Guest Post: Lily Thomas – the possible loophole?

Originally posted on Let's talk about the law:

The following is a Guest Post from Kartik Monga, a third year student at NALSAR. We hope to see more of his writing in the future.

The recent drama around the ordinance to protect legislators from instant disqualification in case of conviction by the trial court and the eventual withdrawal of the ordinance has demonstrated that the political masters can’t blatantly ignore the amplified demand for cleaner politicians by the citizens. The need for an ordinance arose after the Supreme Court judgment on the writ petition questioning the constitutional validity of Section 8(4) of Representation of People Act, 1951 filed by  Ms. Lily Thomas and the organisation Lok Prahari.

Petitioners

Senior Advocate Fali S. Nariman appearing for the petitioners questioned the Parliament’s power to enact Section 8(4) of the Act.  Section 8 deals with the disqualification of legislators on conviction for certain offences.  Sub-sections 1 to 3 of section 8…

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Bhullar, the anomalous distinction.

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London 223 Free Bhullar demo Whitehall April 1...

London 223 Free Bhullar demo Whitehall April 15 2013 (Photo credit: David Holt London)

The full text of Devender Pal Sing Bhullar vs. State of NCT of Delhi is available here.

Last few months have witnessed the revival of the death penalty debate in India. The questions have always been there but they were pushed out of the limelight because of an eight year unofficial moratorium exercised by the Indian State. Then suddenly last November, convict in the Bombay ‘terrorist’  attack Ajmal Kasab was executed in secrecy. This was followed by execution of Afzal Guru in Tihar Jail. Push for clemency for high-profile death row convicts like Bhullar and convicts in Rajiv Gandhi case by respective State governments has also made the claims for abolition of Death Penalty louder.

Bhullar has been marginally more lucky than Kasab and Guru, instead of secretly executing him after rejection of his mercy petition, the government allowed him to exercise his right to approach the Supreme Court after the rejection of petition under Article 72 by the President.[1]  Bhullar was convicted under TADA, based on his own confessional statement retracted later and no other corroborating evidence but the conviction of Professor Bhullar is a separate debate in itself.

Justice Singhvi and Mukhopadhaya took more than 10 months to pronounce the final judgment after closing of the arguments and still came up with an extremely faulty reasoning. The only question before the honourable bench was – Is inordinate and unexplained delay of 8 years in deciding the mercy petition a sufficient ground for commutation of death sentence to life? In the 70 page long judgment, Justice Singhvi went into detailed discussions about the whole issue of Capital punishment. The court seems to have confused the question of excessive delay with the award of death sentence itself.

In para 39, while dealing with the question of delay, the court reaffirms that while deciding the quantum of sentence, the court is duty bound to take into consideration the nature of the crime, the motive for commission of the crime, the magnitude of the crime and its impact on the society, the nature of weapon used for commission of the crime, etc.[2] In the next para, the court came up with the most absurd bit of reasoning, saying that the whole chain of precedents from Vatheeswaran to the constitutional bench judgment of Triveniben, won’t apply to this case because this case was on a different pedestal from all the other cases as it dealt with terrorism (TADA).[3] Though in not even a single case before Bhullar the court has distinguished between people on death row.

Now this super distinction created by the court is wrong at more than one levels. First the judgment in whole and this particular distinction clearly shows a belief that the judiciary can treat ‘terrorists’ as some kind of lesser human beings and thus deny them even the fundamental rights guaranteed in the constitution. This distinction is clearly without any basis in the death penalty jurisprudence or the constitutional framework and in all likelihood is violative of Article 14 i.e. right to equality to before law also. Second, the distinction at this stage is uncalled for because the case was already characterized as rarest of the rare and that’s why it attracted death penalty in the first place. If the court starts looking at the magnitudes, motive and nature of the crime at this stage then every case would fail even after the convict has suffered extremely long unexplained delay in execution because the fact that the case reaching this stage already means that it was a rarest of the rare crime.[4]   Third, this so-called distinction between a terrorist and the rest depends squarely on the use draconian laws like TADA by the government and the judiciary isn’t the one deciding whether a particular case comes under the category of special legislation or normal penal code. Thus the principle laid down in Triveniben and then followed in Sher Singh and other cases that long delay may be a ground for commutation of sentence of death into life sentence[5] would apply to people convicted under normal penal code but won’t apply to people convicted under special legislations like TADA, giving the executive a free hand to keep some specific mercy petitions pending for indefinitely long times. This would lead to a situation where people are convicted of leading a mob and killing scores of people from one community in the most brutal manner possible while holding a public office won’t be labelled as ‘terrorists’ but someone who is convicted only based on one confessional statement extracted in police custody is called a terrorists.[6]

The government has kept Bhullar on death row for more than 8 years and has clearly failed to give any reasoning for inflicting this inhumane mental and physically agony on him. The Supreme Court which was supposed to check such transgressions by the state has failed in its duty and has provided no principled reasoning to treat humans labelled as ‘terrorists’ at a different footing. It’s extremely necessary that whenever the Supreme Court revisits this question, they correct this blunder and restore the constitutional protections to the people on death row.


[1] Kehar Singh v Union of India (AIR 1989 SC 653) - “the question as to the area of the President’s power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review”

[2] ¶ 39 referring to Machi Singh.

[3] ¶ 40 of the judgment.

[4] I feel that this analysis was caused by the wrong interpretation of this specific para in Triveniben – “Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but , this Court will only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusion reached by the Court while finally maintaining the sentence of death. This Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into Imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the decision in Vatheeswaran’s case cannot be said to lay down the correct law and therefore to that extent stands overruled.” The constitutional bench when held that the court may question the delay in light of the circumstances, it meant the effect of those circumstances on the delay or how they caused a delay in the decision of the President but not a standalone analysis of the circumstances of the crime.

[5] ¶ 40 of the judgment.

[6] There can be separate debate about the label as someone who is terrorist for someone is also a freedom fighter for someone else.

Huge boost to Generic Drug industry. SC rules against Novartis.

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Link to case http://judis.nic.in/supremecourt/imgs1.aspx?filename=40212

A detailed summary of the case: http://thedemandingmistress.blogspot.in/2013/04/link-to-novartis-judgment-of-supreme.html

Glivec (Gleevec) film tablet made by Novartis.

Glivec (Gleevec) film tablet made by Novartis. (Photo credit: Wikipedia)

In a long-standing battle between Novartis, one of the biggest pharmaceuticals in the world and the Cancer patients Aid Association, the Supreme Court dealt Novartis a huge blow by ruling against it.[1] While Novartis has suggested that the judgement will reflect on their future activity in and related to India, Indian Pharma and activists around the world have lauded the judgement.

Novartis has for long manufactured Glivec, a drug used in the treatment of certain forms of leukaemia with good results. The case dealt with the patent application of a modified form of Glivec. While Novartis argued that the modification being significantly different should be granted a different patent, the Controller of Patents relied on section 3(d) of the Patents Act to refuse the patent.[2] Section 3(d) reads:

3. What are not inventions. The following are not inventions within the meaning of this Act,-

(d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.

Explanation : For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy;

The Supreme Court decided that the new drug was not substantially different from Glivec with respect to efficacy and hence the patent could not be granted.

