legally speaking

Tracking Legal Developments in India

[siddharthnarrain-blog]

A Victory for Access to Knowledge

In a move that will benefit million of students in India, a single judge bench of the Delhi High Court has dismissed a claim by major publishers (Oxford University Press, Cambridge University Press, Taylor and Francis, U.K. and India) that Delhi University, and a photocopy shop that was licensed to meet the needs of students, were in violation of the Copyright Act. The case (The Chancellor, Masters and Scholars of the University of Oxford & Others v. Photocopy Services & Another) revolved around the practice of study materials that students use for the courses. Students through the Association of Students for Equitable Access to Knowledge (ASEAK) and concerned academics through the Society for Promoting Educational Access and Knowledge (SPEAK) had impleaded themselves in the case.

As Delhi University, like most educational institutions in India, could afford to buy many copies of books that they prescribe for their library, parts of the materials prescribed (and sometimes whole books) are usually photocopied and distributed to students as course packs and anthologies. These readings materials form a crucial part of the students study materials, and are a way of ensuring that every student is able to have individual copies of the material that they are supposed to read.  

The main legal dispute was around the interpretation of section 52(1)(i) of the Indian Copyright Act, which provided an exception to copyright based on fair use. The manner in which the law frames this exception is that the exception applies to materials used by students and teachers “in the course of instruction”. The publishers argued that this term refers to a narrow meaning of materials used in the classroom during the lecture. The Court, however, dismissed this argument, and instead held that the term ‘in the course of instruction’ has to be interpreted broadly to mean something that the teacher tells the student to do in the course of teaching, detailed information that a student is given by the teacher to acquire knowledge. In terms of chronology it would include materials that the teacher asks students to use during the entire academic session, which includes the time from which the teacher begins to prepare for classes. This would include materials used to prepare the syllabus, textbooks that are prescribed, readings etc.

Image Source: WikiCommons

Justice R.S. Endlaw (the judge in this case) based his decision on the fact that Indian copyright law is different from other jurisdictions. The law has been framed keeping in mind that there are much larger number of students to cater to, and that the cost of textbooks for an average student in the country works out to be much higher given the average income, and purchasing power of students. As per the Court, students simply cannot afford to buy textbooks, which makes it improbable that publishers are going to see higher profits even if the copyright law is enforced to prevent students from photocopying these materials.

The Court stressed that the right to education is a fundamental right, and that exemptions for the purposes of education, research and teaching have traditionally been exceptions to copyright law. Stressing on the way technology is evolving, the Court said that even if students today take photographs of material from textbooks, and get this printed, this would also amount to fair use and therefore be exempted from copyright restrictions.

In a remarkable statement, the Court observed, “Copyright, especially in literary works, is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public”.

Comparing the facts to this case with the example of judges who pass on photocopies of relevant articles to their fellow judges or the Bar Association in the Delhi High Court which has also licensed a shop to photocopy materials for lawyers, the judges reflected on the absurdity of terming these acts as copyright infringements.

Reactions to the judgment have largely been positive, especially among the student and teacher community, who were outraged when the publishers in the Delhi High Court filed the case in 2013. There have been a few voices of caution,  who have highlighted the need for balance to ensure that the interests of the publishers are protected, but even these critics agree that this judgment is a major breakthrough for access to education in a developing country such as ours. The publishers, who went to court, have already drawn sharp criticism from teachers and students. It remains to be seen if they will risk squandering further goodwill within the academic community by challenging this judgment in the Supreme Court.

[siddharthnarrain-blog]

Dissenting Judge

In a letter to Chief Justice T.S. Thakur, senior Supreme Court judge Justice J Chelameswar has asked the Supreme Court collegium of the five senior most judges that decides on appointments and transfer of judges to make available to him in writing recommendations of each of the judges in the collegium. According to newspaper reports, in his letter Justice Chelameswar has also communicated to the Chief Justice that he will not attend further meetings of the collegium.

This letter takes on enormous significance given the recent history of disagreement between Justice Chelameswar and other judges of the Supreme Court in the Constitutional Bench decision relating to the National Judicial Appointments Commission (NJAC). In October 2015, a Constitutional Bench of the Supreme Court struck down the 99th Constitutional Amendment and the related NJAC legislation as impinging on the independence of the judiciary thereby violating the basic structure of the Constitution. Of the five judges who sat on the Bench, Justice Chelameswar was the sole dissenting voice.

The crux of J. Chelamswar’s dissenting judgment is that the Executive was trying to fix a problem with the current system of choosing judges, and by blocking this attempt the judiciary is doing itself a disservice. He cites two examples – that of Shanti Bhushan’s case (2009) which dealt with the appointment of a permanent judge to the Madras High Court, and that of the P.D. Dinakaran case (2011) where the elevation of Justice Dinakaran to the Supreme Court was publicly opposed by a section of advocates of the Madras High Court. These two examples, J. Chelameswar argues are representative of a larger institutional problem, and show that the existing system of choosing judges, laid down in the Second and Third Judges cases, which gives this power to a collegium of the five senior most Supreme Court judges, does not always work.

