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Tackling another pandemic: Domestic Violence
[This article is co-authored by Khushboo Jindal and Akshat Aggarwal] While the whole world is confined to their homes and facing the Covid-19 challenges with cases mushrooming every second, the lives of women have gotten disproportionately affected across different countries. The increasing number of cases of domestic violence, along with hashtags like #AntiDomesticViolenceDuringEpidemic gaining popularity, portrays the appalling situation some women are in, today. UN Women- Asia and the Pacific’s humanitarian and disaster risk advisor, Maria Holtsberg, said, “Crisis always exacerbates gender inequality” and the soaring cases of domestic abuse during the pandemic are the epitome of the same[i]. Amid the imposed lockdown, India has also witnessed a steep rise in the cases of domestic crimes against women. With the initiation of the lockdown 3.0 in India and opening up of liquor shops from May 4, 2020, the situation became worse with just a few hands to help the aggrieved women. The Delhi High Court also issued directions to put a check on the rising cases of domestic violence[ii]. Between March 23 and April 17, the National Commission of Women (NCW) received 237 new complaints related to domestic violence. This raises severe concerns regarding the safety of women in these difficult times. The Chairperson of NCW (Indian commission), Rekha Sharma, said, “the cases may be high but will go unreported as the victim along with the abuser is confined in her home during this lockdown period”. Generally, most women send their complaints to the NCW by post, as they are unaware of using emails as an alternative option. They lack the adequate capacity and support to come out of their houses and seek help from their friends, relatives, or acquaintances. The pandemic poses certain logistics problems for most women because of which reaching out to the police has become a challenge for them. The lack of adequate resources, along with the continuous struggle for security, makes a certain percentage of women vulnerable to insufficient aid. Covid-19 has hit the poor strata of society badly. Especially, the rural and migrant women- who depend up on agricultural and construction works to make ends meet. These factors (too) have contributed heavily to the exponential rise in the cases of domestic violence and have also added to the plight of women amidst the ongoing crisis. Patriarchal Power Dynamical Structure The Indian society has been patriarchal in structure from time immemorial. Even with the onset of modernization and industrialization, the subjugation of women still exists in some parts of our society. Atrocities against women have increased. Domestic abuse stems from the dominant position held by men who exert physical force over the bodies of women. They take pride in making themselves feel superior to women. Women are subjected to constant domestic violence to suppress their objections. They are presumed to be child-bearing machines, and are confined to household chores only. They are treated as ‘things’ meant for the pleasure of men. The culture of marital rape can’t be ignored either. Men violate the bodily sovereignty of women without their consent. The thin line between heterosexual activity and rape is often defied. Inadequate Legal Infrastructure Women have the right to resort to legal alternatives to protect their rights, but the Indian legal mechanism developed over decades, cannot stand the test of time. The Protection of Women from Domestic Violence Act, 2005, enacted by the Parliament provides definition of domestic violence for the first time in India. It states that actual abuse or threat of abuse whether sexual, physical, or verbal is to be termed as domestic violence under the Act. It also covers the harassment, through unlawful dowry demands, made by the in-laws and the relatives of the husband. The various anomalies in the Act can’t be ignored and require comprehensive amendments for safeguarding the interests of women in the society. The Act only serves as a civil law. Criminal proceedings can be initiated against the accused only if he violates any Protection Order under the Act. The Act also fails to serve its designated purpose due to the apathetic attitude of the Indian government regarding its effective implementation. The Protection Officers (POs), who form the linchpin of the Act, are not yet appointed in every district as mentioned in the Act[iii]. Section 498A of Indian Penal Code (IPC), 1860, was a major step towards criminalizing the cruelty against women by their husbands, in-laws, and the relatives[iv]. However, the scope of the IPC is limited as it considers only severe cases of violence and abuse. It fails to take into account the daily tortures faced by the women within the four walls of their matrimonial homes. The courts, while deciding cases of domestic abuse, fail to consider the quotidian mental and emotional agony faced by women. The lockdown had provided the abusive husbands with an opportunity to vent out their anger on their wives. The women can’t even approach the police or relevant authorities for justice due to pressure from their families and society. Even if they reach out to the courts, the chances of accused getting punished are minimal as the conviction rate is less than 10%. In these difficult times, the courts have also agreed to employ video conferencing methods for urgent matters. They need to be more vigilant and sensitive and should give priority to domestic abuse cases so that the victim can be protected. Opening Of Liquor Shops - Aggravating Domestic Violence Issues The problems for women aggravated due to the opening up of liquor shops around the country. According to the National Family Health Data presented by the Government, there is a direct link between alcohol consumption and violence against women. It leads to the escalation of domestic violence cases as people are already facing financial difficulties and are deeply stressed due to job loss, food security, and health emergency issues. The frustration, along with consumption of intoxicants, adds fuel to the current state of crimes against women[v]. Rather than generating revenue for the government, the situation had exasperating effects on the lives of the women. Ameliorating Measures The hazy vision and inefficient planning during the pandemic have adversely affected the lives of women who were already vulnerable to the whims and fantasies of their husbands. It is undeniable that immediate measures need to be enforced to protect women’s rights with effective healthcare system reaching out in every part of the country to safeguard them against domestic abuses. The National Commission of Women (NCW) has introduced WhatsApp helpline number 7217735372 to contact state commissions or the designed authorities in times of violent attacks faced by the women[vi]. According to a study by the International Centre for Research on Women, the women fear resorting to the police at the basic level because they might have to go through the trauma of character assassination. Generally, the police do not take its claims seriously and advise them to solve their family issues through compromises. ‘All-Women Police stations’ have been set up all across the country but they are mostly understaffed and are plagued with inefficient resources. Specific women forces need to take the charge and help reaching out to the distressed women. India is not the only country facing this severe issue. Many developed countries like China and Tunisia face perils of domestic abuses. The former reported an increased number of domestic violence cases during the pandemic while the latter showed a fivefold increase in numbers[vii]. France has also reported 36% rise in cases related to domestic violence and has provided for hotel rooms for the survivors to stay safe during the pandemic. Countries like Spain have come up with a unique idea where women claiming “Mask 19” are identified as the victims of domestic abuse. The relevant pharmacists contact the assigned authorities if the women find themselves unable to report it[viii]. India can learn these methods and execute them actively for securing the interests of the aggrieved women. Conclusion Raising consciousness and spreading legal awareness have been the foremost steps to eradicate the social evil, but relevant laws need to be constructively amended to stand the test of time. It is the need of the hour, and the dowry laws need to be strictly implemented so that no women are subjected to bride burning, dowry death, or domestic abuses at the cost of protecting the illusionary reputation of her in-laws. India needs a sharp transformation from being a patriarchal-based society to a gender-equal society where women are treated as an essential part of society. Their rights should be upheld to eliminate the increasing domestic violence cases. References: [i] Lara Owen, “Coronavirus: Five ways virus upheaval is hitting women in Asia”, March 8th, 2020.
[ii]“Delhi High Court issues directions to check domestic violence during Covid-19 lockdown”, The Leaflet, May 4th, 2020.
[iii] Puja Awasthi, “A law to help women, but who is enforcing it?”, Available here.
[iv] “Section 498A I.P.C.- Its Use & Misuse”, Legally India, legallyindia.com/views/entry/section-498a-of-ipc-its-use-misuse-html
[v] “Opening liquor shops will increase crimes against women”, Pune Mirror, 4th May, 2020. Read more here.
[vi] “NCW launches WhatsApp number to report domestic violence during COVID-19 lockdown” The Economic Times, April 10, 2020.
[vii] Amanda Taub, “A New Covid-19 Crisis: Domestic Abuse Rises Worldwide”, The New York Times, April 6th, 2020.
Whether Adult Unmarried Daughters are Entitled to Maintenance U/S. 125 CrPC.
[The article is authored by Amrin Aslam Khan, Advocate based out of Mumbai.] Judiciary in India has time and again come with the Judgments which although do not literally interpret the provisions of a law but are successful in achieving the objectives of that law. One such example is the purposive interpretation of Section 125 of CrPC[i] which provides for Order for Maintenance of Wife, Children and Parents[ii]. This section primarily focuses on giving economic protection to wife, children and parents who are not capable to sustain themselves and are being neglected and refused to be given maintenance. A thorough reading of this provision clarifies that as far as children are concerned, they must be either minor; or physically or mentally incapable to maintain themselves in order to attract the benefits of this provision. Strict interpretation of this provision excludes adult unmarried daughters from the scope of this provision. However, most of the girls in India even after coming at the age of majority are not able to maintain themselves. There are a number of reasons behind this such as low literacy rate, societal stereotypes, employment inequalities and last but not the least growing rate of crimes against women. Further, there are a number of cases where daughters are being physically and mentally harassed and tortured by their own fathers. This grave situation has raised a question before the Judiciary, “whether unmarried daughters who have attained the age of majority but are not capable to maintain themselves are also entitled to get maintenance under section 125 CrPC?” This Article aims to throw some light on how Judiciary has answered this question through purposive interpretation of Section 125 CrPC. Purpose of Section 125 CrPC: The people given protection under this section include wife; minor children whether legitimate or illegitimate including minor married daughter in cases where husband is not economically providing for her; children who have attained the age of majority but due to mental or physical incapability or injury are unable to maintain themselves; and parents. Strict interpretation of this section excludes the children who are physically and mentally sound and who have attained the age of majority that is 18 years as per Indian Majority Act, 1875. Hence, Adult unmarried daughters will be considered to be excluded as per strict interpretation. However, excluding adult unmarried daughters from scope of this section is against the purpose of this Section. Supreme Court has explained its scope and purpose in a number of cases. In Dwarika Prasad Satpathy v. BidyutPrava Dixit[iii], it was observed that this provision is a measure of social justice extended to protect women and children; the object is to prevent vagrancy and destitution. Similarly, in Ramesh Chandra Kaushal v. VeenaKaushal& Ors.