The judgement comes as a huge relief to the various cancer patients in the country who are dependent on the drug and also to the Generic medicine industry in India as a whole.[3] There are two other cases, of matter related to drugs produced by Roche and Pfizer pending in the Supreme Court of India and the judgement will immensely influence those judgements. Effectively the judgment has upheld the objective behind section 3(d), which was to stop Evergreening, a practice common in the US and Europe. Evergreening is when Pharmaceuticals patent slightly modified medicines to continue their exclusive hold on a market. The practice results in the medicines for several diseases being very highly priced causing immense difficulty to people in developing and less developed countries. India exports Generic drugs to a whole lot of Asian and African countries and the judgement will also be a boon for patients in such countries.[4]

Novartis has claimed that the judgment would reflect poorly on India as an investment destination for pharmaceuticals and have also claimed that it will deter Novartis from not only researching in India, but also releasing new drugs, thus creating a anti-growth drug environment in the country.[5]

As a state that cannot by itself successfully deal with the health of its citizens, and as a country on which other such states are dependent, it was essential that the Supreme Court rejected Novartis’ patent. The judgement will help curb evergreening and make expensive drugs accessible to more people around the world.

[1] http://www.thehindu.com/news/national/landmark-verdict-gives-big-boost-to-cancer-patients/article4569056.ece

[3] The generic Glivec costs significantly less (one thenth) than the Novartis product. The same is the case with all other generic drugs.

BLOCKED! by Arindam Chaudhuri

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Censorship is unaccepetable and it’s just worse when it’s on behest of a person who is even more irritating than Arnab Goswami.

Untitled[1]

On Feb 14th the Department of Telecom under Ministry of Communication and Information Technology ordered the ISPs to immediately block 78 URLs, the only thing common in all of them was that they talked about IIPM or Arindam Chaudhuri in one way or the other.  The content blocked from varied widely ranging from an UGC notice to news to personal blogs and even to some satire websites.

[2][3]

Untitled-1[4]

Many prestigious news websites like Indian Express, Firstpost, Outlook, Kafila and Caravan magazine suffered as part of the order and there was a huge uproar against the order. Initially there was some confusion and people blamed DoT[5], the ministry and Kapil Sibal (not entirely wrong) but it is wasn’t an executive action instead it was based on an order from a court in Gwalior.[6]

The suit was an action for defamation filed by a channel partner of IIPM. The plaintiff vehemently argued that all these URLs contained content defamatory to IIPM’s reputation and thus asked for an injunction. There are two types of injunctions i.e. interim and ad-interim both governed under Rule 1 & 2 of Order XXXIX of Civil Procedure Code.[7] Though the exact court orders are still not available, based on the statement issued by all the affected parties about the lack of any warning or notice makes it clear that it is an ad-interim injunction and not an interim injunction. Ad-interim injunction is only till the next hearing whereas the interim injunction is till any other relevant order passed by the court.[8]

According to the Order 39, rule 1 and 2 the plaintiff need to satisfy three basic conditions. These being a prima facie case, balance of convenience and likelihood of irreparable injury. Looking at the three conditions in some more detail:

A prima facie case implies the probability of the plaintiff obtaining the asked for relief based on the evidence presented before the court. The court considers evidence from both the sides while considering the existence of prima facie case for grant of temporary injunction.[13] A prima facie case must not be confused with a prima facie title, which would be established on evidence at the later stage of trial.[14] In this case the IIPM may have easily established the case of defamation for few of the URLs but most of the URLs could have easily escaped the claim of defamation based on general defences like the content being truthful or satirical. The second condition is balance of convenience and the extent of damage that is likely to be caused to them.[15] The plaintiff needs to establish the balance of convenience in the event of withholding the relief of temporary injunction will, in all events, exceed that of the defendant in case he is restrained.[16] In this case some URL’s like big news agencies are likely to suffer a lot more from injunction then the IIPM. Coming to the question irreparable injury,  most  of the  URL’s were not recent[17] and therefore it is highly improbable that IIPM was suddenly likely to suffer from some kind of irreparable damage.

Untitled-2[18]

From the analysis of the abovementioned three conditions it is quite clear that the court didn’t go into the merits of the specific URLs and in the absence of any of the defendants the court accepted the pleading of the plaintiff on face value and passed a blanket order.

The court also failed to follow the established and recent judicial precedence dealing specifically with injunction in cases of defamation.  The most landmark case in this regard is the British case of Bonnard v. Perryman[19] which was also followed by Delhi High Court recently in a similar case of Tata Sons Ltd v. Green Peace International[20]. In Bonnard case Lord Denning noted “that it would be unjust to fetter the freedom of expression, when actually a full trial had not taken place, and that if during trial it is proved that the defendant had defamed the plaintiff, then should they be liable to pay the damages.”[21] In the Tata Sons judgement it was observed that “The rule in Bonnard is as applicable in regulating grant of injunctions in claims against defamation, as it was when the judgment was rendered more than a century ago. This is because the Courts, the world over, have set a great value to free speech and its salutary catalyzing effect on public debate and discussion on issues that concern people at large. The issue, which the defendant’s game seeks to address, is also one of public concern. The Court cannot also sit in value judgment over the medium (of expression) chosen by the defendant since in a democracy, speech can include forms such as caricature, lampoon, mime parody and other manifestations of wit.”[22] In the current case most of the URLs can have easily pleaded the defence of the information being truthful or being satirical. Therefore, it appears that the Court order has moved away from the settled principles of law while awarding an interim injunction for blocking of content related to  IIPM. It is also interesting to note that in Green Peace International, the Court also answered the question as to whether there should be different standard for posting or publication of defamatory content on the internet. It was observed by the Court that publication is a comprehensive term, ‘embracing all forms and medium – including the Internet’.

The next stage is the implementation of the court order. The Information Technology (Amendment) Act, 2008 is the governing law when it comes to internet censorship in India. Section 69A[23] gives the government power to block content on the internet. In 2009, the Union government issued rules by the way of a notification to govern the implementation of Section 69A. These are called the Information and Technology (Procedure and Safeguard for Blocking for Access of Information by Public) Rules, 2009. In the IIPM case the rule 10 applies. The rule mandates it upon the designated officer to block any content if there is court order saying the same.[24]

Freedom of speech is one of the basic and most essential ingredient for any healthy society. The courts which are responsible to provide this and safeguard the right guaranteed in the Article 19 clearly made a mistake in the recent IIPM judgment. There isn’t much of a problem with the provisions of CPC or the IT Act or even the laid down precedent but in the present case the Gwalior court clearly failed to follow the established law and thus ordered a blanket ban numerous URLs. Therefore, there isn’t much need for change in law but for better judicial scrutiny and more restrain on part of the judges.


[1] Sourced from http://defamationman.tumblr.com/ based Shivam Vij of Kafila during a debate with Arindam on Times now.

[3] The blocking order is available at http://www.indiankanoon.org/doc/562656/

[4] Ib.

[6]  Ib.

[7] .C. Sarkar & Prabhas Sarkar, Sarkar’s Law of Civil Procedure 2274 (Sudipto Sarkar, V.R. Manohar & Avtar Singh eds., 11th ed. 2006) (1937)

[8] Ib.