The Supreme Court of India at New Delhi. Image Source: https://commons.wikimedia.org/wiki/File:Supreme_Court_of_India_-_200705.jpg

In his dissent, J. Chelameswar states that although there are a number of allegations of unworthy judicial appointments there is no mechanism for an audit or qualitative analysis. He is scathing in his attack on the non-transparency in judicial appointments. Stating that “publicity is the very soul of justice”, J. Chelameswar says that the process of judicial appointments is opaque and rife with “unworthy tradeoffs”, bargaining, sycophancy and lobbying.

In his dissent, J. Chelameswar draws upon Ambedkar’s speech in the Constituent Assembly, where the then Law Minister and architect of the Indian Constitution, states that the model that was chosen for India does not give the power of appointing judges completely to the executive or the Chief Justice. This was to ensure that no branch of government was given unbridled power.

With this letter J. Chelameswar has brought back the debate around the transparency of judges into the spotlight. One of the positive outcomes of the NJAC judgment, and the legal arguments in court, was that it allowed for a more open and frank discussion around the problems with the existing system of appointments. Following the NJAC decision, the Chief Justice of the Supreme Court had stated that the court was willing to consider making the appointment of the collegium and the process of dealing with complaints against judges more transparent.

Even the most ardent critics of the NJAC  will find it hard to disagree that the current system needs to be altered to make it more accountable. The disagreement seems to lie in how exactly this should be done. One of the main grounds of opposition to the NJAC law was that it allowed for too great a role for the executive and that the amended law left the role of civil society vague. J. Chelameswar in his dissent in the NJAC case has tried to address this criticism. He suggested that the two eminent members of the NJAC panel could be selected after placing their candidatures before a full bench of the Supreme Court number of candidates.  The candidate with the highest vote and therefore confidence among the judges could be appointed.

Ideally the present government through the Attorney General Mukul Rohatgi should have thought of such balanced alternatives while drafting the NJAC law. If the government had taken more care in addressing these concerns, and incorporated checks and balances within the law itself, we would not have found ourselves at an impasse and having to choose between sacrificing judicial independence and greater transparency in judicial appointments.

[siddharthnarrain-blog]

A Discriminatory Surrogacy Law

In a move that has been widely criticized as being too harsh, and possibly discriminatory, the Union Cabinet has announced that it has cleared the draft Surrogacy Regulation Bill (2016) that will regulate surrogacy in India. The proposed law completely bans commercial surrogacy and allows only for altruistic surrogacy i.e. where the surrogate mother has to be married and a close relative of the couple involved. This move appears to be in response to concerns that the commercial surrogacy that industry has flourished in India, and is regulated by the Indian Council of Medical Research guidelines, has resulted in exploitative conditions for women, many of who are poor. Many civil society groups has raised questions related to the margin of profit that surrogacy centres were making in comparison to the benefits the surrogate mothers received and whether the surrogate mothers were signing contracts to rent out their wombs with informed consent. However, instead of looking of ways to regulate this industry and ensure a better deal for surrogate mothers, the government’s proposed law will completely shut down commercial surrogacy.

The government has, through an earlier version of this bill last year, proposed that foreign nationals not be allowed to avail of surrogacy services in India. This had led to a group of commercial surrogate mothers challenging this move in the Supreme Court. The final version of the bill, which the government has just unveiled, is a much more drastic one, extending the ban not just to foreign nationals, but to all single people, same sex couples, and live in partners, and married couples who have biological or adopted children from availing of surrogacy. The move seems to be blatantly discriminatory, and assumes that only a very small subset of married couples should be allowed to have children through surrogacy. Union Foreign Minister Sushma Swaraj, who briefed the press after the Cabinet meeting stated that unmarried couples, single parents and same sex couples are being barred from having children through surrogacy because this is against “Indian ethos”. Swaraj even took a swipe at celebrities who have had surrogate children although they already have children of their own claiming that this was now becoming “fashionable”. Swaraj went on to say that foreigners, NRIs and those who hold PIO and OCI cards would be barred from availing of surrogacy in India because “divorces are common in foreign countries”.

Swaraj’s remarks, and the manner in which the Cabinet has decided that only certain groups of people will be eligible to have children through surrogacy raised serious constitutional and legal issues. In a time when it increasingly common for single parents and unmarried couples to have children, and raise children, the assumption that it is only married couples who should be allowed to avail of surrogacy makes no sense. To paint the scenario as surrogacy being fashionable among celebrities is not just unfair, but completely tasteless. After all who is the government to decide that only some sections of society can have children through an assisted reproductive technique while another cannot. The actor Tusshar Kapoor who became a surrogate father recently, far from being an example of a “fashionable trend” is a role model for unmarried persons homosexuals, and live in couples who would like to have children.