[iv], it was held that, “Section 125 CrPC is a measure for social justice and is specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39A of the Constitution of India. It is meant to achieve a social purpose.” Hence, the purpose of this section is to prevent women and children from destitution and homelessness and to provide social justice to weaker sections of society. As stated before, many unmarried daughters are dependent on their fathers. Not giving legal protection to them will deprive them of food, clothes and home. Even after becoming major, they are indeed a part of the weaker section of our society who needs protection under Article 15(3) of the Constitution of India. Exclusion of them will deprive them of the benefits which the Constitution and the legislation want to provide them. Whether adult unmarried daughters of Muslim Parents are entitled to maintenance under section 125 CrPC? This question was answered in affirmative by the Supreme Court in Noor Saba Khatoon v. Mohammed Quasim[v]. Supreme Court observed that both statutory provisions as well as Personal Law allow Muslim daughters to get maintenance till they get married even after attaining majority. Hon’ble Court took aid of Muslim Personal Law. It is laid down in Muslim Personal Law that daughters are entitled to maintenance from their father till they get married and if they are divorced or widow then till they get remarried. Hon’ble Court quoted excerpt from Prof. TahirMahmood’s book "Statute-Law relating to Muslims in India"[vi]. It reads, “By Muslim law maintenance (nafaqa) is a birth right of children and an absolute liability of the father. Daughters are entitled to maintenance till they get married if they are bakira (maiden), or till they get remarried if they are thaviba (divorce/widow). Sons are entitled to till they attain bulugh if they are normal; and as long as necessary if they are handicapped or indigent. Providing maintenance to daughters is a great religious virtue.” Although Section 125 CrPC literally excludes the daughters who have attained majority from getting maintenance, Court held that Muslim daughters are entitled to maintenance till they get married. In this case, Judiciary instead of strictly interpreting section 125 CrPC word by word, tried to interpret it with the help of Muslim Personal Law. The intention was indeed to achieve the purpose of the said section. Whether adult unmarried daughters of Hindu Parents are entitled to maintenance under section 125 CrPC? In cases of Hindu Unmarried Daughters, Judiciary has interpreted section 125 CrPC in the light of The Hindu Adoption and Maintenance Act, 1956. Section 20 (3)[vii] of this Act provides that it is the moral and legal duty of a father to maintain his daughter till she gets married. Therefore, irrespective of the fact that Section 125 CrPC only provides protection to minor children or children who are physically or mentally incapable, Hindu unmarried daughters who have attained majority shall still get maintenance as per section 20(3) of The Hindu Adoption and Maintenance Act, 1956. Even when application is only filed under section 125CrPC and not under Section 20(3) of The Hindu Adoption and Maintenance Act, 1956, then also Judiciary has allowed maintenance in order to avoid multiplicity of judicial proceedings. In T. Vimala v. S. Ramakrishnan[viii] it was observed that, “No doubt, Section 125 Cr.P.C. is not happily worded, since it has prescribed certain riders for a daughter or son who has attained majority to claim maintenance from their father. They must establish that they are under physical disability or they are suffering out of injury. There may be cases, where a daughter or a son, even after having attained majority, may not have sufficient financial capacity to maintain themselves and they continue to need the support of their father. This is a reality of the situation. But, the Court cannot simply put the blame on the draftsman. Court must interpret the law. It should advance the cause of justice. That will be March of law.” Hence, the Hon’ble Court in said Judgment took aid of Section 20(3) of The Hindu Adoption and Maintenance Act, 1956 and Supreme Court’s decision in JagdishJugtawat v. ManjuLata[ix] and held that daughters are entitled to maintenance even after attaining age of majority. Similar decision was made by Bombay High Court in Agnes Lily Irudaya v. IrudayaKaniArasan[x]. Not Allowing Maintenance is also a Mental Injury: As per Section 125(1)(c) of CrPC, adult Children with any physical or mental abnormality or injury shall be given maintenance. Madras High Court in R. KirubaKanmani v. L. Rajan[xi]while interpreting the word mental injuryobserved that not allowing maintenance to adult unmarried daughter also amounts to mental injury. It held that, “mental injury is nothing but malice in law which can be gathered on the basis of violation of a legal right to claim maintenance vested under any law for the time being in force including Section 125 of CrPC. If the right to claim maintenance of the daughter is infringed, definitely it can be called as a injury which can very well be fit into the definition of mental injury.” Conclusion: To conclude we can say that purposive interpretation of section 125 CrPC is helping to provide social justice to unmarried daughters who would have been neglected and lost in its literal and strict interpretation. It is indeed due to the march of Judiciary and its pro-active role that adult unmarried daughters are held to be entitled to get maintenance. Certainly, it should not be ignored that unmarried daughters are one of the weakest parts of our society. They are facing harassment and they are forced to remain silent due to their economic, social and emotional dependency. Strict interpretations of laws and unfriendly legal procedure will further discourage them from asking for any legal remedy. They need legal protection on time. Justice delayed can turn the entire course of their lives. Hence, provision for maintenance which was included in Criminal Law for providing quick remedy should be applied in a manner that the victim get quick remedy and this provision should be interpreted in a manner that it progresses with the needs of society. Certainly, “All law must progress or it must perish in the esteem of man.” References: [i]Code of Criminal Procedure [ii] Code of Criminal Procedure. 125(1)
Section 125 (1) of Code of Criminal Procedure reads as follows:
125. Order for maintenance of wives, children and parents:
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
[iii] Dwarika Prasad Satpathy v. BidyutPrava Dixit  AIR (SC), p.3348.
[iv] Ramesh Chandra Kaushal v. Veena Kaushal & Ors.  AIR (SC), p.1807.
[v] Noor Saba Khatoon vs. Mohammed Quasim  SCC 6 p.323.
[vi]Mahmood, T., 1995, Statute-Law relating to Muslims in India.
[vii]The Hindu Adoption and Maintenance Act, 1956. 20.
“20. Maintenance of children and aged parents.—
(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. Explanation.—In this section “parent” includes a childless step-mother.”
[viii] T. Vimala v. S. Ramakrishnan  SCC Online Mad., p.12324
[ix] Jagdish Jugtawat v. Manju Lata  SCC 5, p.422.
[x] Agnes Lily Irudaya v. Irudaya Kani Arasan  SCC Online Bom., p.617.
[xi]R. KirubaKanmani v. L. Rajan (Cri.O.P.No.15336 of 2019, Madras High Court) ©Image Courtesy: SCC OnLine Blog (Here)
The Fault Lines in Aviation
[This article is authored by Mili Budhiraja, Faculty of Law, University of Delhi] Introduction "All I could see was fire. I had to jump to get to safety."  This is how Muhammad Zubair survived the plane crash incident In Karachi which claimed the lives of 98 people. On 22nd May, the Pakistan International Airlines (PIA) passenger plane crashed into a residential area. One month after the crash, after a detailed probing, the investigating agencies involved came to the conclusion that the crash was due to human error . It was found that the pilots ignored automated warnings and directions from air traffic controllers. This is serious negligence on the part of the pilots to commit. The Pakistan Aviation Minister also brought to notice the alarming statistic about Pakistani Aviation, wherein approximately 40% of the pilots use fake licenses. Through this piece, the author seeks to bring to light the investigating mechanisms in probing an aircraft accident and the need for stricter regulations in the aviation sector. The Law Concerning Aircraft Accidents An ‘Aircraft Accident’ is defined under Annex 13 of International Civil Aviation Organization Convention (Chicago Convention)  as an occurrence associated with the operation of an aircraft in which a person is fatally injured, or in which an aircraft sustains damage that adversely affects the structural strength of the aircraft. As per the regulations of the ICAO, there can be four participant States in an aircraft investigation: 1. The State of Occurrence; 2. The State of Aircraft’s Registry; 3. The State of the Operator; and 4. The State of Design and Manufacture The accident investigation authority shall have independence in the conduct of the investigation and shall have unrestricted authority over its conduct, consistent with the provisions of Annex 13. This is important for the impartial probing as taking liability in such cases comes with a heavy price. Usually, nations take the defence on inevitable technical faults to evade responsibility. In this case, there was a dearth of evidentiary reasons to explain the crash occurrence. Therefore, an investigation in accordance with Annex 13 was conducted. The powers given to the State of Occurrence in relation to the investigation in case of domestic crashes are unrestricted . This usually results in the concealment of culpability in such matters. The purpose of Annex 13 is not fixing of liability, but prevention of future accidents through solving the problems faced in a crash, but where the airliner is a national flag carrier, the governments may want to conceal the inadequacies in their civil aviation machinery. It is because the aviation sector of any country provides services to international passengers as well. And this adds to their responsibility to take effective precautions and active steps to ensure safe flight. The Percolating Issues The present case, where the cause of the crash is human error, has highlighted the need to construct strict licensing regulations. In a country where fake licensing systems exist, it raises an important question on the lives of the civilians who choose aviation as their mode of travel. It is owing to the inefficiency of pilots that the engines of the airliner were severely damaged, resulting in the crash. This has massively impacted the image of the PIA. Prior to the investigation, it was stated that the crash was due to engine failure. The external agents and global attention involved in the investigation prove how a state can evade accountability to safeguard its imagery. Though a number of pilots with bogus licenses have been grounded after this incident, the danger that hovered over the Pakistan Aviation Sector was significant. This shows the fault lines running deep in the administration of the aviation sector of Pakistan. The quantum of risk that its aviation industry is coloured with raises the need to make similar investigations in the aviation industry of other countries. Need for Regulation and Amendments This requires that the ICAO shall construct a permanent global investigatory authority with powers granted to conduct an investigation in both contracting and non-contracting states. Since the primary objective of Annex 13 is ascertaining the cause and resolving the issues surfacing in an aircraft accident, a foreign investigating agency would provide the impartiality and credibility to the investigating results. It is because of the unreasonable powers that have been given to the host state to investigate in case of a domestic crash, that the purpose of such investigation is markedly defeated. In January of 2020, a Ukraine International Airliner  crashed into Iran. Earlier Iran stated that the reason for the crash was technical negligence, but owing to global pressure it admitted to the finding that its armed forces, Islamic Guard Corps erroneously launched air missiles on the Ukrainian passenger jet claiming the lives of 176 people. This shows that leniency in the rules of the Chicago Convention gives the states an evasive mechanism to extrapolate facts and keep their imagery untarnished. At the domestic front, states should construct strict licensing systems in the aviation sector. The leniency, corruption, and nepotism shall not be tolerated. The people who choose to travel through air mode shall not be put in a situation of massive risk. Fake license holders shall be penalised and the authorities granting such licenses without strict considerations shall be held accountable as well. A large number of people all around the world entrust their lives with airliners. Apart from the inevitable technical mishaps that occur regardless of any intervention by any agent, inconsistencies that are highly avoidable shall not be the cause of the death of hundreds of people. In conclusion, along with the need to amend the Chicago Convention to suit the present-day global aviation community, there is a need to regulate licensing systems. A standard regulation protocol shall be made in this regard and duly complied with by the members of the ICAO so that the corrupt practices and inadequacies in licensing could be eliminated. The world community greatly relies on the Aviation Sector today. The cracks in its administration and regulation have a wide impact. References  BBC News, available here  BBC News, available here  Chicago Convention on International Civil Aviation, 1947  Chapter 4 & 5, Annex 13 to the Convention on International Civil Aviation (edn. 11th, 2016)  The Times of India, available here ©Image Courtesy: Brill & Rilandi- The Law Firm, here.