[9] S.C. Sarkar & Prabhas Sarkar, Sarkar’s Law of Civil Procedure 2274 (Sudipto Sarkar, V.R. Manohar & Avtar Singh eds., 11th ed. 2006) (1937); Shamsher v. Rustam, AIR 1988 Raj 188; Prem Chand v. Manak Chand, AIR 1997 Raj 198.

[10] Sir Dinshah Fardunji Mulla, Mulla The Code of Civil Procedure 3349 (BM Prasad, Manish Mohan eds., 18th ed. 2011) (1900).

[11] Id. at 3350; Narayan Rao v. Waman, AIR 1974 Bom 379; Tamul Ali v. Md Ulawaja, AIR 1978 Gau 56 (FB).

[12] S.C. Sarkar & Prabhas Sarkar, Sarkar’s Law of Civil Procedure 2351 (Sudipto Sarkar, V.R. Manohar & Avtar Singh eds., 11th ed. 2006) (1937).

[13] Sir Dinshah Fardunji Mulla, Mulla The Code of Civil Procedure 3320 (BM Prasad, Manish Mohan eds., 18th ed. 2011) (1900); Shiv Shankar Goyal v. Muncipal Council, Ajmer, AIR 1997 Raj 176.

[14] M. P Jain, M. P. Jain’s The Code of Civil Procedure 1055 (Shrinivas Gupta ed., 2004) (2004); Dalpat Kumar v. Prahlad Singh, AIR 1993 SC 276.

[15] Tavener v. Spectors [1957] RPC 498; Wearwell Cycles v Wearwell Industries, (1969) DLT 469.

[16] Sir Dinshah Fardunji Mulla, Mulla The Code of Civil Procedure 3320 (BM Prasad, Manish Mohan eds., 18th ed. 2011) (1900)  referring to Graftek Pvt. Ltd. v. Shri Lord Lingaraj Mahaprabhu, AIR 1999 Ori 49.

[19] [1891] 2 Ch 269

[20] I.A. No.9089/2010 in CS (OS) 1407/2010. Available at http://www.indiankanoon.org/doc/562656/

[21] Supra note 19.

[22] Supra note 20.

[23] Text of Section 69A – Power to issue directions for blocking for public access of any information through any computer resource:-(1) Where the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.

[24] IT Rules, 2009. Rule 10.

Originally posted on Kafila:

This is the audio of the Shahid Azmi Memorial Lecture delivered on 9 February 2013 byYUG MOHIT CHAUDHRYat the Indian Law Institute in Delhi. While the lecture date and topic – death penalty – were scheduled weeks in advance, it co-incidentally happened that Mohd Afzal Guru was hanged on the morning of the lecture. Shahid Azmi was a lawyer in Mumbai. He was 32 when he was shot dead on 11 February 2010.

On Shahid Azmi from Kafila archives:

Previously in Kafila by Yug Mohit Chaudhry:

See also:

More on Afzal Guru from Kafila archives:

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Afzal Guru HANGED

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Afzal guru was hanged today morning at 8 AM inside Tihar jail complex. I am extremely disappointed and to most people this post would come across as an angry rant and nothing more but I am still going to write it.    

Eli Cohen was publicly hanged by Syria on May ...

This hanging is another example of the UPA government taking decisions to achieve their short term political goals and completely ignoring the long term consequences of its actions. Before the winter session of Parliament, Kasab was hanged in secret mission (a clear violation of set procedure and practice). Today, few days before the Budget session the government decided to hang Afzal Guru. There is a joke doing rounds on the net – Overheard at the BJP office- “Advaniji, jaldi uthiye..Hamaare agenda ko phaansi ho gayi” , The congress government is facing strong criticism for being soft on terror by the opposition. With 9 assembly election and the union election looming over its head, the Congress decided to hang some high profile terror accused and gain some votes from the hardliner in the majority community.

I would also like highlight the political hypocrisy of BJP, their allies in Punjab, the Akali Dal can bring an Assembly resolution asking for clemency for Bhullar. Jayalalithaa can pass a resolution in TN assembly seeking clemency for convicted killers of Rajiv Gandhi without it being an issue for any political party but if the same thing would have been done by J&K for Guru the whole state would have been labelled a terrorist by these parties.

I don’t support death penalty for anyone but that is a different debate, in the current case death penalty was awarded in without a fair trial and in clear violation of set norms of justice.

Afzal Guru, a fruit seller from the valley was arrested by Delhi Police just after the 2001 Parliament attack. His trial and conviction has been shrouded in controversy from the very beginning. He was tried without a defence lawyer. All norms of fair trial were flouted by the courts at all level.[1] The Supreme Court said that he should be hanged to “Satisfy the collective conscience of the country”. Numerous senior advocates and activists have argued that it was clear violation of any set standard of fair trial. Senior Advocate and Additional Solicitor journal Indira Jaising herself filed a revision petition in the Supreme Court against their verdict in the case and called Afzal Guru’s sentencing a travesty of justice.[2]

The way in which the execution was conducted by the government clearly violates the set procedure and rules. The Supreme Court has held that even president’s rejection of the mercy petition is open to judicial review[3] but in this case the government hanged him without even informing his family.[4] The government didn’t inform his family about the execution and they missed their last chance to see him.[5] His was not allowed to see his eight year old child for one last time before the hanging. We have become so blood thirsty that we just forget that the so called terrorist is also another Human Being and has rights.

Afzal Guru is not the first Kashmiri to be hanged inside Tihar. In 1984, Maqbool Bhat was hanged and then buried inside Tihar jail. It’s no secret that his trial was also shrouded in controversy. Even after repeated demands, his remains were never handed over to his family.[6] His hanging became a flash point in the struggle for azadi and most of the present day separatists militants  in Kashmir joined the movement when they felt that gross injustice was done to Bhat.[7] Across the valley, there is consensus that Guru wasn’t given a fair trial and his hanging is for sure going to lead to more voices for azadi. The government has decided to handle all this with more repression, curfew is imposed all over the state, television and internet is blacked out.[8] The government won’t realize that they can postpone the protests by suppressing the civil liberties of people but they can never quell them.

The constitution which gives this state the power to take away life by procedure established by law also gives the president the power to grant mercy under Article 72. The president rejected the mercy petition in this case, where the accused has not even touched a gun, he was accused of conspiracy, I don’t know what case would be fit enough for mercy by Pranab Mukherjee. Quoting Yug Chaudhary – The jusitification for mercy has its roots not in merit, but in need. We don’t deserve mercy, we need it. I think all of us — the best and the worst — are in need of mercy, and it is only by showing mercy that, morally, we ourselves become entitled to receiving it.[9]

Arise, awake and stop not till execution is annihilated and the state stands for human life and opposes the death penalty.


[2] http://www.hindustantimes.com/News-Feed/NM21/A-travesty-of-justice/Article1-201020.aspx; even Ram Jethmalani called this trail a miscarriage of Justice.

[4] The government sent a speed post and made sure that it doesn’t reach his family before the execution, it’s a clear case of government violating his rights just another intelligent gimmick by this government.

[5] Family has claimed that they heard about the execution from media and not the government.

[6] I don’t know how the jail manual allows for the body to buried in jail and not given over to the family.