The actor Tusshar Kapoor who became a father through surrogacy recently. Image Source: https://commons.wikimedia.org

The government instead of perpetuating myths and stereotypes about children of single or unmarried parents should be taking active measures to combat such stigma and discriminatory attitudes. To make a statement that divorce is common in foreign countries shows us how blind the government is to the seismic shifts in Indian society. Divorce rates may be much lower than countries like the U.S. and U.K. but we know that divorce applications in family courts in places like Bengaluru, Mumbai, Kolkata, Delhi and Lucknow  have risen exponentially in recent years. 

Lost in this controversy is the crucial issue of the rights and protections of surrogate mothers, and addressing the reasons why the industry was seen as exploitative in the first place. An outright ban, even with the harsh punishment of 10-year jail term that has been proposed may not be enough to push the industry underground, where it could continue illegal but completely unregulated.

Even worse, crucial debates over the rights and autonomy of women over their bodies, their conditions of living and choices they make or are pushed to make, the changing face of the Indian family, and the rights of millions of Indians who are single or unmarried for various reasons have been totally ignored by a blanket law that does not even attempt to address the complexity of these issues. Instead the government is harking back to an imagined Indian ethos, a constructed idea of how we Indians live, failing which we will be penalized.

[siddharthnarrain-blog]

Free Speech under Fire

A quick look at the news in India, and it is clear that there are many contestations around our Constitutional right to free speech and expression that are ongoing. Whether it is Outlook magazine being slapped with charges of defamation and inciting communal hatred (153A) or Amnesty International’s India Desk being at the receiving end of both sedition (124A) and 153A cases, these incidents seen in the light of the JNU episode earlier this year highlights the increasing dangers that journalists, human rights activists, students, face in expressing their opinions openly. Both 124A and 153A have been prone to misuse.

They are both laws that criminalize speech acts that tend to have an impact on public order – the former by causing ‘disaffection’ against the state, and the latter by promoting enmity between communities of people. The indiscriminate use of these laws has resulted in creating a situation where any one who airs a public opinion needs to think twice about what they are saying. It creates categories of themes, which become off limits for discussion. It allows for third parties (members of political parties, goons, self righteous folk) to hold free speech to ransom, and exercise a Heckler’s veto. A Heckler’s veto, as described in legal discussions occurs when the government restricts the speaker’s right to freedom of speech in order to prevent a third part from reacting. Thus the police, instead of protecting the right of Amnesty India to organize a discussion, file a case against them after ABVP members complained of “anti-national” slogans allegedly raised at the meeting.

Satterfield cartoon about sedition laws. Image Source: https://commons.wikimedia.org/wiki/File:Satterfield_cartoon_about_sedition_laws.gif

The Amnesty incident prompted the organization Common Cause to file a Public Interest Litigation in the Supreme Court asking the court to intervene to prevent the misuse and misapplication of the sedition laws. According to the Outlook article in question  different Sangh outfits trafficked 31 tribal girls, some as young as three years, from tribal areas of Assam, to Punjab and Gujarat. According to the article, the trafficking occurred despite orders from the Assam State Commission for the Protection of Child Rights, the Child Welfare Committee (Kokrajhar), the State Child Protection Society, and Childline (Delhi and Patiala) to these organizations by to return the children to Assam. The Assam police registered an FIR against Indranil Roy (Publisher), Krishna Prasad (Editor) of Outlook and Neha Dixit, writer of the story based on the complainants BJP spokesperson and Gauhati High Court advocate Bijon Mahajan, BJP Minority Cell member Mominul Awwal and Assistant Solicitor General Subhash Chandra Kayal Subhash Chandra Kayal.  The filing of the case against Outlook has drawn widespread criticism, and ironically the article online has gone viral.

If this was not enough, in another shocking incident, the Chhattisgarh police filed a sedition charge against a resident of Bhilai for liking a page on Facebook that they deemed anti national. This incident brings back memories of the draconian section 66A of the Information Technology Act, which the Supreme Court struck down in March 2015 in the Shreya Singhal case. The court ruling in this case that there is a distinction between “discussion”, “advocacy” and “incitement” and that mere “discussion” or “advocacy” does not amount to incitement, the standard that is necessary to prove in order to curb speech. Despite this, the police is continuing to file cases for such frivolous acts of liking, forwarding, sharing or commenting one’s opinion about a serious political situation – in this case the turmoil in Kashmir. Unfortunately it is not the law in itself that is at fault. There is enough legal precedent to suggest that many of these cases that are meant to curb speech will not stand in court. But the impact of these cases cannot be judged just by whether someone is convicted or acquitted. Once someone is dragged into the arena of courts, police stations, files, bail applications and the rest, this in itself begins to serve as a deterrent to express one’s opinion freely and without fear of the repercussions. 