The Validity of Status of Henry VIII Clauses in India
[This article is authored by Madhur Arora, JGLS, O.P. Jindal Global University, New Delhi] Henry VIII clause is a provision that is generally added to parent legislations that delegate some power to the executive. They allow the said executive to amend or repeal one or more statutes by way of the enactment of delegated legislation.  Since the said clauses exist in the parent legislation that delegates such power in the form of “removal of doubt clauses” , there have been various contentions with regards to the existence of these clauses within the ambit of Indian Jurisprudence. Upon observation of the conflict that has ensued with regard to Henry the VII Clauses, it may be asserted that the Indian judiciary does indeed accept a narrow form of said clauses and does not disregard the validity of wide-ambit Henry the VIII Clauses completely. In the case of Jalan Trading v. Mill Mazdoor Union , Section 37 of the Payment of Bonus Act, 1965 was challenged as it was alleged to be a Henry VIII clause and subsequently a case of excessive delegation of powers. The power was delegated to the Central Government under the said section wherein the Central Government was empowered to make portions in order to remove difficulties or doubts as long as the provision was not inconsistent with the purpose of the act. The power was wide enough to allow the amendment of the parent act itself. Additionally, such power was final and was not open to judicial review. Justice Shah considered this an example of a wide-ambit or broad Henry VIII clause and ruled against its validity. Although the case of Jalan Trading has been considered the first case in laying down the foundation of the jurisprudence regarding wide Henry VIII clauses, subsequent decisions have gone into different directions. In the case of Gammon India v. Union of India  wherein the validity of section 34 of the Indian Contract Labour (Regulation and Abolition) Act, 1970 was challenged, citing the same reasons as the Jalan Trading case. Again, there was a power that had been delegated to the Central Government to create provisions for the removal of doubts and difficulties. Being a constitutional bench, the bench in Gammon India could not overrule the verdict of the Five – Judge bench in Jalan Trading, however, a distinction was drawn upon the ambit of the clauses itself in both cases. Wherein in Jalan Trading, the Central Government had the power to amend the parent act as well as the subordinate legislation, no such power existed with the government under section 34 of the Indian Contract Labour (Regulation and Abolition) Act, 1970. Additionally, the finality of the actions of the government in the Jalan Trading case was considered to be the factor that caused the clause to be considered an instance of excessive delegation, which is what led to the declaration of its invalidity. This meant that a narrow scope Henry VIII clause was acceptable and valid in India. However, this decision, therefore, had an interpretative implication that caused the Jalan Trading verdict to mean that the mere existence of Henry VIII clauses is not invalid. The invalidity stems from additional factors such as the finality of the actions of the government. However, when the judgment by Justice Shah is read carefully, the use of the term “accentuates” leads us to the conclusion that it was indeed the mere existence of the clause that was problematic, and the finality was an additional factor rather than a deciding one. “Power to remove the doubt or difficulty by altering the provisions of the Act would in substance amount to exercise of legislative authority and that cannot be delegated to executive authority. Sub-section (2) of s. 37 which purports to make the order of the Central Government in such cases finally accentuates the vice in sub. s. (1).” The ratio in Jalan Trading, therefore, was that any conferment of power to remove the doubt or difficulty by allowing the alteration of the provisions of the Act in itself is impermissible and that the presence of finality clause under Section 37, in that case, was only an accentuating matter instead of it being causation of the decision in the case. The conflict that arises between the two interpretations of the Jalan Trading case is causative of the ambiguity on the status of Henry VIII clauses and their status in India. In the event that the first interpretation is taken into account, we would find that the existence of all Henry VII clauses is invalid and that it may be struck down from any and all legislations by the ere virtue of its existence. However, the second interpretation is to be taken, we would find that any Henry VIII clause that would amount to excessive delegation would be invalid, however, any such clause that delegates with the permissible limits in Indian Jurisprudence is valid. After the Gammon India case, another landmark case upon the issue of the legality of Henry VIII clause is identified as Bengal Iron Corporation v. Commercial Tax Officer.  The challenge was to the validity of section 42 of the Andhra Pradesh Legislative Council Act, 2005 which stated that in the event there is a requirement for the executive to remove any doubts or difficulties in order to facilitate a smooth transition from the old act to the new act, they may do so by making rules that would have that effect. In making such rules, the executive may derogate from the provisions of the new act, which is also the parent act. However, in every other instance where removal of difficulty is required, the Executive can make rules not inconsistent with the provisions of the parent Act. This implies Section 42 is an example of both the broad and narrow Henry VIII clauses. The court upheld the validity of the said clause. They stated the following: “However, in a subsequent decision in Gammon India Limited., it has been explained that the decision in Jalan Trading was influenced by the words occurring at the end of Section 37 of the Payment of Bonus Act to the effect that the direction of the Government issued thereunder was final. It is meant "for giving effect to the provisions of the Act", it was held. Sub-section (2) of Section 42 of the A.P. Act does no doubt not contain the aforesaid offending words, and cannot, therefore, be characterized as invalid” The Bengal Iron Corporation's decision also being a Two – Judge bench cannot overrule the Jalan Trading verdict, however, serves as a guiding light in deciding what interpretation should be considered as valid in this regard. The Court in the Bengal Iron Corporation Case read the Gammon India Case as if it sought to imply that it was the finality clause in the “Removal of Doubt or Difficulty clause“ that influenced the decision of the Court in the Jalan Trading case. An assumption that the interpretation of both subsequent cases is correct is not only supported by the virtue of them being subsequent interpretations, but also by the fact that it has been noted on Indian Jurisprudence that broadening the ambit of a previous position by a subsequent decision of the same court is acceptable until there is a subsequent development that happens. This additional factor too ratifies the understanding taken by the court in Gammon India and Bengal Iron Corporation. It may be therefore ascertained that Henry VIII Clauses are valid in India. They may be divided into two types, broad and narrow. The jurisprudence is clear on narrowly worded Henry VIII clauses and allows for their existence. The ambiguity arises on questions of the existence of wide – ambit Henry VIII Clauses, however, their existence is not impermissible, rather, they may be considered invalid in the event they delegate power too excessively. References  “Delegating Legislative Power”, Australian Law Reforms Commission, available here, accessed on 10th May 2019.  Henry VIII Clauses & The Rule of Law, RULE OF LAW, Institute of Australia, available here.  Jalan Trading v. Mill Mazdoor Union, 1967 SCR (1) 15.  Gammon India v. Union of India, (1974) 1 SCC 598.  Bengal Iron Corporation v. Commercial Tax Officer 1993 SCR (3) 433. ©Image Courtesy: Henry VIII flanked by Jane Seymour and Prince Edward. Photo: Lisby. Public domain.
A Deletion of the Fundamental Ideals of the Constitution
[This article is authored by Mr. Ishan Fouzdar, Christ University] Owing to the extraordinary situation, said Mr. Pokhriyal, CBSE was advised to revise the curriculum and reduce the course load. Being an obedient Government institution, CBSE "rationalised" the curriculum for classes 9th to 12th, giving rationalism a different definition altogether. Fundamental chapters such as Democracy and Diversity, Gender Religion, and Caste were completely deleted from 10th syllabus. The ideas laid down in the historic Objectives Resolution moved by Jawaharlal Nehru as the very first motion in the Constituent Assembly, upon which The Indian Constitution was built were taken apart from the curriculum of 11th and 12th with the complete deletion of Secularism, Nationalism, Federalism, Citizenship, Regional Aspirations, Foreign Relations, etc. Foundations Deleted Let's first analyze the deletion in the Civics portion of the 9th and 10th. The chapters deleted from the Civics portion of the 9th and 10th raise some serious issues. These chapters dealt with the idea of diversity and conflict. India breeds a diversity second to none in the global scene and if at all a comparative study had to be made, USSR (which eventually broke down) came the closest to the diverse society of India. When India was at the brim of its inception there were sinister views of India crumbling down following the exit of the British from the elite classes of the world. John Strachey's view summarises the predominant idea of India as the world understood it then; according to Strachey, 'India' was merely a label, 'a name which we give to a great region including a multitude of different countries' adding to that Strachey also said to his audience at Cambridge, ‘This is the first and most essential thing to learn about India- that there is not and never was an India'(Guha, 2017). Ramchandra Guha calls India an ‘Unnatural Nation’ because the diversity which was supposed to take India down became the binding thread of the nation. Hence, the idea of Indian diversity and the role that it has played in the blooming of the nation is not a simple five-page read, it’s a rather complex and beautiful study that requires a strong foundation to begin with. The chapters deleted from the 9th and 10th curriculum laid down this foundation for further understanding the idea of Indian diversity and with them gone, a systematic approach to make India ‘Uniform’ seems to be underway. The difference between the terms ‘uniformity’ and ‘unity’ is scarcely understood and if I were to put it in the shortest possible way- unity shakes hands with diversity while uniformity handcuffs it. This basic understanding of the overused phrase “Unity in Diversity” was scribbled in these chapters and removing them is removing virtually a part of India from the textbooks. Religion, Gender, and Caste: A to-be Mythical Trinity Notwithstanding the beautiful diversity India has, there are conflicts that arise and are bound to arise in a diverse and democratic society. The chapter Religion Gender and Caste sketched out the three main axes of conflicts in India and how politics played out between them. This chapter is timeless and demonstrated to students that India is not an ideal egalitarian utopian country, it has its flaws and chinks. To solve a problem, the first step is to recognize it, the second step is to acknowledge it and the third step is to understand its roots. The problems of caste, gender, and religion have already made through the first two steps, this chapter laid the foundation for the third step- Understanding the roots. Henceforth, the removal of this chapter is, if not destruction of democracy, a sure dismantling of it, because democracy works on the ideals of accommodation and dialogue and dialogue is only possible when you understand what you are talking about. With these chapters gone, the very idea of conflict would be alien to students. Democracy Diminished Popular struggles and Challenges to Democracy showed two flip sides of the idea of governance which swept across the 20th century- Democracy. Popular struggles underlined the importance of democracy vis-à-vis its basic tenets. The chapter then went on to sight the struggles for democratic governments around the world giving prominent examples of Nepal and Bolivia. Challenges to democracy on the other hand went on to highlight the flaws that democracy has and the various challenges it faces. Together these two chapters gave students a well-balanced understanding of democracy and democratic governments. It’s difficult to predict what understanding of democracy would a student have without these chapters or if at all he/she will have any understanding. Democracy taught only as an ideology is incomplete and incompatible. Only after real-life events and examples have been cited can there be justice to the broad understanding of this idea and only then would students grasp the entirety of the picture. Assault on the Idea of India One fails to understand what a kid who bravely chose Humanities in 11th grade would have to face after he goes through his 2 years without understanding the basics tenets on which India was built and which India still upholds. A keen observation of the deletion vis-à-vis curriculum of 11th and 12th would reveal the great assault on the very idea of India and the ideas which are synonymous to the nation. The junior classes gave an overview to the students regarding broad ideas such as democracy, democratic rights, etc. and the senior classes(11th and 12th) paid attention to specific individual concepts. Hence making the entire structure of political science sound and well built. However, the huge layoffs in the subject by CBSE has obliterated the entire structure and seems to be based on the principle of ‘why let a sabotaged building stand at all.” The deletion of chapters such as Secularism, Nationalism, Federalism, and Citizenship