Namit Sharma vs Union of India

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RTI Pune meet 2007

RTI Pune meet 2007 (Photo credit: fredericknoronha)

The recent Supreme Court judgement in the case of Namit Sharma Vs. Union of India has brought the whole RTI mechanism in the country to a standstill. Most of the State Information Commissions have suspended all hearings sine die. The civil society which generally stands united on the question of RTI also stands divided after this judgment. (The Union Government has filed a review petition which is currently pending with the SC)

Case

The writ petition questioned the constitutional validity of sections 12(5), 12(6) anad 15(5), 15(6) of the RTI Act, 2005 which deal with the pre-requisites for an Information Commissioner at Center and State Information Commissions respectively.

The clause (5) says that the Information Commissioner shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.

The clause (6) adds that the Commissioner shall not be a MP or MLA or hold any office of profit or connected with any political party or carrying on any business or pursuing any profession.

The challenge was made to these provisions stating that the eligibility criteria given therein is vague, does not specify any  qualification, and  the stated ‘experience’ has no nexus to the object of the Act.    It  was  also  contended that the classification contemplated under the Act is violative of Article 14 of the Constitution.

While dealing with clause (5) the court said that though the clause has a certain element of vagueness but this vagueness doesn’t lead to any kind of discrimination. Therefore, the clause doesn’t violate the Article 14 of the constitution but the honourable judges felt that the certain requirements of law and procedure would have to be read into this provision to sustain its constitutionality.

Coming to clause (6), the court again said that there is an element of uncertainty and indefiniteness. It further added that “To put it differently, by necessary implication, it excludes practically all classes while not specifying as to which class of persons is eligible to be appointed to that post. The exclusion is too vague, while inclusion is uncertain.  It creates a situation of confusion which could not have been the intent of law.  It is  also not clear as to what classification the framers of the Act intended to lay down.  The classification does not appear to have any nexus with the object of the Act.  There is no intelligible differentia to support such classification.”

The Court also uses the example of similar bodies in other countries and argues how most of them appoint people with legal backgrounds as commissioners.

Then the court elaborately established how information commissions are quasi-judicial in nature with adjudicatory powers akin to a court system and thus concluded that Chief information Commissioner and members of the Commission should be the persons possessing requisite qualification and experience in the field of law and/or other specified fields. The court argued how the various functions of the commissions can be performed more efficaciously by a legally trained mind. Even though the constitutionality of the clause (5) was accepted by the court earlier, towards the end of the judgement the court said that “to satisfy the constitutionality of clause (5), we will have to read into Section 12(5) of the Act that the expression ‘knowledge and experience’ includes basic degree in that field and experience gained thereafter and secondly that legally qualified, trained and experienced persons would better administer justice to the people, particularly when they  are expected to undertake an adjudicatory process which involves  critical legal questions and niceties of law.”

The court ordered that all the information commissions should work in benches of two members each. One of them being a ‘judicial member’ while the other being an ‘expert member’.

Good or Bad

Even though it’s a clear case of judicial overreach and transgression into executive privilege, criticism isn’t the only reaction this judgment has attracted. No doubt the judgment is full of blunders but still a significant number of RTI activist have welcomed the judgment. WHY?

The appointment of commissioners is done by a three member panel, one leader of opposition and the other two belonging to the government. The central government has shown some sense and appointed reasonable people with some experience in RTI as commissioner but various state governments have used these appointments only to reward retired bureaucrats for their loyalty. Most of the time these bureaucrats have not forgotten their original training of denying as much information as possible and continued to cater to their political masters.

Commissioners without any legal background or training have also committed their own share of gaffes. There are number of orders of ICs which were struck down by High Courts for not following basic principles of natural justice like giving third party notice.

There is a feeling that appointment of judicially experienced people would make the process more streamlined and less prone to being challenged on minor legalities. Till now the commissions have been working more as grievance redressal centres and less as quasi-judicial bodies. Presence of judges in every proceeding may lead to development of a trend of putting the onus of giving information on the PIOs and not force the common citizen to fight for it.

If the Supreme Court sticks to its stand in the review petition and the government is forced the bring in the amendments, it may lead to some good but all of it would be based on flawed legal reasoning. If “ambiguity or impracticality” is to be the basis for judicial pronouncements for amendment of law, quite a few laws of this country shall require amendments. Further, whether laws can be amended based on vague terms like “in consonance with the constitutional mandates” requires some serious thought.

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Originally posted on Kafila:

On 16 December, 2012, a 23-year old woman and her friend hailed a bus at a crossing in South Delhi. In the bus, they were both brutally attacked by a group of men who claimed to be out on a ‘joy-ride’. The woman was gang raped and the man beaten up; after several hours, they were both stripped and dumped on the road. While the young woman is still in hospital, bravely battling for her life, her friend has been discharged and is helping identify the men responsible for the heinous crime.

We, the undersigned, women’s, students’ and progressive groups and concerned citizens from around the country, are outraged at this incident and, in very strong terms, condemn her gang rape and the physical and sexual assault.

As our protests spill over to the streets all across the country, our demands for justice are strengthened by knowing that there are…

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Gun Laws

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WA Militia

WA Militia (Photo credit: Washington National Guard *Official Site)

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United States witnessed another shootout, this time 27 people lost their lives, 20 of them young children. The perpetrator had access to two handguns and one semi-automatic weapon. America has witnessed 31 such incidents of mass shootings from 1999 till today and still America has the loosest gun laws in the world. America has 95 guns per 100 humans.

American Gun Laws

In 1791, with rest of the Bill of rights, the Second Amendment to the American Constitution was also adopted. The Second Amendment read as “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This constitutional guarantee was provided just after the American War of Independence and at that time the state Militia played a very important role in the war. After the war the right to raise armies was given only to the federal government. The anti-federalist were extremely critical of this structure and as one of the safeguards, they pushed for the second amendment and got it passed by the senate.

firearm-OECD-UN-data3

The conditions which prevailed at that time, don’t prevail today. Representatives from various states asked for the second amendment for various reasons like deterring a tyrannical government – no matter how many American civilians have arms today, no one can fight against the state machinery, repelling invasion – the federal army is doing that job and today countries around the world need protection from American invasion and not other way around, suppressing insurrection – again the state can take care of that and we don’t need armed civilians and other similar reasons like law enforcement. It’s pure common sense that even though these reasons may have been valid at the time of the amendment but today they are no more than a joke.

The US Supreme court has also failed to control this mayhem in any possible way. The Supreme Court took a positive step in United States v. Miller, in that case the court held that the purpose of the amendment was to ensure the effectiveness of the militia and not protect the right of each individual but this was overturned in 2008 in the case of District of Columbia v. Heller. In this case the 5-4 majority held that the amendment gives every citizen the right to posses any arm and in the process, the court struck down the Washington law restricting the use of Shotguns.

The domestic gun market in America is worth more than 3 billion dollar per annum and the NRA (National Rifles Association) is the oldest and the most influential lobbying group in America. In 2008 presidential elections, NRA spent 10 million dollars. Till date 8 presidents of America have been members of NRA (no points for guessing Bush was the last one). Before the recently concluded elections, NRA out-rightly rejected an offer from president Obama to discuss gun-laws. NRA even used president Obama to promote gun sales, they ran a campaign claiming that the president may bring-in laws to make gun access more difficult and you should buy when you can. Though Obama brought in no new laws but gun sales have seen a jump of 48% from 2008 onwards.

