceeding, it may send a letter of request to a court or a competent authority to deal with the request (IBC, Section 235). While the insertion of these two sections to the IBC is significant, there are still some concerns to be resolved. [7]

Conclusion

India has yet to receive the right legislative framework to oversee cross-border insolvency issues, which complicates the judiciary’s task of resolving cases involving Indian and international corporations. The framework for cross-border insolvency would strengthen the Indian financial system’s long-term stability. At the national and international levels, it would promote openness (data disclosure, fiscal and monetary policy), financial stability, and marketing integration. It would assist stakeholders in more effectively managing their financial risk and enterprise sectors, as well as ensuring efficient credit and resource allocation, hence increasing economic productivity and growth.

 

Endnotes

[1] Halliday, T.C. and Carruthers, B.G., 2007. The recursivity of law: Global norm making and national lawmaking in the globalization of corporate insolvency regimes. American Journal of Sociology, 112(4), pp.1135-1202.

[2] State Bank of India Vs Jet Airways (India) Ltd CP 2205 OF 2019 NCLT ON 20.06.2019

[3] Section 2(23) of The Insolvency and Bankruptcy Code, 2016: “person” includes -- (a) an individual….and includes a person resident outside India

[4] Section 234 of the The Insolvency and Bankruptcy Code, 2016: Agreements with Foreign Countries – (1) The Central Government……………as may be specified.

[5] Section 235 of the The Insolvency and Bankruptcy Code, 2016: Letter of request to a country outside India in certain cases- (1) Notwithstanding anything contained in this code…………….to deal with such request.

[6] Bornali Roy, India: Cross Border Insolvency: A New Regime, June 29, 2017, https://www.mondaq.com/india/insolvencybankruptcy/606446/cross-border-insolvency-a-new-regime

[7] Ishita Das, The Need for Implementing a Cross-Border Insolvency Regime within the Insolvency and Bankruptcy Code, 2016, Vikalpa Vol 45 Issue 2, https://journals.sagepub.com/doi/pdf/10.1177/0256090920946519

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This Article is authored by Parth Sindhwani, student of Jims Engineering Management Technical Campus, School of Law (Affiliated to G.G.S.I.P.U).

 


ABSTRACT

International Court of Justice (ICJ) is the highest Court of the world. It was established by the United Nations organisation in 1945. It is one of the six principal organs of United Nations. It has contributed a lot in development of international law and in maintenance of international peace and security. However, ever coin has two sides. Along with numerous contributions, it has some limitation of its own. It is mainly dominated by the other organs of UN organization which makes the states of the world feel that it is a biased body. The limitations of ICJ need to be taken into account and reforms need to be introduced in order to improve the functioning of the Court. This research paper mainly deals with the study of International Court of Justice, its contributions and limitations. Further, the reforms which need to be introduced in the present times for improving the efficiency of the Court are also mentioned.

KEYWORDS: United Nations, International law, ICJ, Effectiveness, Dependence

INTRODUCTION

The International Court of Justice is commonly known as ‘World Court’. It is the principle judicial organ of United Nations organization. ICJ is believed to be the successor of ‘Permanent Court of International Justice’. PCIJ was established in 1920 by the League of Nations which is believed to be the predecessor of UN. But, after the World War II, the functioning of PCIJ and League of Nations came to an end. After this, the need was felt for the establishment of United Nations organisation. As a result of this, UN set up a committee in April, 1945, ceased the functioning of PCIJ and set up a new Court which came to be known as International Court of Justice.

However, the Statute of ICJ is a copy of statute of PCIJ and Article 92 of UN Charter also provides that the statute of ICJ is based on statue of PCIJ. Further, the judgements of PCIJ are also enforceable in ICJ. This shows that ICT and PCIJ are quite similar.