is by no means rationalising, it is a complete rip-off of the soul of the Indian Constitution. Federal, Quasi-Federal Who cares? Federalism is a complex idea because of its dynamicity and the changing thought process of political ideologies. It is also important to mention that western ideas such as federalism, secularism, etc. wear different hats in the west and different hats in India. It was the ingenuity of the Forefathers and Foremothers of our Constitution to tweak the western ideas in order to adopt them in India which also stands as a rebut to the critics who term the Constitution as a work of duplication and manipulation. Indian Federal Structure is poles apart from America’s Federal Structure and is difficult to understand in that context. The chapter on Federalism dealt with the federal structure of India in detail, enabling students to understand what hat federalism wore in India. It dealt with center-state relations and also the role governor plays which is very important to understand the recent political crises in Maharashtra and Karnataka. The chapter also dealt with Article 356, the Emergency provisions, and the special case of Jammu and Kashmir. The chapter demonstrated the central bias in our federal structure (because of which it is sometimes called quasi-federal) and even goes on to state 257(1) and TT Krishnamachari on it. With all of that removed, how does one expect a student to understand the idea of federalism in India or even pronounce if India is federal or quasi-federal? Without the assistance of this chapter, it would be virtually impossible for students to grasp the dynamic idea of federalism and how it applies to countries to save India. Finally, the sui generis nature of Indian Federalism as DD Basu calls it (Basu, 2020) or Cooperative Federalism as Granville Austin calls it (Austin, 2019), is impossible to understand without digging deep into the idea. With the directions given by CBSE to touch upon the deleted concepts in order to establish connectivity with other chapters is an utter failure on the part of our policymakers; Federalism cannot be touched upon and understood on a whim, let alone connect with other chapters. Hence, the students have been deprived of an entire idea and not just a chapter! Citizenship, Nationalism, and Secularism: The inter-twined disappearance Citizenship, Nationalism, and Secularism form a paramount part of the Indian Constitution. The reason I group these three chapters together is that these ideas have developed overlapping spectrums since the ’90s with the rise of Hindu Nationalism. With growing alienation towards the minority communities, the emergence of Citizenship (Amendment) Bill, 2019, and the coalition of Nationalism and Religion, these three chapters are by far the most important chapters for understanding India’s messed up political scenario. These chapters went into an in-depth understanding of the three ideas and how they had unfolded in India. Similarly, like federalism, Indian secularism is way off the European model of secularism and the difference is dealt with in the chapter. Nationalism is a concept that has been propagated without a proper understanding of it. Bluntly proclaiming nationalism as good or bad is doing complete injustice to the ideology and the chapter dealt with grey areas of nationalism that remain predominantly unexplored by the so-called Nationalists today. Citizenship is a huge area of study which the chapter encapsulated comprehensively, with the ideas of citizenship out there and what India adopted. The CAA has enjoined citizenship with religion as a result of the radical Hindu-nationalism. This enjoinment of the three concepts viz secularism, citizenship, and nationalism is a huge territory to explore and without the understanding of these three ideas individually it is simply not feasible to understand the enjoined idea. These chapters laid the foundation to understand Contemporary issues like that of CAA. How can someone who hasn't had the foundation right, begin to understand these complex issues? Let alone solve them. An Unfillable Unfathomable Void Notwithstanding the extraneous situation we are in, the cut down especially in the political science curriculum of classes 9th to 12th is an ignorant and abhorrent move by the CBSE. Rationalisation of the syllabus was surely done but predominantly in science and maths portions where scarcely any chapters were completely deleted. In these subjects, few units from chapters were deleted while the rest of the chapter survived. This brought down the syllabus but at the same time conserving the core concept of the chapter. For example, in Coordinate Geometry, from the chapter of Straight lines Shifting of origin and one other subunit was removed but not the entire chapter; this conserved the core idea of straight lines and also reduced the syllabus. The directions given by CBSE to school heads for teachers to explain the core ideas of the deleted chapters so as to establish a connection with other chapters is merely a formality and also an impossibility. You cannot, after deleting an entire chapter expect the teacher to teach the core idea of that chapter without explaining the different dimensions of the idea, the factors which led to that idea, and the application of that idea in different contexts. Explanation of an idea is not simply stating what the idea is and surely not in political science. Hence, on one hand, you tell the teacher that the chapters aren’t in the curriculum so finish up the course in the given time (which has enormously been reduced due to online classes), and on the other, you also tell her to explain the core concepts of the deleted chapters without teaching that chapters in the same time frame. The fathom of ignorance on the part of CBSE to not pay heed to the fact that concepts such as Secularism and Federalism cannot simply be explained without thorough understanding is enormous. One cannot simply tell a political science student of 11th grade that Federalism is but the distribution of powers between the organs of government and move on with it, this definition does not even start to scratch the surface of this idea. Hence, CBSE vis-à-vis reducing the burden of the curriculum, while coming up with a solution of rationalisation and applying it to Science and Mathematics turned its back when it came to Political Science. This move prima facie seems to systematically deprive students of their critical understanding in the political arena and creates a huge void of understanding in the curriculum. References  India After Gandhi by Ramchandra Guha  Introduction to Indian Constitution by Durga Das Basu  The Indian Constitution by Granville Austin ©Image Courtesy: Click here.
Anthropology and Law
[This article is authored by Shivani Lalan, Pondicherry University] For anthropology, the roots of law lie in the shared responses to behavior that arise from culture. Law as seen in its “modern” form may well be an institutionalized response to those behaviors, whether positively or negatively reinforced. The American Anthropological Association defines the discipline in the following manner - "Anthropology seeks to uncover principles of behavior that apply to all human communities. To an anthropologist, diversity itself - seen in body shapes and sizes, customs, clothing, speech, religion, and worldview - provides a frame of reference for understanding any single aspect of life in any given community." Anthropology simply refers to the composite, comprehensive, and holistic study of humanity, keeping in mind all the variations and diversity therein and highlighting the same when required. Legal Anthropology The discipline, while agreeing on the purview of law, does not quite share its exact definition. Anthropologist E.A Hoebel has the following explanation - “A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting”. This draws up the definition of a law, or what is legally enforceable by tracing the very root of such enforcement, which is found in the nucleus of culture or society - a social norm. The presence of a social norm indicates that there are behaviors that are accepted, and consequently rewarded, and those that are unacceptable and will promptly be met with punishment in some shape or form. Social norms engender and represent the very core of what a society believes is right or wrong. These conceptions may vary drastically across societies, thus creating the space for two or more such groups to be biased against each other’s systems of enforcing or upholding these norms. Beginnings This was the beginning of legal anthropology - an evaluation of different legal systems found in varying cultures, and placement of the same on an evolutionary hierarchy. Anthropologists studying legal and political systems of cultures would proceed to then rank them in order of their place on the grand scale of evolution. This scale began from “primitive” stages of law and politics in tribes and ended in the Western conception of institutionalized justice and formal polity. Obviously, these anthropologists belonged to the latter end of their self-made spectrum. For them, the state of the law in any other culture must always be aimed towards or progressing to the standards set by the West. In anthropology, this expectation of cultures to match up to others, and the degradation of the same when they didn’t is termed as “ethnocentrism”. The Evolutionary school of thought in Anthropology was consistently ethnocentric in their views towards all aspects of culture, and the law was no exception to this outlook. In tribes where conflict resolution between two or more parties occurred through the counsel of a tribal chief, headman, or even a council of elders, the law was said to be less evolved than other forms. On the same scale, peasant societies that have designated upholders of law - even if they existed in the quasi-judicial or quasi-legal space - were said to be higher up. Further up the ladder were cultures that were non-Western, and yet had formal means of dispensing justice, in the presence of a formal authority that was non-partial and objective. The very top of this ladder was comfortably occupied by Eurocentric notions of formalized legal systems - the presence of a court, of a jury, systemized procedures, and elaborate codes that were formalized through a particular body of work (for instance, The Constitution). Contemporary Approach Such an outlook is rightly outdated and outmoded in the modern study of legal anthropology. The evolutionary framework of social thought was debunked by subsequent schools, who advocated for the objective and non-comparative studies of cultures. Today, anthropologists focus on the intersections between cultures within a nation-state or a seemingly unified legal framework. This is to say that the focus lies on the disharmony between the cultural frames of formal law, and other cultures that exist outside it. Legal anthropology today tries to investigate what lies in between the intersections of culture and law, or what falls through the gaps of the grids made by the two. At the center of this effort is the need to examine the causality of conflicts between diverse cultures and cultural practices, and the legal systems that are implemented as per the state. This dissonance is the cause of many frictions not just in the practice of law, but also in many stages of policymaking and execution. Simply put, if a legal system is unaware of what the cultures it governs consist of, the said system is not going to be efficient at dispensing justice across topics like religion, property, marriage, family, language, and so on. This is where social norms come into play - knowing the norms that already exist in cultures of a state, the state machinery will be able to construct legal systems that do not bulldoze or even vilify those norms. The need for this consideration is simply that cultural norms hold a primal place in the shared attitudes of a people. Transgressing these laws, even if it is for the purpose of erecting a formal legal mechanism, does not guarantee that the mechanism and its constituents will be honored by the people. The Way Forward It is increasingly common for policymakers to consult anthropologists before rolling out new provisions. This is done to ensure the efficiency of the provision, such that its target population is able to fully utilize it for their benefit. Such instances have been seen across the world and across both public and private sectors. Law too has seen its share of having anthropologists working with lawyers to better understand situations of parties in conflict, whatever level it may be at. One of the most famous examples of such a collaboration in the case of Llewellyn (lawyer) and Hoebel (anthropologist). Together, they created some of the most important case studies in fieldwork in the domain of legal anthropology (although it was not addressed as such at the time). Their work together spanned across many cultures, the most famous of them being the study of the “law-ways of the Cheyennes” (Hoebel, 1941). The creation of their body of work gave rise to an interest in such types of collaborations, often also leading to more and more research on varying legal systems within subcultures in a state, and their interaction with the larger formal framework of the law. It is not characteristic of law to be partial or to present a picture in parts. Research in the field must be built along the same lines. For this purpose, a partnership between anthropology and law is beneficial not only to both the professionals in terms of their own accomplishments or publications but also to both disciplines in general, since the quest to build a holistic yet centered body of work. References  Chris Fuller, Legal Anthropology,: Legal Pluralism and Legal Thought on JSTOR Anthropology  Today (1994), Available here  Mark Goodale, Anthropology, and Law: A Critical Introduction (2017).  The legal anthropological approach, Press-files.anu.edu.au, Available here  William Twining, Law and Anthropology: A Case Study in Inter-Disciplinary Collaboration, 7 Law & Society Review (1973). ©Image Courtesy: University of Kent, see here.