Guns don’t always kill people, it seems, but they certainly play a role.

The only reason why, it’s still so easy to buy weapons in America is because, the people who sell these arms have more than enough money to influence the law makers sitting in Washington. It’s time when President Obama needs to do something more than crying on national television. Obama doesn’t have to fight another election, he is personally against the current gun laws and therefore, he is in the best possible position to take some tough steps and bring this mayhem to an end.

Gun laws in Japan

In contrast to America’s 12,000 gun related homicides (60% of all murders are committed using fire-arms), Japan witnesses as less as 11 gun related homicides per year (generally more than 11 people are killed in one shootout in America). The reason for this is the strikingly opposite policy adopted by both the countries. In Japan the process of getting a fire arm licence is extremely rigorous.

A prospective gun owner must first attend classes and pass a written test. Shooting range classes and a shooting test follow. After the safety exam, the applicant takes a simple ‘mental test’ at a local hospital, to ensure that the applicant is not suffering from a readily detectable mental illness. The applicant then produces for the police a medical certificate attesting that he or she is mentally healthy and not addicted to drugs. The police investigate the applicant’s background and relatives, ensuring that both are crime free. Membership in ‘aggressive’ political or activist groups disqualifies an applicant. The police have unlimited discretion to deny licenses to any person for whom ‘there is reasonable cause to suspect may be dangerous to other persons’ lives or properties or to the public peace’. These strict rules result in an extremely safe environment, Tokyo has as less than 40 muggings per million inhabitants compared to 11,000 of New York.

America and Japan are extremely opposite cultures and it would be naive to expect Americans to accept similar levels of police control as Japanese but America can learn at least something from the rigorous gun control of Japan and the resulting low rate of violence.

Gun laws in Switzerland

People who argue in favour of slack gun laws, instead of learning from Japanese example, prefer the Swiss one. Switzerland also has a very high density of fire arms (4.5 million for a population 7.9 million, less than US and Yemen) but Swiss also witness pretty less gun related homicides (0.3 per 100,000 compared to 4.3 per 100,000 of America). The high number of guns in Switzerland is not because of the lax laws or the gun friendly population but because the gun ownership is linked with the military. Switzerland has a very small standing army and the militiamen are expected to fight in case the country is under invasion. Therefore, majority of guns in the country are military issued and every Swiss male in the age group of 18-30 undergo a three-month military training and many refresher courses.

Switzerland also has extremely different conditions when compared to America, it has a population less than that of New York and very high per capita income and rates of literacy. It’s also important to note that people in Switzerland are also demanding more rigorous gun control laws.

Gun control is not the only cause of the problem America is facing today but having tougher gun laws is the easiest and most effective step to control the problem.

 

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Originally posted on Kafila:

Sri Pranab Mukherjee
President of India
Rashtrapati Bhavan
New Delhi – 110 004.
India

12 December 2012

Subject: Open letter regarding the resumption of executions in India

Dear President,

I am writing on behalf of Amnesty International regarding the recent resumption of executions in India after eight years, to urge the Indian authorities to immediately establish a moratorium on executions with a view to abolishing the death penalty.

View original 1,067 more words

Offloading by Airlines

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Turkish Airlines 737-800 TC-JFT

Turkish Airlines 737-800 TC-JFT (Photo credit: caribb)

The Airline Industry has for long been a dubious one, with the innumerable allegations of cartel formation against it and claims that no proper method for pricing of air tickets exists. Another thing that some of us have come across before, but I only thought about properly now, is overbooking. Overbooking is the practice (an internationally recognized one) of selling more airline tickets than the number of seats in an aeroplane, in anticipation of certain people either skipping or missing the flight. It is a technique by which airlines manage to fly fuller than they otherwise would have been able too. If more passengers than the number of seats do turn up, then in some cases, some passengers are upgraded to a better class in the aeroplane. In most cases however, passengers, sometimes volunteers, other times randomly chosen people, are Offloaded and given seats in other flights. International custom also dictates the paying of certain monetary compensation to the person offloaded along with arranging for his or her accommodation for the time between the flights. It seems the Airlines make more money this way, even after the compensations, than if they actually booked only the number of seats available and flew (relatively) emptier.[1]

The Consumer courts in India have also recognized the practice and have been extremely unsympathetic to the problems caused to offloaded passengers. Courts generally tend to favour the Airlines and several judgments have highlighted the argument that if reaching the destination is of paramount importance, then the person should have booked an earlier flight and not the one that would make it possible for him to reach just in time.[2] I think this is extremely unreasonable. Another thing commonly noticed is that while Airlines cling on to the contention that overbooking is a recognized practice, they do not act within time to fulfill the duties, like providing compensation, that come with the practice. The courts thankfully have also taken note of this fact and directed the airlines to pay compensation without delay in the future.[3]

In my opinion it is not fair to have a man reach the airport only to be told that he cannot get into the flight because the airline has its own economic interest in mind. It is such interest from which our state should protect us. The government should maybe pass a law regarding the same and although I hope the practice of overbooking is outlawed, at least the compensation should be reasonably high (high enough to act as a deterrent for the Airlines) and flexible enough to adequately compensate any person who has suffered any kind of loss because he was offloaded. Something should also be done to make sure such compensation is being paid to all offloaded passengers and sufficient punishment must be laid down for non-payment. Just because something is an internationally recognized practice, it is not beyond need for justification or review. As of now we would do well to remember that the current legal position is that if you claim that the work (that you are hoping to accomplish after reaching your destination) is important then you should also keep in mind the practice of overbooking and make prior arrangements accordingly.

(There have also been allegations that some Airlines deliberately perform check-in procedures slowly so that some passengers can be said to have been late, with the Airlines thus being able to justify them being offloaded. Don’t know how true these are, although there was a CNN-IBN report that claimed Deccan Airways indulged in such practices.[4] If you are an Air passenger in today’s time, beware.)

Constitutional Tort Law

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English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

 

 

 

 

In this piece the author discusses how the opening of writ jurisdiction as a source for monetary compensation in cases of Human Rights infringements has led some very arbitrary amounts being awarded as compensation, especially in the absence of any set rules or jurisprudence. The problem would be discussed through some specific case laws.

 

The victims of any wrong generally seek compensation under the law of torts at the local civil courts. This process is tedious and insufficient at most times but the damages awarded under torts are well defined and categorized under the heads of Compensatory, Nominal and Punitive. The least amount courts provide is the direct financial loss suffered by the victim in terms of medical cost or the cost to repair the property or any such similar loss.

 

In the past few decades, India witnessed the birth of a new mechanism for damages in specific cases of Human Rights infringement. The rise of this new jurisprudence of compensation with respect to Human Rights is welcome step from the constitutional courts but the various amounts awarded by the highest court has started a new debate.

 

The Article 32 (2) provides the Supreme Court with power to issue directions, orders or writs for enforcement of any fundamental right. All the cases which will be discussed below are habeaus corpus petitions.