[siddharthnarrain-blog]

Post Mortem of  a Violent Agitation

The violent agitation by the Jat community in Haryana in February this year brought to the fore the stark problems when an entire police and administrative machinery were brought to their knees by a protest called for by one of the state’s most powerful communities. The Jat community was protesting the lack of reservation in educational and employment. The Supreme Court, in Ram Singh’s case, had struck down the Central Government’s notification including Jats in the Central list of OBCs for the state of Haryana, Bihar. Gujarat, Himachal Pradesh, Madhya Pradesh, Delhi, Uttar Pradesh, Uttarakhand and two districts of Rajasthan. The Punjab and Haryana High Court also stayed reservation given to Jats under the OBC category for government jobs and educational institutions in Haryana.

These protests have come in the wake of powerful communities such as the Patidars in Gujarat that are now agitating for reservation, despite not fulfilling the criteria of being historically disadvantaged. The youth in these communities, finding it increasingly difficult to get government jobs and opportunities, have resorted to violent agitations and mobilized effectively to make their voices heard.

Map of the state of Haryana, where the Jat agitations took place, Image Source: https://commons.wikimedia.org/wiki/File:India_Haryana_map.svg

In a damning indictment of the state’s response to the agitation, the Prakash Singh Committee Report on the Role of Officers and Police Administration during the Jat Agitation criticised the state machinery for their callous attitude, and inability to bring the situation under control. The agitation came in the wake of deep divisions in the state as a result of this demand for reservation with calls for non-Jat communities to unite being mad e publicly by representatives of other communities in the state The agitation took a heavy toll with 30 people killed, more than 200 injured, and property worth 20,000 crores of damaged. Thirty educational institutions and 20  police chowkis were damaged. In unprecedented scenes canals that provided water to Delhi were targeted, schools and universities were attacked, and even the residence of the state’s finance minister was targeted two days in a row.

While the Committee’s report does not mention any incidents of sexual violence, the Punjab and Haryana High Court, which is hearing a case related to the Jat agitation, has taken suo moto cognizance of allegations of sexual assault on the Delhi-Ambala highway. The Haryana government initially denied that incidents of sexual violence took place, but the state police have now filed gang rape charges in an FIR related to the case of an Australian national who was travelling on NH-1 on 21 February near Murthal when she was allegedly gangraped.  Of the districts affected, Rohtak was the worst hit, and the Committee, while specifying incidents in Rohtak observed that the state seemed to have withered away in the district on 19 and 20 February.

The members of the Prakash Singh Committee interviewed a large number of respondents from the police and public, and have recorded a detailed narrative of events, with a district wise break up of the statements recorded, and detailed recommendations on steps that need to be taken to prevent such a situation from arising.

One of the disturbing observations of the Committee was the role of the police, which played a partisan role, looking away most of the time, and sometimes actively abiding the agitators. Diligent police officers wanting to take action were hindered by signals from their political superiors, who were reluctant to use force on the agitators. In damning statement, the Committee observed, “The administration could not have been more inept, the police could not have been more derelict and collusive”.

These recommendations include training of police in anti-riot drills and ensuring that every district have at least one company of police specially trained to deal with riots. The Committee also recommended that Central forces such as the Border Security Force should not be called in on a routine basis to deal with civilian agitations in states, which the local police should be able to handle. The Committee also recommended that the army should be called in as a last resort in these situations.

The Committee asked for strict action to be taken against those who disrupted traffic along national highways or important railway routes. Significantly, the Committee called for the enforcement of the F.S. Nariman Committee’s guidelines for liability for damages during riots that have been endorsed by the Supreme Court that. The Nariman Committee had recommended that a retired High Court judge or a sitting or retired District judge should be appointed a claims Commissioner to estimate damages and investigate liability in these situations. (In case of an event that spans two judges a Supreme Court judge would be appointed) Once a nexus between the event and the damage is established the damages would be calculated sing the principle of absolute liability. The actual perpetrators of the violence and the organizers of the event would share liability. Even if a fraction of these recommendations were implemented seriously, it would go a long way in acting as a deterrent against such violence, and would do justice to the amount of effort that has gone into this meticulous exercise.

[siddharthnarrain-blog]

The Beef Ban & Its Constitutional Implications

The politics of beef and the slaughter of cattle remains controversial in India, Image Source:  https://commons.wikimedia.org/wiki/File:Holy_cows,_India,_1952_(16774496077).jpg

One of the most controversial issues that have emerged in recent times in India has been the politics of beef. While it is not new for laws to regulate the slaughter of cattle, the scope of such laws has gradually widened, up to the point where even the possession of beef has been criminalized. The Bombay High Court, in a bunch of petitions that it heard together, recently decided a case dealing with a number of constitutional issues that arose from a law that regulated the killing of cattle, and the possession of beef. The Bench comprised of Justices A.S. Oka and S.C. Gupte.