Granting IPR to A.I.: The Anthropomorphic Conundrum
[This article is co-authored by Prakarsh K & Shruti Mishra, National Law Institute University, Bhopal] Introduction Innovation has always been the focal point of human development. It is safe to say that an innovative mind has been more or less reserved for humankind. However, is there a way that we have found to share this gift of nature with an inanimate entity? And if so then what does that entail? Artificial Intelligence (Hereinafter referred to as ‘AI’) is the closest to a fabricated consciousness that has been created. Innovation by learning is one of the prime points of research in the field of AI. When we look at innovation from a legal perspective, the first thing that comes into consideration is the rights to protect it, specifically intellectual property rights (Hereinafter as ‘IPR’). IPR includes various rights and protections given to individuals such as rights to recreate, sell, distribute, exclusive use, etc. It essentially protects the ‘intellect’ that flows from any individual. However, when these were brought into force it was with the consideration that it may only be applicable to a ‘person’. At that point in time, one could not fathom the possibility of what the future holds when it comes to inventiveness. AI has been hailed as the closest link between software and the human mind. It has a myriad of applications and quality, one of them being the ability to learn and evolve according to the environment it is provided. This has a humanizing effect as it can based on its learning go beyond what was coded into it to create something new. The creation can be unique, novel and will have its practical applications; considering these it may very well qualify to be registered as intellectual property. AI systems can be registered under their individual creators, however, what about the creation that comes from an AI? Who will it be registered under and who will have the rights to it is the moot point. The Humanizing Factor One of the requirements for requesting a patent is for it to be done by a ‘person’ according to the Patents Act, 1970.  A ‘person’ may not necessarily be a biological term (Except for the U.S. where a patent can only be requested by a natural person.),  it can mean any entity having the status of a legal person which may include companies, firms, etc.  This establishes that it is not necessary to be made of blood and bone to be considered as eligible to hold the license and rights to an IPR. Legal personality being granted to AI has already started being considered in various countries.  This consideration did not initially stem from the possibility of granting AI the rights for creations, instead, it was first discussed due to the criminal activities that AI might indulge itself into. To pin the liability on the doer or the enabler or creator was the question. While that was being discussed on the criminal front the civil branch started out in a positive direction discussing the possibility of giving AI rights. It was at this point that the possibilities in IPR were shed light on. It is pertinent to note here that it is not being suggested that AI be given the same status as a human being or anything similar, that would involve issues of moral and ethical character which is a totally different area. It is more of a corporate version of legal personhoods such as one granted to firms or organizations giving them limited rights and imposing liabilities. It may also be a possibility that a new category may be created for AI as being a non-living entity but having a certain level of autonomy. Without the considerations of human sentiment but of human or even higher intellect. These may be included in a Statue bringing it under existing legislation or may be subject to an entirely new policy, either way, that is in the distant future. No Strings Attached: AI Autonomy It is no surprise that currently there exist no provisions whatsoever to grant AI intellectual property rights. “Without human intervention and training, AI algorithms will churn out the rubbish.” Currently, the law does not see AI as an independent entity, it sees it as an intermediary between a human and the desired result. An aiding mechanism that makes data processing and such activities faster and easier. However, this is no more completely true and definitely will not be in the near future. Instances of autonomous AI innovations and actions are increasing with each passing day. There are instances wherein a commercially available AI system can integrate AI and machine learning dimensions to almost any software programme and process large amounts of data without any organized input.  All this without any actual human intervention. The initial product was a human creation, however, what about the software code it evolves on its own into something new. Further in the field of medicine and biotechnology scientists have been using AI to expedite the process of arriving at medicines and vaccines. Currently, this requires structured input of data however with the level of development this requirement has been decreasing.  AI is able to study biological data and arrive at inputs without any intervention. AI is also used by reporting agencies to create pieces of work that they publish by simply allowing the AI to scourge through available material which is the exact same thing any other employee would have done prior to availing AI services.  Worthy Enough? IPR & AI There have been cases across the globe wherein it was discussed that there is the requirement of human uniqueness when registering for IPR.  However, over the years these vague terms were overruled by judgments that watered down the requirements to be limited to the mere fact that it is not copied. In India, even derivative work may be considered as intellectual property as long as there can be a distinction that is drawn.  Derivative work is something AI has been used for time and again mainly used by news reporting agencies.  This presents a rather significant possibility of AI creating works that meet the minimum standard of the requirement for getting it registered. How would it work? Because even if it were allowed that IPRs may be registered under an AI or that the AI will have the first claim to the creation that would be a dead end. Even if AI is allowed to hold rights, it is still too far in the future to consider AI regulating its creations into the commercial world. Hence, AI systems meeting a certain level of standard requirements should be allowed to get the creation registered under them, just like companies or other organizations. However, the licenses to regulate, duplicate, distribute etc. should lie either with the original creator, or the current owner of the system. Basically, whoever’s made it possible for the AI to create what it did. It will definitely require time and detailed research and analysis as a combined effort of technicians and IPR specialists to actually come up with a comprehensive way to effectuate the aforementioned. Audi Alteram Partem: Liability We cannot possibly talk only about the rights to be granted without hearing the other side of it i.e. liabilities. AI is programmed with the intention of reducing human intervention as much as possible. This leaves scope for the AI to wander into an unwanted direction. When AI has the ability to create new works it also has the ability to recreate existing works, either intentionally or unintentionally. There is scarce jurisprudence on instances where AI has infringed another individual’s IPR. This brings us to what we had discussed at the beginning regarding AI liability. The fundamental question here would be the intention of whoever was the most proximate human link to the alleged AI action. Was the person who coded the system meant to code it in a way so as to recreate original works. Or was the person using the AI being aware of its functionality, knowingly fed it data that resulted in the alleged product. It would also be worthy to note that what the individual who effectuated the process does with the final product, as it would then show his intentions. If the individual distributes it, sells it, knowingly does so in a dubious way, it would be clear who to pin the liability on. If it is not one of the above-mentioned scenarios, it would be better to instruct the user under the guidance of an officially appointed technician to make sure that the AI is modified in a way so as to not recreate the alleged product. The ‘Why’ Factor There have been petitions filed for granting AIs the property rights, discussions, and debates and research on this very topic. But why? The main aims of IP rights are promoting innovation and security to creators. However, in specific situations, we may have to look past that and think of the possible conflicts once autonomous creations by machines become a mainstream phenomenon. One of the possible points of conflict may be when various minimal-to-no human intervention AI systems promising novelty creations are commercially available. Consumers buying such products will expect the least amount of input from their side and a novel creation. If they do get the desired result, then what would stop the creator of the AI claiming a right to that invention because he is the one who created the AI in the first place. Sure, contracts can be made but how efficient would be signing contracts for every system and honestly when was the last time you actually read the terms and conditions for anything. There is already a point of conflict regarding such future regulations wherein ‘open’ movements for science and data are pressing on any and all creations made by AI to be freely available for the development of other AI systems and data.  If this is made possible then there would again be no incentive to obtain AI systems that create novelty items as the moment it is created, it becomes public. Such problems may be evident now or when we are faced with the situation in front of us. The only way to make sure it does not lead to chaos and hasty decisions is to start regulating it right from the beginning and get a head-start. Conclusion: Only the Tip of the Iceberg Artificial Intelligence and its capabilities are a gift that mankind has given itself. There are two sides to everything, and AI is no exception. The use of AI should be promoted however while keeping a tab on the developments. Nothing in today’s society can be allowed to stay unregulated. Policymakers have to balance the scales between preserving innovation and curbing misuse. AI is still in the process of reaching the stage where it will require compulsory IPR regulation. There are projects under development that will determine the future of AI technology, what we know now is still only the tip of the iceberg. However, one may never be too sure about the possibility of sudden advancement. Hence, the policies must remain in the loop with technology. The earlier we start regulating the larger will be the scope for evolving the policies along with the progression of technology. This will also leave minuscule room for situations that we are completely unprepared for. Artificial Intelligence is tricky, as it is an inanimate object with the only quality of humans that we cannot trust as an outsider, their thinking. References  The Patents Act, 1970, Acts of Parliament, No. 39, 1970 (India).  Aarsha, Whether Company registered under the Companies Act have corporate personality, Legal Service India, Available here.  Bacha F. Guzdar v. Commissioner Of Income-Tax, (1954), AIR 740, (India).  Politico, Europe Divided over Robot Personhood, POLITICO, (June 25,2020, 23:55), Available here.  Ahuja AS. The impact of artificial intelligence in medicine on the future role of the physician. PeerJ. 2019;7:e7702. Published 2019 Oct 4. DOI:10.7717/peerj.7702.  Sandra Durcevic, Intelligent Reporting - How Big Data and AI Are Changing the Way We Create and Analyze Reports, DATAFLOQ.  Bleistein v. Donaldson Lithographing Co. 188 U.S. 239, 23 S. Ct. 298 (1903).  Eastern Book Company & Ors vs D.B. Modak & Anr, (2007), Appeal (civil) 6472 of 2004, (India).  Enrique Dans, Meet Bertie, Heliograf And Cyborg, The New Journalists On The Block, Forbes, Available here.  WIPO, Artificial intelligence and intellectual property: an interview with Francis Gurry, Available here. ©Image Courtesy: Eureka: Sharing Big Ideas, see here.
Contemporary Debate on Secularism: The Implicit and The Explicit
[This article is co-authored by Tejas Satish Hinder and Prakarsh, National Law Institute University, Bhopal] The debate about secularism in India today is arguably symptomatic of the increasing communalization of Indian society and politics. The resurgence of majority and minority fundamentalism, the reassertion of parochialism, the sudden outburst of the anti-reservation movement, and, above all, the call to liberate Lord Rama in Ayodhya, have all contributed towards the creation of the current state of “civil war” in the Indian society. Between 1982 and 1985, the army was called out as many as 353 times to maintain law and order in different parts of the country.  Between 1980 and 1989, India witnessed close to 4,500 communal incidents, in which over 7,000 people lost their lives,  almost four times as many deaths in this type as in the 1970s. India’s intellectuals argue that secularism is essentially a western value, out of place in the Indian cultural context, They seek, instead, alternatives in the Indian past, turning to the “real India” of pre-colonial times and to its ‘history and mythology”, in the hope that “our past, in its essence, could be adopted for the future.”  They attribute the decline of secularism in India not to the social and political process at work under British rule, within the national movement and under the independent Indian state, but to the un-Indianness of the concept of secularism itself.  The implications Secularism is implicit in the entire constitutional framework. What does secularism in the Indian Constitution mean? The question admits of no easy answer and cannot be restricted to textual interpretation alone. It is a constitutional value that seeks to manage India’s diverse and plural society, in an atmosphere of cohesiveness of national purpose. The guarantee of equality in Article 14; the promise of non-discrimination in Articles 15 and 16; protection from religious taxes and religious instruction in state-funded institutions set in Articles 27 and 28; the permission of educational institutions of choice to linguistic and religious minorities in Articles 29 and 30; the promise of equal ballots devoid of sectional preferences in Article 325 - all make for a constitutional architecture which is devoid of any religious preference whatsoever. God is significantly absent throughout the Constitution. “One nation under God” is not the allegiance which the Constitution seeks of its citizens. Believer, atheist, and agnostic alike, the Constitution do not differentiate. There are however provisions that seek to enforce equality within the Hindu religion in Articles 17 and 25(2)(b). Deference to Hindu sentiments on cow slaughter is also provided for in Article 48, as is the pious hope for a uniform civil code in Article 44. Taken as a whole package, the constitutional vision of secularism is one of principled equidistance from all religious matters, while at the same time regulating its practice in a manner consistent with the demands of modern society. Crucially, in Article 25(2)(a), we can find constitutional permission for the state to regulate or restrict “any economic, financial, political or other secular activity which may be associated with religious practice”. Thus, it is fallacious to argue that the original Constitution as adopted, enacted, and given to ourselves on November 26, 1949, was not a secular document. The inclusion in the Preamble of the words “socialist” and “secular” by the 42nd Amendment on January 3, 1977, only headlined what was already present in the original text of the Constitution. We must also remember that the Preamble itself was drafted only after the Constitution was approved by the Constituent Assembly. The Preamble thus became a one-page mission statement of the republic’s intent.  