 

It all began with the landmark judgment in the case of Rudul Shah vs State of Bihar[1] (Rudul Shah was kept in illegal detention for over 14 years after his acquittal in a murder case). In this case the Supreme Court decided to grant monetary compensation for violation of right to personal liberty. This was the first time when someone was awarded monetary compensation under the writ jurisdiction provided in Article 32 of the constitution. In this case the court decided to award a compensation of ₹ 35,000. The Court awarded this compensation as an interim relief to poor Rudul Shah and the court also said that this order won’t preclude Rudul Shah from bringing a suit for recovery of adequate damages from the State and the officers responsible. The honourable court gave no reasoning for arriving at the specific amount as interim relief.

 

This new remedy was used in the  case of Sebastian M. Hongray vs Union Of India[2] (C. Daniel and C. Paul, were last seen alive at an army camp. The court held that this was a case of custodial death and the state is responsible for their mysterious disappearance). In this case the court ordered the State to pay ₹ 1 lakh as exemplary cost, this was given to both the widows as compensation. In this case again, the court arrived at the amount in a completely arbitrary manner without any discussion and even gave it the colour of exemplary costs.

 

Next is the case of Smt. Nilabati Behera Alias Lalit Behera V. State Of Orissa & Ors[3]. In this case of custodial death from Orissa, the Supreme Court tried to display some reasoning in arriving at the amount of compensation. The Court said that the “The deceased was aged about 22 years and had a monthly income between ₹ 1200 to ₹ 1500. A total amount of ₹ 1,50,000 would be appropriate as compensation”. The mention of the income and age gives a hint that the amount arrived at, may be based on the principles set out in private torts law but the amount is again arbitrary and without any reasoning or logic.

 

In the case of People’s Union for Civil Liberties v. Union of India [4], The police picked 5 persons from the village and later shot dead two of them. Though the circumstances were quite similar to the previous two cases and this judgment came 17 years after the Sebastian Hongray judgment, the Supreme Court found it fit to provide ₹ 1 lakh in compensation. It’s impossible to comprehend how even after 17 years, the Supreme Court thinks that the same amount would be sufficient for compensating a custodial death.

 

One year later the same court in the case of Malkiat Singh v. State of U.P.[5], awarded ₹ 5 lakh as compensation to the family of each victim. This case also had similar facts as previous case, 10 sikh youths were killed in a fake encounter by UP police. Again the Supreme Court gave no reasoning as to how it arrived at the amount of ₹ 5 lakhs and why a year back ₹ 1 lakh was the sufficient amount for a similar case and now suddenly the same court thinks that ₹ 5 lakh should be sufficient. In the same year the in the case of Amitadyuti Kumar v. State of W.B.[6] the Supreme Court gave only ₹ 70,000 as compensation to the wife for custodial death of husband.

 

In 2003, the Supreme Court again went back to the amount it awarded 20 years back in the Hongray case. In the case Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble[7], the victim died because of the torture inflicted on him while in police custody. It’s beyond comprehension how the Supreme Court found the amount of ₹ 1 lakh as compensation for this heinous violation of Human Rights.

 

In the past three four years the compensation awarded in such cases has been in the range of 1 to 10 lakh rupees but again these amounts are highly arbitrary and depend on the whims of the judges.[8] The Supreme Court touched new highs of arbitrariness when in the famous case of Sohrabuddin Sheikh fake encounter the court left it to the whims of Gujarat government to decide the amount of compensation even though in all similar cases in past the same court has awarded compensation.[9]

 

The Honourable Delhi High Court in the tragic case of Uphaar Cinema fire tried use the private law technique to decide the amount of compensation under public law. High Court framed out the average income of the deceased persons, and thereafter multiplied it with the digit 15 in order to conclude the final amount to be awarded to each of the claimants. In this matter, High Court awarded Rs. 18 lakhs to the legal heirs of those deceased aged 20 years or more, and Rs. 15 lakhs to the legal heirs of those deceased persons aged 20 years or less.[10] The Supreme Court out rightly rejected the use of this method to award compensation under a Public Law remedy (Article 32 and 226 of the Constitution). Supreme Court, in the case, was of the opinion that considerable amount of compensation by means of Public Law Remedy is not safe and this turned out to be the reason for the reduction of compensation by the Supreme Court but the Court at least laid down the factors which should be borne in mind while arriving at the amount of compensation. These factors were

 

The first is the age of the deceased, the second is the income of the deceased and the third is number of dependants (to determine the percentage of deduction for personal expenses).

 

The sad truth is that the court has repeatedly ignored these factors and has arrived at extremely different amounts in cases with similar circumstances.

 

It’s time for the highest court in this country to lay down some definite guidelines for compensation under constitutional torts law for itself and all the High Courts to follow. Justice Radhakrishnan himself recommended that a specific legislation is urgently required so as to address the compensation claim under Public Law.

 


[1] 1983 AIR 1086.

[2] 1984 SCC (3) 82.

[3] (1993) 2 SCC 746

[4] (1997) 3 SCC 433

[5] (1998) 9 SCC 351

[6] (2000) 9 SCC 404

[7] (2003) 7 SCC 749

[8] Deputy Commissioner, Dharwad District, Dharwad v. Shivakka (2), (2011) 12 SCC 419, R.P. Tyagi v. State (Government of NCT of Delhi), (2009) 17 SCC 445, Deputy Commissioner, Dharwad District, Dharwad v. Shivakka (2), (2011) 12 SCC 419 , Prithipal Singh v. State of Punjab, (2012) 1 SCC 10.

 

14 states ban gutkha. Are they right and should the other states follow?

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Gutka pouches

Gutka pouches (Photo credit: Wikipedia)

The Supreme Court in one of its judgements held that ‘gutkha’ or pan masala constitute food. This decision has been followed in several High Court cases also.[i] They also fall under the definition of ‘food’ under the Food Safety and Standards Act (FSSA). Gutkha is hence governed by the Food Safety and Standards Regulations brought out under this Act. According to rule 2.3.4 nicotine and tobacco cannot be added to food (and if they are then such food can be and should be banned) and if Gutkha is food under this Act then clearly the government must ban gutkha and other such products. 14 states already have.

The main argument against such bans is that Gutkha is governed by the Cigarettes and other Tobacco Products Act (COTPA) and can hence not be banned under the FSSA. The COTPA regulates manufacture of such products and being a specific legislation directed at tobacco products should prevail over any other legislation. This argument falls as firstly, there is no conflict between the two Acts because the COTPA nowhere expressly states that products under the Act cannot be banned and secondly because the FSSA itself is a specific legislation and even if there is a conflict between the two specific legislations, the FSSA, having been passed later, will prevail. The orders of bans, in the states where such orders have been passed have been challenged in courts and the bans have been upheld using the same reasoning.

Another issue that has sprung up is that while gutkha and related products, which have a tobacco content of 7-8% are being banned, nothing is being done to prevent usage of cigarettes and other tobacco products that are ‘smoked’.[iii] While this is true, we must only look at the bans individually and not compare them to other products. The bans have been brought about because gutkha is a food product and adding tobacco to food products is considered unsafe under the new Act. Cigarettes do not fall under the definition of food under the Act and the decision on their safety and regulation must be left to the Parliament.

It is hence clear that the FSSA prohibits the sale of gutkha and other ‘smokeless’ tobacco products. The Act also directs the state government to comply with the regulations passed. In this light, all the remaining states need to pass orders banning gutkha and paan masala as soon as possible.