The Bombay High Court decision related to a challenge to provisions of the Maharashtra Animal Preservation Act 1976, amended in 1995 (and notified in 2015). The law enforced complete prohibition on the slaughter of cattle, including within its ambit the slaughter of bulls and bullocks (the earlier version of the law only prohibited the slaughter of cows). Additionally the law criminalized the possession of the flesh of the cow, bullock or bull slaughtered within or outside the state. The punishment for violating the possession clause was a maximum of one year imprisonment and a fine of Rs. 2000. Crucially section 9B of the law shifted the burden of proof to the accused in these cases.

The government lawyers, defending the law, argued that the law gave form to the intentions of the constitutional framers who in the Directive Principles of State Policy (Article 48) have obligated the state to prohibit the slaughter of cows, calves and other milch and draught cattle. The government’s reasons for enacting this law was that cattle are useful even if they can no longer breed or work, since they provide biogas and manure.

The Court upheld the constitutionality of the Act except for two crucial provisions, which did not pass constitutional muster. The first of these was section 5(d) of the law, which criminalized the possession, and consumption of the flesh of a cow, bull or bullock even if it was slaughtered in a territory where it was legal. This provision was challenged as a violation of the right to privacy. The Court said that the right to privacy has been read into the right to life and liberty under Article 21 of the Constitution, and compared this claim to the right to sleep that has been upheld by the Supreme Court in the 2012 Ram Leela Maidan case. (this involved the police action against those protesting against corruption in the Ram Leela Maidan in Delhi)

While upholding the right to privacy, the court explained that citizens have a right to lead a meaningful life, and was protected from unnecessary intrusions into their homes. The Court said that in order to lead a meaningful life, citizens could eat the food of their choice. He state by telling citizens to eat a particular kind of food, although it is not injurious to health, prevents citizens from leading a meaningful life.

The second part of the law that the court struck down was section 9(B) that shifted the burden of proof on to the accused in these cases. The court recognized that the presumption of innocence could be shifted in cases involving addictive drugs, explosives, arms and ammunition. While deciding if the burden could be shifted or not, the court examined if such a rule would place a burden on the accused to prove a negative fact (in this case to prove that the animal was not slaughtered as per the provisions of the Act). In order to prove this negative fact, the accused would have to bear great hardship, incommensurate with the difficulty that would be faced by the prosecution in establishing the ingredients of the crime in these cases in the normal course of affairs (when the burden remained on the prosecution to prove their case). In the case it would become impossible for the accused to distinguish that the flesh in their possession was from cattle slaughtered in another state.

The court held the procedure under section 9(B) to not be just, reasonable and fair, and therefore unconstitutional. Thus the court, while upholding the law as a whole, struck down the parts that it deemed pernicious, and unable to withstand constitutional scrutiny. In effect this means that in the state of Maharashtra, it is illegal to slaughter cows, bulls and bullocks, and illegal to possess the flesh of cattle slaughtered within the state. Crucially, the court has held that the burden remains on the government to prove that the accused has acted in violation of the law. If the burden was reversed it could have led to a rampant misuse of the law to harass accused persons.

Of course this judgment by itself is no protection against the continued harassment and lynching of cattle traders and transporters. For this to stop, there needs to be a more concerted effort from the police, governments and the judiciary to ensure that in the name of protecting cattle, humans continue to be killed in India.

[siddharthnarrain-blog]

Sacrificing Free Speech at the Altar of Reputation

The Supreme Court’s decision to uphold the constitutional validity of the criminal defamation law raises a number of important legal and policy questions. The Court ruled that sections 499 and 500 of the Indian Penal Code, which criminalise defamation, and the procedural provisions including section 199 of the Criminal Procedure Code, did not violate Article 19(1)(a) of the Constitution. The criminal defamation provisions were challenged in the Supreme Court by a number of individuals and groups including the BJP member and political maverick Subramanian Swamy, Delhi Chief Minister Arvind Kejriwal, and Congress Party Vice President Rahul Gandhi. The provisions were defended not just by the Union government through the Attorney General Mukul Rohatgi, but also by other individual and groups such as the RSS. Lawyers from across the political spectrum found themselves on different sides of this legal battle.The main argument by those opposing criminal defamation law was that criminalizing defamatory speech led to a chilling effect of free speech, allowing for corporations and powerful individuals and governments to suppress criticism and dissent. They also argued that the language of the section was vague and allowed for its arbitrary use. They argued that the ability to sue individuals in the civil courts for defamation was enough, and there was no need to allow for criminal defamation. Since defamation was targeted against an individual, and not society at large, they argued, it should be dealt with by civil law, and not criminal law. Those opposing criminal defamation law argued that the exceptions that were provided to defamation in the Indian Penal Code did not include truth by itself. A statement would be protected from defamation law only if it was true, and for public good. This endangered journalists, writers, and those who were especially vulnerable to charges of defamation in the course of their professional work.