Judicial Stance on the issue In S.R. Bommai v. UOI , It was held that “Religious tolerance and equal treatment of all religious groups and protection of their life and property and the places of their worship are an essential part of secularism enshrined in our constitution. while the citizen of this country are free to profess, practice and prorogate such religion, faith or belief as they choose, so for as the state is concerned i.e. from the point of view of the state, the religion, faith or belief of a person is immaterial to it, all are equal and all are entitled to be treated equally.” Further the Court while emphasizing the significance of Secularism declared it as the basic structure of the Constitution. The concept of secularism was not expressly incorporated in the constitution at the stage of its making. However, its operation was visible in the fundamental rights and directive principles. The concept of secularism, though not expressly stated in the constitution, was, nevertheless deeply embedded in the constitutional philosophy. The concepts of secularism are not static; it is elastic in connotation. In this area, flexibility is most desirable as there cannot be any fixed views in this concept for all time to come. The courts decide from time to time the contours of the concepts of secularism and enforce it in practice. In M Ismail Faruqui v. Union of India,  It was held that “It is clear from the constitutional scheme that it guarantees equality in the matters of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the state itself. The preamble of the constitution read in particular with articles 25 to 28 emphasis this aspect and indicates that it is in this manner this concept of secularism embodied in the constitutional scheme as a creed adopted by the Indian people has to be understood while examining the constitutional validity of any legislation on the touchstone of Constitution.” The concept of Secularism is one facet of the Right to Equality Woven as the Central golden thread in the fabric depicting the pattern of the scheme in our Constitution. Any steps inconsistent with these mandates are Unconstitutional. The Court further held that any state Government which pursues unsecular policies or unsecular course of action acts contrary to the Constitutional mandate and renders itself amenable to action under Article 356. In Aruna Roy v. Union of India,  The court held that “The Concept of secularism is not endangered if the basic tenets of all religions all over the world are studied and learned. Value-based education will help the nation to fight against fanaticism, ill-will, violence, dishonesty, and corruption. These values can be inculcated if the basic tenets of all religions are learned.” The Hon’ble Supreme court has held in Lata Singh v. State of U.P.,  “that caste barriers in societal interactions are anti-secular. Inter caste marriage shall be promoted, protected, and conserved by the state to promote greater secular values. This is also a part of the secularization process. The concept of secularism is not merely a positive attitude of religious tolerance. It is also a positive concept of equal treatment of all religions.” Although the Constitution does not define what is meant by the word "religion," the Supreme Court of India has expressed divergent views on the meaning of religion. In cases such as Hindu Religious Endowments v. Sri Lakshimdra Thirtha Swamiar,  the Supreme Court took an inclusive approach to religion: On the other hand, some Supreme Court cases have taken a narrower view of religion. For instance in S.P. Mittal v. Union of India,  the Supreme Court took a restricted view of religion and held that Sir Aurobindo's teachings were a philosophy, not a religion, despite his followers' belief that it was a religion. In other cases, the Court has given effect to the egalitarian vision of the Constitution. For instance, in the Temple Entry case, Sri Venkataramana Devaru v. State of Mysore,  the Court found that the state legislation allowing all Hindus, including low caste Hindus, the right to enter temples did not violate the rights of religious institutions under Article 26(b) of the Constitution. In addition to the general inclusive approach to religion, the Supreme Court has stated that religious practices or performances of acts that are essential to the pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines.  The question of what practices can be considered to be an essential part of the religion is ascertained by examining the doctrines of that religion.  Conclusion But if Indian Secularism has indeed been such a failure, why, one might ask, has India continued to pay lip-service to it? The answer, it is possible to argue, lies in the imperatives of nationalism, first in the need to unite India behind the nationalist leadership, and later, in the need to invent a legal and political framework in which “national unity” might be realized. These imperatives pushed even those who had little real commitment to genuine secularism to proclaim publicly their adherence to secular values. There thus has always been a hiatus, therefore, between the true meaning of secularism and the variant of secularism as espoused in India.  If secularization, therefore, is to be understood as a process in which ties of religion, casteist, and ethnic particularisms are gradually transcended, in which politics are defined on rationalist and ideological lines, and in which religion, caste, and ethnicity are confined to the sphere of ‘private” life, then its reverse has occurred in India. Communal politicians have successfully used the economics of inequality, uneven development, and under-development to reinforce their stranglehold over society.  References
 India Today, 15 May 1985, 5
 India Today, 15 January 1990, 34. Mushirul Hasan “In search of Intergration and Identity”, 2469.
 Veena Das, Difference and Division as Designs for Life, in Carla M. Borden (ed.) Contemporary India: Essays on the Uses of Tradition, pp. 46 (Delhi, 1986)
 Rajni Kothari, Will the State Wither Away?, The Illustrated Weekly of India, 8 July 1984
 Sanjay Hegde, Secular in spirit and in letter, The Hindu, Available here
 S.R. Bommai v. Union of India, AIR 1994 SC 1918
 M Ismail Faruqui v. Union of India, AIR 1995 SC 605
 Aruna Roy v. Union of India, Writ Petition (Civil) 98 of 2002
 Lata Singh v. State of U.P., Writ Petition (Crl.) 208 of 2004
 The Commissioner, Hindu Religious Endowments v. Sri Lakshimdra Thirtha Swamiar 1954 AIR 282
 S.P. Mittal v. Union of India 1983, SCR (1) 729
 Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 895
 Ratilal Panachand Gandhi, AIR 1954 SC 388, 392; Venkatamana Devaru v. State of Mysore, AIR 1958 SCR 895, 909
 The Commissioner, Hindu Religious Endowments v. Sri Lakshimdra Thirtha Swamiar, 1954 AIR 282
 Prakash Chandra Upadhyaya, The Politics of Indian Secularism, Modern Asian Studies, Vol. 26, No. 4, pp. 815-853 (Oct., 1992)
 Javeed Alam, The Political Implications of Economic Contradictions in Punjab, Social Scientist 161, 15 (10 October 1986) ©Image Courtesy: New Indian Express
The COVID-19 Pandemic and its Impact on Competition in India
[This article is authored by Irith Kapur, Vivekananda Institute of Professional Studies, Delhi] Introduction The COVID-19 pandemic has affected various businesses globally. It has tested the businesses in a way like never before and the ensuing upheaval is expected to affect the global economy in the coming months and possibly years. Certain industries like the airlines, hospitality, entertainment, etc. will battle to recover financially. But, the essential commodities industries, such as pharmaceuticals and health-care industries, will experience an explosion in demand. They may try to capitalize on this situation by increasing prices or regulating the supply of essential products. To overcome the economic downfall, competitors may join hands to fight the pandemic. This may include situations of collaboration with competitors to manage demand and supply challenges or with potential future overcapacity. The main objective of Competition Law is to ensure that the competitors act independently and are staying afar from anti-competitive practices. While these efforts are somewhat necessary, it is contradictory to the main objective of Competition Law. Companies should be aware that the arrangements of the Competition Act, 2002 keep on applying in any event, even during the current pandemic. Any action of the companies which violate the provisions of the Act will probably be inspected by the Competition Commission of India (CCI). The task of regulatory authorities becomes crucial during these times since the companies may use tactics that could have an appreciable adverse effect on competition in the market and, eventually, on the consumers. Thus, the regulators of several countries such as the United Kingdom, United States of America, Spain, France, etc. have come to the conclusion that competition law is not to be suspended during the pandemic and that the conduct of the companies will be kept in check to curb any anti-competitive practices in their jurisdiction. Collaboration To fight the negative impact of the pandemic on businesses, competitors may collaborate to facilitate the production and distribution of services. Section 3 of the Competition Act, 2002, forbids any agreement amongst enterprises if such agreement causes or is likely to cause an appreciable adverse effect on competition in India. The section further provides an exemption for joint ventures by saying that nothing contained in this section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.  The Central Government has the power to exempt any such collaboration in the interest of the security of the state or public interest.  Due to the need of the moment, the European Competition Network (ECN) has issued a statement indicating that ECN members will not intervene against certain forms of cooperation amongst competitors, which are absolutely necessary to ensure that surplus demand is met with adequate supply. In India, many companies are allocating their resources for research and development in the field of pharmaceuticals and medical sciences to pave the way for a breakthrough in finding a vaccine for COVID-19. So, it is a possibility that competitors may begin participating in joint research ventures to accelerate this process. However, they would simultaneously have to worry about violating the provisions of the Competition Act. The Government of India has not exempted the application of the Act yet, but it is recommended that they borrow wisdom from regulators of competition in other jurisdictions and defer the operation of antitrust laws in India for a temporary period so as to enable the companies to enter into a collaborative agreement with their rival enterprises for the purpose of accelerating the research and development activities to fight the pandemic efficiently. Exploitative Conduct In order to profit from the unprecedented demand, some companies may engage in exploitative conduct, which should be investigated and penalized by the competition regulators of the jurisdiction. Consequently, businesses should abstain from engaging in the following exploitative practices: Forming a Cartel  Limiting the supply of products  Price fixing  Allocation of customers  Abusing their dominant position in the market  The practices which are prohibited by the Act cannot be permitted and justified under any circumstances, even during the ongoing pandemic. In India, the Ministry of Consumer Affairs has asserted that face masks and hand sanitizers are considered to be “essential commodities”. The Government has also capped the maximum price that can be charged from the consumers.  However, various reports have emerged that these essential commodities are being sold at inflated rates across the country.  It must be made sure by the CCI that an inquiry is made into any anti-competitive practices and abuse of dominant position in the market to benefit both, the enterprises and the end consumers. Functioning of CCI The CCI has been efficient in embracing different measures to proceed with its working during the pandemic. The following are the key points about the working of CCI during the pandemic: i. Filings under Sections 3 & 4: In the wake of the pandemic, the CCI issued a notice regarding the suspension of all filings under Sections 3 and 4 of the Act. Further, it issued a notice which said that all filings or compliances up to 14th April 2020, with respect to the pending cases before the CCI, were suspended. Then, as per the latest notice by the CCI, information under Section 3 and 4 of the Act may be filed electronically and fresh dates were to be notified for all compliances due on or before 3rd May 2020. ii. Hearings before CCI: As a consequence of the nationwide lockdown to combat the pandemic, the CCI adjourned the hearing of all the cases to 31st March 2020. As per the most recent notification by the CCI, fresh dates for hearings listed up to 3rd May 2020, were to be informed to the respective parties. iii. Notification of Combinations: By the order of the CCI, all notifications in relation to combinations  were delayed until further orders. The succeeding notice authorized the filing of notices with respect to combinations electronically only under the Green Channel.  However, the latest notice by the CCI takes into consideration the electronic filing of all combination notices. iv. Advisory to Businesses: The CCI has issued an advisory to businesses, acknowledging that the pandemic has led to disturbances in the demand and supply equilibrium of the market. The CCI has agreed to the fact that collaborative agreements between businesses may be required to ensure uninterrupted manufacturing and supply of essential commodities. It has been suggested by the CCI that only those businesses will be considered by it which are necessary to fight the economic concerns arising due to the pandemic. The advisory also contains a warning for all the businesses which are likely to attempt to take advantage of the situation and violate the provisions of the Act. Conclusion The COVID-19 pandemic presents unprecedented economic challenges for businesses in India and the world over. There is a need for specific economic measures to counter its negative impact. However, this is not a free pass for companies to infringe competition law. Companies need to be wary of the fact that regulatory authorities will be keeping a close eye on their activities and will surely test any violation of the competition laws. Moving ahead, companies should discern that they must remain cautious in the way in which they deal with the pandemic, especially if they are looking to collaborate with their competitors. The actual risk is difficult to ascertain but history suggests that companies should linger towards the safe side. Any activity to deal with the pandemic that puts the consumer at a disadvantage or causes appreciable adverse effect on competition in the market will result in an investigation by the regulatory authorities, sooner or later. References  The Competition Act, 2002, No. 12, Acts of Parliament, 2003 (India), Section 3(3)(d) proviso.  The Competition Act, 2002, No. 12, Acts of Parliament, 2003 (India), Section 54(a).  The Competition Act, 2002, No. 12, Acts of Parliament, 2003 (India), Section 2(c).  The Competition Act, 2002, No. 12, Acts of Parliament, 2003 (India), Section 3(3)(b).  The Competition Act, 2002, No. 12, Acts of Parliament, 2003 (India), Section 3(3)(a).  The Competition Act, 2002, No. 12, Acts of Parliament, 2003 (India), Section 3(3)(c).  The Competition Act, 2002, No. 12, Acts of Parliament, 2003 (India), Section 4.  Ministry of Consumer Affairs, Food, and Public Distribution, Essential Commodities Order, GOVERNMENT OF INDIA, Available here  Press Trust of India, Coronavirus: Licenses of 5 medical stores cancelled for selling sanitisers and masks at inflated rates, FINANCIAL EXPRESS, Available here
 The Competition Act, 2002, No. 12, Acts of Parliament, 2003 (India), Section 6.  The CCI (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2019, Regulations of CCI, 2019, Regulation 5A. ©Image Courtesy: InformaConnect, see here.