Gutkha makes have also developed a new strategy to sell gutkha wherein the chewing tobacco and the ‘masala are sold separately, making the sale legal and giving the customer gutkha when mixed.[iv] If the ban has to be effectively implemented, chewing gutkha must also be brought under the ambit of the Act and its sale must be regulated or banned.

Why the Age of Consent was increased.

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English: This map displays the legal age of co...

English: This map displays the legal age of consent for heterosexual sex in various countries.   – puberty   – less than 12   – 12   – 13   – 14   – 15   – 16   – 17   – 18   – 19   – 20   – 21+   – varies by state/province/region/territory   – must be married   – no law   – no data available (Photo credit: Wikipedia)

In response to http://laworlogic.wordpress.com/2012/10/06/the-age-of-consent/

In a 2007 study conducted by Ministry of Women and Child development, it was found that more than 53 % of children in India faced one or more forms of sexual abuse. In 50 %of these cases the abuser was the person whom the child trusted.

In 2009 there were approximately 21000 reported cases of rapes in India, out of these nearly 14 % (i.e. 3000) were committed against the girls between the age of 14 and 18.

Few months back, president of India gave her assent to the Protection of Children from Sexual Offences Act, 2011. The Act was long overdue as the  Indian Penal Code drafted in 1860 had an extremely narrow definition of rape and other sexual offences leaving many forms of sexual crimes outside the purview of criminal prosecution. The bill was also needed as the term ‘unnatural sex’ in the IPC put both sexual abuse of boys (paedophilia) and sex between consenting adults on the same level.  The Act is also important as it covers non-penetrative sexual abuse against girls and sexual crimes against boys which weren’t covered under the provisions of IPC or other Acts.

Though the bill was widely appreciated by the Civil Society for widening the ambit of protection offered to children against various kinds of sexual offences and also for bringing in new procedures like special courts and stipulated time frame for disposal of cases but the government faced a lot of flak for increasing the Age of Consent for consensual sex from 16 to 18 years.

Interestingly the age of consent in India has only increased for the past 150 years and has never gone down. In 1860, the age of consent was 10 years. In 1896 it was increased to 12 years after the rape of a 11 year old girl. During the Independence struggle, more information about adverse effect of young pregnancies led to the increase in this age  to 14 years. In 1949, this age was raised to 15 years and later to 16 years and now it is 18.

The government was forced to change the age because there are five crore children in the age band of 16 to 18 years of age. If the government decided to keep the consent option than these children would be denied a much required protection against the criminal minded adults. If sex with a 17 year old is not regarded as statutory rape then a Criminal would rape a child and then plead consent and shift the whole burden of proof on the minor to prove the absence of any express or implied consent. It would be nothing less than torture for a minor to face the defence counsel and answer questions regarding consent even after going through the trauma of rape.

The other contention raised by some people is about a girl aged 17 having consensual sex with her boyfriend aged 19 – Why the law needs to interfere in such cases? Now the people need to understand that the law is not going to interfere unless the girl walks into to police station and files a complaint of rape and even if it happens the case goes to a special court where the judge is specially sanitized to deal with these cases in best interest of both the parties.

The most fierce criticism government faced is due to the threat of misuse of the Act by disgruntled parents against boys who elope with their daughters. These kind of situations generally arise when a girl of high caste falls in love with a boy of lower caste or when a Hindu girl  runs away with a Muslim boy. The problem here is with the stratification in the society and the inherent biases against the  lower castes and minority religion and not with the law.

The purpose of the new Act and the consequent change is the Age of Consent is to deal with cases of sexual crime and stop the abuse of children on the hands of people who have the authority to take care of them. The purpose is not to provide a new weapon to unsatisfied parents and job-less khap panchayats. Hence, the law should not be criticized on the assumption that one section of the society may misuse its provisions.

Many people have also said that this change would put India in the same bracket with backward non-liberal countries like Uganda, Rwanda and Malaysia. Firstly, it is more important for us to protect our children against abuse than to worry about how liberal we look. Secondly, people argue that, children are influenced by western culture and are more prone to engage in sexual behaviour early in life. If children are influenced by western culture then this amendment is also influenced by US as 11 states in America which are considered most advanced and liberal including California and Florida have 18 years as age of consent and not 16.

There are few other grounds on which this change was defended by various people including population control and control on teen pregnancies and abortion but in  my opinion saving young victims from a hostile trial and giving them reasonable protection is a sufficient ground for the amendment.

The Age of Consent

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Until recently, sexual abuse of a child was not a separate crime in India and as an offense was included within the ambit of the rape and sexual abuse laws in the Indian Penal Code itself. This was a problem because, firstly, the provisions of the IPC are gender biased, while child sexual abuse was not and secondly because child sexual abuse is a grave offence and the punishments in the IPC, which were also meant for sexual abuse of an adult female, were just not adequate.

But we now have Protection of Children from Sexual Offences Act, 2012 that has changed all this. While effectively providing for laws against sexual abuse of children what the Act also does, intentionally or not, is it increases the age of sexual consent to 18 years. This means that consensual sexual activity between people younger than that is not allowed and according to the Act criminal. The age was 16 before the Act was passed.

The minimum legal age of consent around the world
age displayed for India is before amendment

The first problem with this is of course that 18 is a little too extreme. A person can be criminally prosecuted for his acts if he is older than 7 years of age, but cannot have sexual intercourse till the age of 18. If a young boy of 8 can be held liable for his acts, then a young man of 17 must be able to decide what is what isn’t right for him, sexually. In this age of increased foreign influence and exposure to the outside world, increasing the age of consent is a draconian and unnecessary act. Not only will it lead to an increase in secrecy about the already taboo topic of sex among teenagers, it will also result in a whole lot of fake cases and accusations (helped by the strict provisions of the Act).

The second problem is, extreme or not, why should the state decide when people indulge in sexual behavior? It is something extremely personal and outside the realm of criminal law if there is consent between the parties. Should the state decide if two 17 year olds can or cannot have sexual intercourse? A politician having an opinion in this regard is a different matter, the state condemning such acts is acceptable maybe, but criminalizing such conduct is unacceptable. The previous laws criminalized such conduct for people who were younger than 16 years of age and I can see no reason, let alone a study or an empirical research, which warrants this increase in the age of consent.

There is a suggestion that the said criminalization is only a byproduct of trying to provide for a stricter law against child sexual abuse. If this is true then there must be clarification, a notification or a directive indicating the same. Otherwise, whatever the intention, in effect, what is morally wrong for a certain section of the society has been made criminally wrong, without any justification, even as, and maybe because, an increasing number of people are becoming comfortable with the idea.

You can read a response at http://laworlogic.wordpress.com/2012/10/08/why-the-government-increased-the-age-of-consent/

 

Shifting boundaries of freedom on Internet

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De facto flag for the Anonymous group. Español...

De facto flag for the Anonymous group. Español: Bandera de facto del grupo Anonymous. Français : Principal drapeau/logo du groupe Anonymous (Photo credit: Wikipedia)

 

More than 70 people have died across 11 countries.[1] Four American including one senior diplomat killed in Libya and US warships are already on the coast of Libya.[2] Western Countries including US, UK and France are shutting down their embassies in Islamic Countries due to the threat of more retaliation to the video titled “Innocence of Muslims” uploaded on YouTube. 