In the courtroom, the counterarguments were that civil defamation, since it involved a percentage of court fees would be out of reach for common citizens, and that in fact criminal defamation leveled the playing field, by allowing more people to invoke the law, and protect their reputation. Those supporting the validity of the criminal defamation law also pointed to the fact that defamation, unlike categories such as ‘grossly offensive speech’ that were struck down in the Supreme Court’s section 66A Shreya Singhal decision last year, was firmly ensconced in Article 19(2) of the Constitution, the exceptions to the fundamental right to free speech.  These arguments, however cannot account for the high cost of retaining such laws – the increasing use of criminal defamation laws to silence and suppress free speech. A classic example, as the recently released Human Rights Watch Report “Stifling Dissent”points out, is the hundreds of criminal defamation charges that journalists and publications in Tamil Nadu continue to face for daring to take on the government.

The Supreme Court, while upholding the validity of the defamation law, held that reputation is central to the way society is organized, and harming someone’s individual reputation, has an impact that affects society as a whole, and not just the individual. Unfortunately, as legal experts have pointed out, the Court has not backed up this claim with convincing explanations and illustrations. The court quotes texts ranging from Shakespeare’s Othello to the Bhagavad Gita, support the right to one’s reputation, and warn of the impact on society.

The Supreme Court quotes Othello - “..he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed”, Image Source: https://commons.wikimedia.org/wiki/Category:Othello#/media/File:Jos%C3%A9_Ribelles_y_Helip_-_Othello_-_Google_Art_Project.jpg

The court pointed out that many international law covenants, while protecting free speech, expressly allow for laws that protect the reputation of others. However, while translating this broad principle, the court has conflated privacy and reputation, giving examples such as an allegation related to the HIV/AIDS status of a person as an example of how statements aimed at reputation can have an impact on society.

The court spends a lot of time distinguishing between the terms ‘defamation’ and ‘incitement to an offence’ in Article 19(2), the exceptions to the right to freedom of speech and rejects the argument that defamation can only be made a criminal offence if it results in incitement to an offence. The judges justify the defamation law saying that the detailed explanations, exceptions, and illustrations, make the law very clear, and that the law is not vague, therefore allowing for arbitrary use.

In terms of constitutional provisions, the court relies on the reading that the right to reputation is an integral part of the right to life. The court uses the constitutional value of fraternity from the Preamble and the fundamental duty listed in Article 51-A to promote harmony and a spirit of brotherhood, buttress its arguments. Commentators have pointed out how this judgment is part of trend where the Supreme Court has used the right to life as a sword rather than a shield to restrict other fundamental rights, instead of enhancing them. The court’s decision is reflective of another trend- that of the unwillingness of the Supreme Court to strike down criminal laws. 

There are very good arguments for both sides of the debate around criminal defamation law. In this judgment however, the Supreme Court is unable to justify its decision to retain criminal defamation with persuasive reasoning. The trend in constitutional democracies such as the United Kingdom and South Africa has been to get rid of these laws, as the cost of retaining them is too high a burden to bear. In India, the clamour to remove criminal defamation from the statute books is bound to grow. With the judiciary declining to interfere, it is now up to the legislature to ensure that the right to free speech is not sacrificed at the altar of reputation.  

[siddharthnarrain-blog]

Elections, Speech and the Law

The election season is upon us, and as with every election, we grapple with a number of problems for law and regulation that arise especially during this time. One of these is of allegations around hate speech by politicians contesting for elections.  Recently, statistics put out by the data driven news site IndiaSpend  claimed that candidates who are in the dock for hate speech cases are more likely to win elections. The report points out that over 70 Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) currently face hate speech charges. These lawmakers facing hate speech charges are from all political persuasions, with the largest chunk from the ruling BJP, which has a massive majority in Parliament. While the exact percentages that India Spend has put out may be debatable, it is common knowledge that electoral candidates do resort to hate speech in the run up to elections to polarize voters and shore up their core vote base.

Hate speech related controversies during election time is not limited to India. The controversial statements of the front runner for the Republican ticket to contest the Presidency, Donald Trump, has led to global outrage, and petition in the United Kingdom seeking to bar him from entering the country. Trump’s controversial statements on Muslims and immigrants in the U. S. have led to both outrage and opposition, and a massive publicity and support from the constituency of voters he is targeting.   

Image from the Trump election campaign. Image Source: https://commons.wikimedia.org/wiki/Category:Donald_Trump_presidential_campaign_logos,_2016#/media/File:Trump_CAUCUS_%2824471451970%29.jpg

The most obvious example of the relationship between hate speech and elections was witnessed in Kenya in the build up to the 2007 national elections. Kenyan leaders incited violence through hate speech in the media as well as in election rallies. This led to massive post election inter and intra ethnic violence in 2007-2008 with much of this material circulating through SMSes, and the use of mobile phones and the internet.