ICJ was established in June, 1945 and started functioning from 18th April, 1946. Its seat is located at the Peace Palace in The Hague, Netherlands. Currently, John Donoghue is the president of ICJ. As it is an organ of UN organization, Chapter 14 of UN Charter (Consisting of Articles 92 to 96) deals with the ICJ. Apart from that, ICJ has its own statute which has five chapters and 70 articles. For easy communication among the member states, there are two official languages of ICJ i.e. English and French.

CONTRIBUTIONS OF THE ICJ

ICJ was established by UN in 1945 to settle the disputes between different states and the matters of international concern to maintain international peace and security. The Court also provides advisory opinions to various international organisations and agencies when asked for. However, all these decisions are not binding on the organisations. Till date, ICJ has entertained around 180 cases and given advisory opinions to different international organisations and agencies.

ICJ has played a significant role in the progress of international law and has maintained peace and security worldwide. The major contributions of ICJ are as follows:-

A)    Establishes ‘Rule of Law’- As remarked by Judge Nagendra Singh, ICJ is the basic necessity for the establishment of ‘Rule of law’ among the states. This means that ICJ maintains the Supremacy of law which binds the states to act in a ‘just’ and ‘appropriate’ manner and maintain friendly relations with each other.

B)    Settlement of Disputes: The Court’s main function is to settle the dispute that arise between the states and are of international importance. Till date; around 180 cases are entertained by it. By doing this, the Court contributes in maintenance of international peace and security and prevents the states from making use of arms and weapons to solve their disputes.

C)    Provides advisory opinions: The Statute of ICJ empowers the Court to give ‘advisory opinions’ on any legal question on the request of the international organizations or agencies. However, these advisory opinions are not binding on them. Till date, ICJ has given about 24 advisory opinions to different organization and agencies.

D)    Development of international law: ICJ is an international judicial body and settles the disputes according to the treaties and conventions between the states. But, when there is no international treaty or convention in a dispute for a particular point, it applies the general principles of law recognized by the civilized states that contributes to the progress and development of the international law.

E)     Clarifies vague international law: Many a times, some rules of international law requires clarification as to what it wants to convey. This power to clarify the vague concepts of international law is given to ICJ. For example-In the Anglo Norwegian fisheries case (United Kingdom v. Norway, 1951 I.C.J. 8.), the Court clarified the law related to delimitation of fisheries zone and the method of measurement of the territorial sea.

F)     Interpret UN Charter and international treaties: When the dispute arises and requires the interpretation of Charter or a treaty, the Court is responsible for its interpretation. For example: In the Nicaragua v. United States Case (1986) ICJ Rep 14, which was related to military and paramilitary activities in and against Nicaragua, ICJ interpreted the UN Charter provision related to intervention and settled the dispute accordingly.

G)    Doctrine of Precedent: Although Article 59 of Statute of ICJ undermines or even Prohibits the ‘Doctrine of precedent’ by stating that the decision of the Court shall be binding only on the parties to dispute but ICJ follows the doctrine of precedent and has not deviated from its past decisions till now.

CHALLENGES FACED BY THE ICJ

ICJ has contributed much in the progress of international law but there are a number of challenges associated with its composition, jurisdiction, election of judges, etc. These obstacles stand as an obstacle in the proper functioning of the Court.

As pointed out before, ICJ has some limitations also associated with it that hinders it’s proper and effective functioning. So, the major limitations or the challenges faced by ICJ are:

A)    Dominance of UN organization- This Court, being an organ of UN is not free from the dominance of UN organization mainly, the Security Council. The election of judges is done on the recommendations of Security Council and General Assembly only. Further, Security Council is the body responsible for enforcement of the orders and judgments of the Court.

B)    Election and re-election of judges- There are 15 judges at ICJ that are elected by the Security Council and the General Assembly for tenure of nine years and they can even be re-elected if they are further recommended after the expiry of nine years. A judge should be tested for his or her qualification and those who got absolute majority in both Security Council and General Assembly are elected which are not even judicial bodies.