 

YouTube refused a request from White House to block access to the video claiming that it would be infringement of freedom of expression.[3] Everyone agrees that websites like YouTube and Facebook have been of great use to people across the Arab world and they provided the much needed platform to suppressed voices during the Arab Spring but are they doing more harm than good in the name freedom of expression.

 

It all begin on the 11thanniversary of the terrorist attacks on the twin towers when armed men claiming to be protesting against the video attacked the US embassy in Benghazi and killed the US Ambassador. These people claimed that they were protesting against the trailer of the movie “Innocence of Muslims” uploaded on YouTube by a user named Sam Bacile in July 2012. After some investigation by US agencies it is clear the video was uploaded Nakoula Basseley Nakoula, who is a Coptic Christian immigrant from Egypt. Coptic Christians in Egypt have always been in conflict with the Muslim majority of the country and the purpose of the video appears to propagate hatred towards Muslims and also to provoke Muslims by showing Mohammad in bad light. Most of the actors and crew were duped into doing the film and none were aware of the complete picture and intention of the director.

 

The idealistic solution to the problem would be a more tolerant and open-minded international community which understands the ulterior motives behind the video and decides to ignore it, instead of protesting against a specific country but we are far away from reaching such state of awareness and it is quite easy for fundamental groups across the globe to provoke violent reaction to such content and then use them for  their own benefits. Therefore, there arises a need for some control over the internet and its content.

 

The Internet today is a globally spread network comprising of many voluntarily connected networks. There is no international body to govern the internet or lay down rules except Internet Corporation for Assigned Names and Numbers (ICANN)[4] which only deals with domain name and other stuff that is required to maintain the internet but not the content. The only control over the Internet the Sovereigns have is through their local legislations.

 

Countries across the world have widely conflicting approaches to regulating speeches they consider offensive or inflammatory. Countries like US have an extremely liberal approach towards the content on Internet. The First amendment to the US Constitution[5] prohibits any law impeding the freedom of speech and thus there aren’t any laws to regulate content on Internet except an array of laws dealing with piracy and copyright infringement. Whereas countries like India and Indonesia with populations belonging to diverse communities have enacted laws like the Information Technology Act, 2000 – which Indian Government used to block the particular video and has also used in past to remove content from Facebook and twitter. India can categorize the content as a threat to public order and curb it. This is where the problem arises, India has the sufficient resources (technical capabilities and Mutual Legal Assistance Treaty with USA[6]) to force big corporations like Google with their servers in US to comply with local laws or face a complete ban but what about countries like Libya, Egypt and even Pakistan in this case. Most of the countries which faced violent protest and suffered the most damage, don’t have legal process, technical capabilities and requisite agreements[7] in place to control content on Internet. Therefore, many countries have a valid reasons to ask for International Regulations to curb the misuse of the Internet to disturb the internal peace in more volatile regions of the world.

 

This rising voice for Internet Regulation acquires a lot more significance because of the timing of the event. The International Telecommunication Union (ITU), a Geneva-based U.N. specialized agency is organizing the World Conference On International Telecommunications, 2012 in December.[8] The conference is going to concentrate on treaty writing with respect to various issues relating to the Internet. ITU has 193 members and many influential players like India, China and Russia have already made it clear that they are going to push for more expansion of jurisdiction and legal authority of ITU.[9] With lack of any veto power in the hands of countries like US (the so-called protector of freedom on Internet) it is highly likely that many countries belonging to the Arab region may  argue that Google and Facebook are not competent to decide what’s safe and what is not and therefore back India and China in their demand for more regulation.

 

Thus, the Internet as we know it today may undergo a transition faster than most of us may anticipate and looking at the present scenario these changes may be a step towards more peaceful world .

 

The next post is a critique of this write-up by a different author.


[7] Pakistan’s request to YouTube to block the content was turned down due to the lack of MLAT between US and Pakistan. http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/columns/21-Sep-2012/innocence-of-muslims

 

 

 

In response to shifting boundaries of freedom on Internet

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It is interesting that the incidents concerning the film Innocence of Islam and the violence that followed, the arrest of cartoonist Assem Trivedi and the manifestations of the communal crisis in Assam have all occurred in such close proximity. They have also occurred after the uprisings in the Arab world, and before the World Conference on Telecommunications. The question of Internet censorship has received mixed response from various parts of the world with calls for both strict censorship and complete abolition of censorship.

The Internet has been actively and irregularly censored and regulated by the government of India ever since it has gained prominence in the country, and maybe even before that. The Indian government uses two different methods to regulate content it does not agree with. The first one is to ask the ISP to block content. The government “requests” the ISPs to block certain content and it is done. No questions asked.[1] The ISPs co-operate exceedingly with the government and the media has almost nothing to say about the haphazard censorship. The problem with this method is the easy access to ‘proxies’ and ‘anonymisers’, which make the blocked websites accessible. So the government also sends requests to the websites concerned to remove content that does not comply with the law in India. The websites also comply, with Google having blocked a whole many domains in India.[2] Why then does India or the Indian government desire more power to censor content on the Internet? The reason is that although Google did block many websites in India, it also refused to comply with certain requests where they thought the websites/videos did not violate the law in India. The intention of the government in hence clear: to be able to block anything and everything they want to get rid of, on a platform that many consider to be the only one that allows the true expression of ANYBODIES view.

India it is said, hopes to introduce rules for the regulation and censorship of Internet content at the World Conference of the ITU to be held in December.[3] The move is being backed by the likes of China and is said to provide a platform for the interaction of 2 states or of a state and a website to sort out whatever content issues one of them has with the other. It will provide countries with greater powers to regulate what the people in their country watch and what they do not. Any increase in the power of states in this regard is, in my opinion, unnecessary.

The Internet is a free society, a free community. What gives the government of a country the right to regulate and censor content on the Internet? What assurance of fairness and impartiality do we have? We live in a country where a cartoon website that satires the current state of the government was removed by a certain State Police.[4] We live in a country where the Chief Minister of a state accuses students of a college of being Naxalist agents because they questioned her policies[5] and jails other people who mocked her through cartoons. How can we expect such a state to act ‘in the interest of the people’ in censoring the Internet? Even in the international context, the Internet was widely used in the propagation and spread of the Arab Spring revolutions. Would this have been possible if the state could censor content on the Internet? Who defines hate and who decides what content ‘could’ incite violence? Can we, or should we, allow, by means of internet censorship, authority to governments of states to create a situation where they completely deny people the right to express themselves freely?

Considering the case of the movie Innocence of Muslims, the view that there would not have been violence and protest in the various countries, where violence occurred due to the insulting depiction of The Prophet in a video on YouTube, is false. The knowledge of the existence of the video is what caused the violence. There were protests in countries like Saudi Arabia also, which has one of the strictest censorship laws in the world. The problem that states had in this regard was not with respect to the spread of violence but with respect to the views portrayed in the video. Hence the claims that censorship will cease or even reduce such violence are miscued.

In my opinion the Internet is something that should be left alone. It is one medium where the opinion of an anonymous someone can be heard. It is also the one medium not corrupted by the governments of most nations yet. The Indian law regarding censorship is in itself ridiculous and way too stringent and should be reviewed. Internationally, States could use any mechanisms that they have to regulate content in their own country but any international treaty or conference that grants more power to nations is certainly not required.

 

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