In India a conviction under section 153A of the IPC (promoting enmity against groups) can be used to disqualify a candidate for being a corrupt practice under sections 123(3) A of Representation of Peoples Act. In addition, ‘promoting enmity between classes’ in connection with an election is an electoral offence under section 125 of the Act.  Yet the law does not seem to deter candidates as the potential gains from such speech is more than the deterrence of the law. Many of these cases are contested in courts for years, and there are rarely any convictions or serious sentences handed out to politicians in these cases. This has in turn encouraged a culture of impunity where politicians continue to spout hate speech to gain electoral advantage.

Another phenomenon associated with elections is organized trolling. The 2014 general elections in India saw the effective use of trolls, especially by supporters of the then Prime Ministerial candidate Narendra Modi to attack political opponents on social media. Such organized trolling based on political affiliation is especially evident in countries such as Russia, Turkey and India. If one stops and thinks about these forms of speech, they are closely linked, both meant to silence opposition. Hate Speech is more to do with individuals while trolling is generally a collective and planned action targeting individual users. Trolling in the 2014 general elections was also very specific to Modi supporters, and highly dependent on a politics based on personality. So far the only legal recourse one has to such attacks are the guidelines related to harassment and threats that internet companies have put in place.

Narendra Modi at a public meeting: Image Source: https://commons.wikimedia.org/wiki/Narendra_Modi#/media/File:Narendra_Modi_at_the_BJP_Public_Meeting.jpg

While there needs to be more research done on the relationship between hate speech and the phenomenon of trolling during elections, it is clear that these are both issues that the law, justice system, and civil society will have to take very seriously.  

[siddharthnarrain-blog]

The Afterlife and Possible Resurrection of Section 66A

It just over a year since the Supreme Court struck down section 66A of the Information Technology Act as violating the right to freedom of speech and expression. The law had become infamous for its misuse against political opposition and dissent over since it was introduced through an amendment in 2008. Three of the most publicized instances of its misuse were the arrest of Shaheen Dada and Renu Srinivasan for a comment related to the death of former Shiv Sena supremo Bal Thackeray, the arrest of Professor Ambikesh Mahapatra for a cartoon he circulated mocking the West Bengal Chief Minister Mamata Banerjee, and the arrest of the cartoonist Aseem Trivedi for his satire of the UPA-II regime at the time of the India Against Corruption campaign.

The Indian Supreme Court: Image Source: https://commons.wikimedia.org/wiki/File:Supreme_Court_of_India_-_200705_%28edited%29.jpg

It is this blatant misuse of the law that led to public opinion being mobilized against the law, an important factor for the way the legal proceedings unfolded. Initiated by a student of law, the Shreya Singhal judgment was praised widely as being a brave move to curb the excesses of the state. However, one section of commentators has been asking if, with the end of 66A, the courts had thrown the baby out with the bathwater. The Court’s logic in striking down this law in its entirety was that the law was worded so vaguely, allowing for its arbitrary application, that no amount of ‘reading in’ or judicial re-interpreting the scope of the law would help in this case.

Section 66A was introduced through the 2008 Amendments to the Information Technology (IT) Act, purportedly to deal with the issue of spam. However, the manner in which it was worded was much wider, resulting it being used as catch all provision, used whenever the state did not like something that was being said online, or government and ruling party functionaries being criticised or made fun of online.  Those who argued for the retention of the law said that the striking down of the law left a vacuum that would allow for people to get away with criminal behaviour online.

Interestingly the striking down of section 66A by itself has not stopped the political misuse of the internet law. As per media reports the police, in some cases, continue to invoke 66A despite it being off the statute books and in other cases, they have begun to invoke section 67A of the IT Act, which is meant to deal with sexually explicit content.

As per news reports an Action Taken Report compiled by the Delhi police and tabled by a Parliamentary Standing Committee of Home Affairs mentions the Delhi police’ suggestions around a new law that will cover speech based on race, religion etc. This law sounds like another version of the existing section 153A and 295A of the Indian Penal Code (IPC).

The Delhi police’s Action Taken Report asks for a law that will replace section 66A. Image Source: https://commons.wikimedia.org/wiki/File:Delhi_police_headquarters.JPG

The question that immediately comes to mind is why you need a medium specific law, with similar provisions to the IPC, when the penal code already applies to the internet. Hasn’t the government learn from the excesses of 66A? Of what use is enacting another law specifically meant for this medium, when the risks of its application online to stifle speech are high?

The crux of the debate is whether there is a gap, or gaping hole in the law? What is it exactly that the government fears? After all, in the one year since its demise, the internet has not turned into the Wild West.