POCSO Amendment Act 2019: A Step Towards a Safe Future
[This article is authored by Aishwarya Agarwal, Bharati Vidyapeeth's New Law College, Pune] Development of a country is measured through its GDP, infrastructure, and position in the global market but are these the only parameters to ascertain the growth of the country? No, one of the most important features is the quality of population i.e. the literacy rate, mortality rate, etc. To ascertain the progress of a country it is necessary to focus on the child and youth population of the country i.e. to provide them with basic necessities as well as a peaceful and protected environment to grow. India is home to a large population of which more than 30% comprises children between the age of 0-18 years.  Ministry of women and child development with UNICEF conducted a survey in 2007 which showed that out of total respondents 52.94% were boy child as compared to 47.06% who were girl child reporting cases of sexual abuse.  To protect children from such inhumane acts the government of India had taken several steps. Before the year 2012 protection of child against sexual offences were provided under IPC, Juvenile Justice (Care and Protection of Children) Act 2015 but neither could address the issues of sexual abuse of male child efficiently. The ministry of women and child development addressed the issue by enacting Protection Of Child from Sexual Offence Act 2012 (POCSO) to provide protection to children from sexual offences and establish special courts for trials in such matters. The act was made gender-neutral in order to address the matters of sexual offences against male and female children below the age of 18 years. Until now the act addressed the issues in order to safeguard the rights of children but with time and increasing offences against children the need for even more strict measures arose and the new POCSO amendment act 2019 paved a way to resolve the matter. The amendments prescribed by the Act are as follows. Child Pornography POCSO 2012 did not define child pornography. The term has been defined in the new amendment which provides a large scope for protection against such an offence and a much clear meaning of the same. The POCSO Amendment Act of 2019 defines child pornography as follows: “Child pornography means any visual depiction of sexually explicit conduct involving a child which include a photograph, video, digital or computer-generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child”  Death Penalty For the first time ‘death penalty’ has been introduced under POCSO by ‘The protection of children from sexual offences amendment act 2019’ for the crimes of aggravated sexual penetrative assault under section 6(1) of the act. Until now the act consisted of the punishments of fine, rigorous imprisonment and imprisonment for life or less. Gender Neutral One of the recent developments in the criminal law brought in by THE CRIMINAL LAW AMENDMENT ACT 2018 is that the person convicted of rape of a minor girl below the age of 12 years would be punished with the death penalty. The amendment was much appreciated and was considered to be a progressive step towards the protection of minor girls against such a heinous and inhumane crime, but it gave rise to concerns regarding the discrimination against male survivors of sexual assault for not getting equal justice. POCSO Amendment Act 2019 introduced the death penalty as a punishment for the convicts of aggravated sexual assault against both boys and girls, keeping the act gender-neutral and providing equal justice to the victims of the same offence. Drugs and Chemicals A whole new dimension has been provided in the act. With the changing world, new methods of exploitation have been invented and this has exposed the victims and the targeted groups to much more vulnerability. The ministry after the intensive research and deliberation have introduced clause (v) in section 9 of the principal act which says “whoever persuades, induces, entices or coerces a child to get administered or administers or direct anyone to administer, help in getting administered any drug or hormone or any chemical substance, to a child with the intent that such child attains early sexual maturity”  and the punishment accordingly. Punishments Court Orders The recent Unnao, Kathua rape case and increasing child sexual abuse cases drew attention towards the much-needed reforms and measures to be taken in order to protect the vulnerable children from the sexual predators. The honorable Supreme Court of India took cognizance of the same and under a Suo Moto Writ Petition (Crl) No. 1/2019 passed an order on 25/7/19. The order consisted of directions as follows:  In the districts where cases under POCSO exceeds 100, a special court should be set up which deals with only POCSO cases. Such courts will be funded by the central government The appointment of the panel should not only be on the basis of qualification but also the sensitivity towards victims of child sexual abuse. The public prosecutor has to match the same standards. With this, the court directed the states to report the no. of cases, no. of courts, and other relevant information under POSCO in all the states individually and the progress on the given directions. After the assessment of conditions of states individually, regarding the no. of cases under POCSO, the honorable supreme court on 16/12/19 passed an order in which each state was directed to set up special POCSO courts according to the guidelines specified previously and separate criteria were laid down for the state of Uttar Pradesh and West Bengal where the pendency of cases under POCSO was the highest.  Conclusion Although efforts have been made to protect and help the victims getting justice against sexual offences, it is still a long path down the road to eradicating this heinous crime from society. It is not a crime against an individual but a crime against society and this demands contribution from each and every person on their own level to help eliminate the mentality which gives rise to such offences.
 2020. Population Composition. [ebook] Available here
 2020. Study on Child Abuse: India 2007. [ebook] Available here
 The Protection of Children from Sexual Offences (Amendment) Act, 2019. 2 d (a).
 The Protection of Children from Sexual Offences Act, 2012. 9.
 SUO MOTO WRIT PETITION (CRIMINAL), (2019) SCC (India), Available here
 SUO MOTO WRIT PETITION (CRIMINAL), (2019) SCC (India), Available here ©Image Courtesy: Current Affairs Plus, see here.
Copyright Infringement in Media Entertainment
[This article is authored by Ritika Acharya, Maharashtra National Law University, Mumbai] In recent years, the Hon’ble Bombay High Court has become the hotspot of origin of a large number of cases relating to the Intellectual Property Rights of the media and entertainment industry. Recently, vide its order dated 26th May 2020, the Court held the creators of the web series “Singardaan” liable for copyright infringement in the matter of Shamoil Ahmad Khan v. Falguni Shah & Ors.  (Ahmad Khan) This article aims firstly, to analyze the parameters required to establish a prima facie case of infringement of copyright and secondly, to examine the Court’s rationale in determining the quantum of liability to be attached to the defaulting party for the same. Facts The Plaintiff against alleged that a web series by the name of “Singardaan” created by Defendants, was an adaptation of the Plaintiff’s short story bearing the same title, that had been widely published in various books and magazines many years prior to the web series’ development. The Plaintiff submitted that the web series consisting of 6 episodes of a total duration of about 1 hour and 54 minutes, had been released by the Defendants on an application called “Ullu” as well as on YouTube. The makers of the series had copied not only the title but also the entire plot, narrative, and characters of his story by the same name. The Defendants vehemently denied the Plaintiff’s allegations and argued that even though the titles were the same, the Defendants’ work was an entirely original story; the premise, the storyline and character development in the two works were materially different. Advocating that his copyright was infringed, the Plaintiff filed a commercial suit against the Defendants. He sought to recover damages from the Defendants along with an interim injunction restraining them from using the title “Singardaan”, or any other identical or deceptively similar title for their web series, so as to pass it off as the Plaintiff’s story. The Judgment of the Bombay High Court The Court first considered the issue of the title of the web series. The Hon’ble Supreme Court’s decision in Krishika Lulla v. Shyam Vithalrao Devkatta  was revisited. In this case, the Court had held that no copyright subsists in the title of a literary work per se and no case of copyright infringement can be urged against any other user of that title. Even if there exists a case of passing off, it is not sufficient for a Plaintiff to merely show that the Defendant has used an identical or a deceptively similar name or title; he has to further show that the title or name of his own work has acquired such reputation that the reading public is likely to identify it with the Plaintiff alone and none else, and, thus, the Defendant’s use would be likely to result in passing off of the title of the Plaintiff’s work by the same name. Going by the same line of thought in Ahmad Khan, the Court observed there was no proof that the Plaintiff’s title “Singardaan” had attained a high level of public recognition and reputation. Nothing in the Plaintiff’s arguments suggested that the term “Singardaan” was associated with the reading public with only his work. Thus, his argument regarding the infringement of the title “Singardaan” could not be sustained in the eyes of law. Curiously, the same approach was employed by the Court in its order dated 22nd May 2020, in the case Sameer Wadekar v. Netflix Entertainment Services Pvt. Ltd.  (Wadekar), the facts of which are very similar to those of Ahmad Khan. In Wadekar, the Plaintiff filed a suit for copyright infringement, alleging that the Defendants had copied the title of one of his scripts called “Vetaal”, in the creation of their upcoming Netflix show titled “Betaal” . The Court opined that there was no case of copyright infringement because the word “Vetaal” found its origins in Hindu mythology, and referred to an entity with supernatural powers. It was not a creation of the Plaintiff and was not associated with or revered as the Plaintiff’s work by the general public. There was a minor difference in the facts of Ahmad Khan and Wadekar, in that the web series “Singardaan” had already been released prior to the institution of the suit in the former case whereas “Betaal” was scheduled to be released post the institution of the suit in the latter case. In spite of this, the Defendants in Ahmad Khan could still have used the Court’s reasoning in Wadekar to strengthen their rebuttals by showing that the Plaintiff never had a copyright over the title “Singardaan” in the first place. The Court in Ahmad Khan proceeded to examine the Plaintiff’s story, whose protagonist had come into possession of a prostitute’s vanity box called “Singardaan” (that inspired the title of the story). After he took the box to his home, the protagonist’s wife and daughters started dressing up and behaving provocatively using the same mannerisms as a prostitute. This ultimately resulted in the protagonist getting rid of the vanity box. The Court compared the web series’ plot to the Plaintiff’s story and came to the conclusion that there were stark similarities between the two since the Defendants had substantially reproduced the Plaintiff’s story including its key elements and characters. The Court acknowledged the Plaintiff’s contention that the web series was an actionable copy of his literary work . The Court went on to explain the dichotomy of a well-known idea versus its expression, an issue that is hugely prevalent in the current copyright law framework. One of the earliest formulations of this dichotomy was found in the case of Hollinrake v. Truswell , wherein the English Court had expressed that copyright does not extend to ideas, or schemes, or systems, or methods; it is confined to their expression; and if their expression is not copied, the copyright cannot be said to be infringed. This maxim has been often repeated in later copyright cases and finds expression even in the celebrated case of R.G. Anand v. Delux Films  decided by the Indian Supreme Court, which recognized this dichotomy as fundamental to the doctrine of copyright. The single-judge bench in XYZ Films v. UTV Motion Pictures  had also posited that copyright cannot be claimed of an overarching theme/central idea of a story. It can be claimed for an amalgamation of events and scenes which blend in together to form a manifestation of that theme or idea. In Ahmad Khan, the Court applied this idea-expression dichotomy. By the same logic, it held that the Defendants’ web series had all the essential elements of the Plaintiff’s theme, plot, and storyline. Minus a few minor differences in the plot that did not substantially distinguish the Defendants’ web series from the Plaintiff’s story, the characters in the web series behaved in the exact same manner as the characters in the Plaintiff’s story and the entire series unfolded in much the same way as the story. The Court stated that if a person who had read the Plaintiff’s story, saw the web series, it would reasonably appear to be an adaptation of the Plaintiff’s story. The Defendants had adapted the Plaintiff’s story to a different format, namely, a web series. The Defendants’ work prima facie had material and substantial similarities with respect to the mode of expression adopted in the copyrighted work of the Plaintiff. The Court postulated that this was an ostentatious case of plagiarism. Moving on to the relief aspect, the learned judge accepted the merits of the case in favor of the Plaintiff. The Court ruled that the Plaintiff was entitled to recover damages from the Defendants but was not entitled to an injunction against them, given that their web series “Singardaan” had already garnered commercial relevance on account of having been released over a year ago on 20th January 2019. The Court asserted that the suit is set down for trial in the interest of justice and directed the Defendants to maintain an account of the profits gained from the web series from the date of its release until completion of the trial. The Court also prohibited the Defendants from making any further adaptation of the web series or changing its format in any way. Conclusion It is commendable that the Court maintained a wholesome outlook and took into careful consideration the impact of its judgment on the Defendants. The bench delineated the concept of ‘balance of convenience’, weighing it in favor of the Defendant because their work had not only been fully made but also published for a sufficiently long period. If the work was withdrawn from the internet, greater harm would be caused to them than to the Plaintiff if it was not so withdrawn. Although the Plaintiff’s work was illegitimately used, the prejudice he suffered was not irreparable, it could surely be redressed by way of damages. Therefore, the Court concluded that monetary compensation was an adequate remedy for violation of the Plaintiff’s copyright. References
 Shamoil Ahmad Khan v. Falguni Shah & Ors. COMMERCIAL IP SUIT NO. 1193 OF 2019.