C)    Determining its own competence- The Court has the right to decide on its own whether it has jurisdiction over a case or not. It is sometimes felt that this power is being inappropriately used by the Court. For example- In UK v. Iceland case, when Britain filed a complaint against Iceland, the Court contended that it has no jurisdiction to decide the case.

D)    Preliminary objections- A party to dispute may make preliminary objections to excuse its liability. For example, the defendant may submit that the matter is within its domestic jurisdiction and may escape from the World Court’s jurisdiction. However, in a leading case, the Court held that it shall not be bound by the decision of preliminary objection of the parties in that case.

E)     Limited jurisdiction to States only- The jurisdiction of the Court is open for all the states of the world but individuals, group and private enterprises cannot initiate a matter at ICJ which shows that the jurisdiction of the Court is limited to states only.

F)     Consensual jurisdiction- Mostly, the jurisdiction of ICJ is based on consensuses of the parties to dispute that is it only accepts cases where both defendant and the accused agree to present the case to the Court. This limits the Court’s power and questions the efficiency of the Court.

G)    Enforcement of judgments- The responsibility of successful enforcement of judgments given by the Court is given to Security Council but Security Council has proved its incapability in doing so. For example- In Corfu channel case, Albania refused to implement the orders given by the Court. Further, similar issues arose in the Nuclear test case.

H)    Relation with other international judicial bodies- Although, International Court of Justice is considered as the highest Court of the world but other international Judicial Courts and tribunal like International Criminal Court(ICC) works independently of the World Court and possesses no relation with it at all. However, being the dispute settling authorities all these institutions must act parallel to each other.

I)       Concept of ad hoc judges- When a country to dispute does not have any representation among the fifteen judges of the Court, an ad hoc Judge for that country is appointed to represent that country’s interest. But, this concept is widely criticised as it questions the impartiality and ‘just’ nature of the other judges of the Court.

SUGGESTIONS

We have already talked above the contributions and the limitations of the ICJ. The limitation or the challenges faced by the Court needs to be addressed in order to enable the Court function efficiently. There are some recommendations or suggestions which can help in improving the status and the functioning of ICJ in the present times. These suggestions are as follows:

1.      There is a need of reduction of the dominance of UN organization and power given to the Security Council on ICJ.

2.      There is an urgent need to replace the consensual jurisdiction with the compulsory jurisdiction to improve the status of the Court.

3.      All the judgments of the Court should be binding on all the states.

4.      There is a need to replace the current method of election of the judges because the judges should be elected based on their qualification, talent and experience and not based on the votes. The concept of votes proves the political functioning of ICJ.

5.      Further, the tenure of the judges at ICJ is 9 year and it also contains the provision of re-election. The provision of re-election should be deleted and the term of the judges should also be reduced so that new judges could also be appointed.

6.      The concept of appointment of ad hoc judges should be removed. The aim of all the judges is to do the justice and there is no need of representation if a State is right in its case. This provision even questions the impartial nature of the judges.

7.      The Security Council of the United Nations is responsible for enforcement of judgments given by the Court. However, it is not able to fulfil its duties and responsibilities. So, there is a requirement of establishing a more responsible body for the enforcement of judgments given by ICJ.

8.      There is need of expanding the Court’s jurisdiction to the individuals, groups as well as private enterprises. It should not be only limited to the States.

CONCLUSION

By this research paper, it can be concluded that the International Court of Justice is performing various functions which include settlement of all the disputes between different states, establishing ‘rule of law’, providing advisory opinions to different organizations, helping in development of international law, interpreting UN charter and treaties when required, etc. This shows that ICJ has made a huge contribution in maintaining rule of law and international peace and security across the world. But there are limitations of the Court as well. Proper efforts should be made to deal with these limitations and abolish them. Further, additional efforts should be made to improve the functioning of the Court. 

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AUTHORED BY: PRIYA KUMARI