 Krishika Lulla v. Shyam Vithalrao Devkatta MANU/SC/1774/2015.
 Sameer Wadekar & Anr. v. Netflix Entertainment Services Pvt. Ltd. LD-VC-70 OF 2020.
 Rintu Biju, Bombay High Court declines to stay May 24 release of Netflix web series “Betaal” in copyright infringement suit, BAR AND BENCH (May 24, 2020).
 Nitish Kashyap, Bombay HC asks makers of web series ‘Singardaan’ to share profits with Plaintiff, LIVE LAW (Jun. 1, 2020).
 Hollinrake v. Truswell (1894) 3 Ch.420.
 R.G. Anand vs. Delux Films MANU/SC/0256/1978.
 XYZ Films Vs. UTV Motion Pictures 2016 SCC OnLine Bom 3970. ©Image Courtesy: World Economic Forum, see here.
Protection of Dalits: A Constitutional Evolution
[This article is authored by Mr Ishan Fouzdar, Christ University, Bengaluru] In late October 2018, a 14-year-old Dalit girl  was beheaded by an upper-caste man whose wife said he hated the girl specifically because of her caste. The forefathers and foremothers of our Constitution envisaged an India which will fight against caste and with that vision laid down Article 15 and 17. Today, India scores a whopping 7.2+ score in the Social Hostility Index  conducted by the Pew Research Centre bagging a place in the "Very High Hostile" league. Interestingly much of the hostility is directed against low-caste Dalits, according to the U.S. State Department. Additionally, the India Human Development Survey  data for 2011-12 shows that over 27% of Indians admit to practicing untouchability, despite the practice being illegal. As MacIver wrote, “In the great book of law the state merely writes new sentences and here and there scratches out old an old one. Much of the book was never written by the state at all.” Indian customary law is a good example of this. The origins of caste lie under grey lines of RigVeda and Manusmriti (The Law of Manu) and several inconsistencies have been found regarding the origins of caste. If one ducks the question of the origin and comes to the systematization of caste, Manusmriti is held responsible. It's also interesting to note that Manusmriti made up a good part of Hindu Personal Law before Jawaharlal Nehru and BR Ambedkar pushed in the Hindu Code Bills. Chapter 8, verse 413 of Manusmriti says, "But a Sudra, whether bought or unbought, he may compel to do servile work; for he was created by the Self-existent (Svayambhu) to be the slave of a Brahmana." Chapter 8 of Manusmriti lays down clear instructions as to how the Sudras(lowest caste) should be treated. The debate of whether the draconian and inhumane Laws of Manu should have adhered was put to end by our Constituent Assembly but a tradition, normalized for over than tens of thousands of years cannot be done away with just by putting down a couple of articles. As Mark Twain said, "The less there is to justify a traditional custom, the harder it is to get rid of it”, the law had to fight and evolve continuously in order to get rid of caste. Interpretation: The Evolution of Law It’s important to understand that an article of the Constitution has much more to offer than what it says prima facie. The courts are responsible for interpreting the articles written in the Constitution and during this course of interpretation, the ambit of an article is exposed and even at times, extended. Having said that, Article 17 of the Constitution deems untouchability in any form is illegal. Article 17 was first interpreted by the Supreme Court in the State of Karnataka v. Appa Balu Ingale , as per K Ramaswamy j, “Neither the Constitution nor the Act defined `Untouchability'. The reasons are obvious. It is not capable of precise definition. It encompasses acts/practices committed against Dalits in diverse forms. Mahatma Gandhiji in his `My Philosophy of Life' edited by A.T. Hingorani 1961 Edn. at p. 146, stated that "untouchability means pollution by the touch of certain persons by reason of their birth in a particular state of the family. It is a phenomenon peculiar to Hinduism and has got no warrant for reasons or sastras". Thus, expanding the ambit of the word “Untouchability” indefinitely. The Supreme Court of India in People's Union for Democratic Rights v. Union of India  held that Article 17 can be held against private individuals also and that is it the constitutional duty of the state, to ensure that this fundamental right is not violated. In Janki Parsad and Others v. State of J&K , Supreme Court held, "Where a person is refused admission in a temple on the ground of his being a Harijan, the refusal is to be presumed to be on the ground of untouchability." Hence, one can see the evolution of Article 17 vis-á-vis the word Untouchability as it underwent interpretation on different occasions by the apex court. Indirectly, Article 17 was also linked to the Basic Structure of the Constitution in The State Of Karnataka v. Appu Balu Ingale. In Kesavananda Bharati v. The State of Kerela , SC held that The Preamble is a part of the Constitution and it can be amended under Article 368; however the basic elements of the Constitution enshrined in the Preamble cannot be amended or infringed. In The State of Karnataka v. Appu Balu Ingale case, the court pronounced, “The Preamble of the Indian Constitution imbued among its people with pride of being its citizens in an integrated Bharat with fraternity, the dignity of person and equality of status. But Casteism, sectional and religious diversities, and parochialism are disintegrating the people.[...] Adaptation of new ethos and environment are, therefore, imperatives to transform the diffracted society into a high degree of nobility for establishing an egalitarian social order in secular, socialist, Democratic Bharat Republic, "Untouchability" of the Dalits stands an impediment for its transition and its bane and blot on civilized society.” Hence, when the court held that “Untouchability of the Dalits stand as an impediment” to the virtues of the Preamble, one can virtually see the lines joining The Basic Structure and Article 17 via the Preamble. Article 14 of the Indian Constitution, which guarantees Equality Before Law has an absurd number of case laws. The SC proclaimed in E.P. Royappa v. State of T.N. , (1974) “Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed cabined and confined” within traditional and doctrinaire limits.” Also, according to the decision of SC in the Indra Sawhney v. The Union Of India , Article 14 with its dynamic facets of equality takes under its umbrella Articles 15-18 of the Constitution, hence taking Article 17 under it as well. More importantly, in the Indira Nehru Gandhi v. Shri Raj Narain & Anr  the SC very famous stated that Rule of Law contained in Article 14 is a part of the Basic Structure of the Constitution. Similarly, in Nachane Ashiwni Shivram And Ors. ... v. State Of Maharashtra & Anr. Etc. the doctrine of equality vis-á-vis Art. 14 was recognized as the basic feature of the Constitution. Hence, as a gradual development, the abolition of Untouchability in article 17 became a part of the Basic Structure of the Constitution, directly and indirectly, making it virtually impossible to infringe. Many other constitutional safeguards evolved during the course of time for the protection of the Dalit community including Article 15, 16, and 39-A. But these were safeguards for securing the growth of this downtrodden community and hence ipso facto lie outside the scope of this article. Additional to the constitution developments, two acts, namely, Protection of Civil Rights Act, 1995, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were passed to better the process of dealing with cases of atrocities against Untouchables. Conclusion Law has many sources, for example, Custom, Religion, Adjudication, etc. But in modern progressive democracies such as India laws are made by popularly elected representatives and thus ipso facto reflect the will of the people. As Duguit said, “Laws are not obeyed because there is someone to enforce them, but because they are the conditions of social living”, laws are not merely commanded but a reflection of the society. Hence, as society evolved, the law has to evolve too, or else it will be banished. Following the same principle, the Indian Constitution law has evolved according to the needs of the society and especially the downtrodden. The various interpretation of the Articles enshrined in the Constitution has widened the scope of helping and safeguard a tribe which was oppressed for centuries. But, while the law had grown to protect the downtrodden, we as citizens and part of the society need to question our sociological as well as political grounds of morality. References:  S. Senthalir, In Tamil Nadu, the beheading of a 14-year-old is suspected to be a caste crime, Available here.
 Pew Research Centre, Social Hostilities Index (SHI), Available here.
 Amit Thorat, et al., The Continuing Practice of Untouchability in India: Patterns and Mitigating influences, Indian Human Development Survey. Available here.
 State Of Karnataka v. Appa Balu Ingale And Others, AIR 1993 SC 1126.
 People's Union For Democratic ... v. Union Of India & Others, 1983 SCR (1) 456.
 Janki Prasad Parimoo & Ors. Etc. v. State Of Jammu & Kashmir & Ors, 1973 SCR (3) 236.
 E. P. Royappa vs State Of Tamil Nadu & Anr, 1974 AIR 555.
 Indra Sawhney Etc. Etc v. Union Of India And Others, Etc., 1992 AIR 1993 SC 477.
 Kesavananda Bharati ... v. State Of Kerala And Anr, AIR 1973 SC 146.
 Indira Nehru Gandhi v. Shri Raj Narain & Anr, AIR 1975 SC 2299. ©Image Courtesy: Illustration by Saurabh Singh, see here.
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