In addition to these reports of a new 66A, the media has also reported that the government asking for servers of internet platforms such as Google, Facebook and Twitter to be located in India, so they have more control over such information and so that Indian laws can be made applicable more effectively.

While there are genuine concerns about the inability of the government to enforce its laws against internet platforms, we must guard against the state being able to have control over information that can be used to stifle dissent and free speech.  We must learn from the challenge to 66A and work towards a solution where the law is able to meet the standards that have been set by the Supreme Court. Any law that does not meet these high standards cannot be considered a solution to the problem, as it is prone to be used against those criticising the government and to monitor and control those critical of the government in power.

[siddharthnarrain-blog]

The New Frontier of Gendered Violence

Increasingly, the Internet has become the new frontier of the fight against violence against women, and gender based violence. India is no exception to this trend. To tackle this development, both the law, and policies of major internet platforms are struggling to keep up.  Prominent women online such as the journalists Barkha Dutt and Sagarika Ghosh , the activist Kavita Krishnan, and the writer Meena Kandasamy have faced horrendous backlash, being at the receiving end of nasty trolling and verbal abuse online.

The writer Meena Kandasamy, Image Source: http://flickr.com/photo/94592664@N00/8140761229 from https://commons.wikimedia.org/wiki/File:Meena_Kandasamy.jpg

The increasing attacks on women online have finally led to internet platforms take this issue seriously. Among the large social media platforms, Twitter has some of the better policies around women’s safety. Recently, the Global Head of Twitter Trust and Safety Outreach, Patricia Cartes, was in Delhi, interacting with NGOs, activists, and policy experts who have worked on gender and hate speech related issues. Twitter has set up a Trust and Safety Council with explicit guidelines around gender related abuse. Besides the guideline themselves, Twitter has instituted mechanisms that can be used by those facing a barrage of insults or abuse. These include a muting option that allows a user to not see tweets from a person for a temporary period. Twitter has also enabled a mechanism where a third party can file a complaint, which is particularly useful, when the person concerned is not in a state where they can confront the troll or complain directly about them.

In India, both the amendments to the Indian Penal Code (IPC) in 2013 and the 2008 Amendments to the Information Technology (IT) Act have tried addressing specific questions around consent and privacy that women (and sometimes men) increasingly face. One of these disturbing developments is the manner in which private material about women are circulated without their consent. This could range from photographs in which women nude, clips of sexual encounters, and even violence and rape. Section 66E of the IT Act specifically says that capturing, publishing or transmitting the private area of any person without his/her consent is a punishable offence. Section 354A IPC, which criminalises sexual harassment makes it a specific offence to show pornography to a woman against her consent, and also to make sexually coloured remarks.

While these laws are welcome additions, they operate within a larger discourse of morality, patriarchy and shaming of women for transgressing boundaries. There are increasing reports of couples whose relationship has soured, where one partner (usually the man) who puts up videos and images online without the other persons consent. This is commonly referred to as “revenge porn”. In fact, it was an MMS clip circulated by the boy without the girls consent by a DPS student and uploaded and sold by an engineering student on the online shopping forum Bazee.com that led to the arrest of the MD of Bazee, the Delhi High Court applying strict liability and upholding the legality of his arrest , and consequently to the Central government enacting section 79 of the IT Act that provided internet intermediaries protection against liability unless they have actual knowledge of this material. In the Shreya Singhal judgment in 2015, the Supreme Court has interpreted ‘actual knowledge’ to mean either a notification from the appropriate government or a court order has been passed asking it to remove or disable such material  (check the exact words).

In India, we find another version of this, a disturbing phenomenon called rape videos where perpetrators of rape, put up videos, and share this material online. The Hyderabad based activist Sunita Krishnan brought this to light nationally when she outed the perpetrators by editing these and removing the images of the women, and putting up the images of the men perpetrators. Her NGO Prajwala also filed a case before the Supreme Court asking for action to be taken. This case has resulted in a CBI enquiry, and the arrest of some of the perpetrators.

Cast of Masaan. Image Source: https://commons.wikimedia.org/wiki/File:Suresh_with_Star_Cast_of_Movie_MASAAN.JPG

The incident where the Union Human Resource Development Minister Smriti Irani found a hidden camera in Fab India changing room in Goa, show us how the pervasive use and affordability of technology has resulted in situations where both law and ethics have to step in. These developments have been reflected in cinema too, with films such as Love Sex aur Dhoka, Dev D, Masaan, and Dhrishyam all weaving these contemporary issues in their narrative. With the increasing use of social media and increased access to surveillance technology, the legal and ethical debate around gendered violence online has become a crucial issue that all of us need to be aware of.

[siddharthnarrain-blog]

Rajbala & the (Un) Equal Right to Contest Elections

One of the biggest embarrassments that the government faced in the Budget Session of Parliament was the amendment to the President Pranab Mukherjee’s address that was passed by a vote of 94 to 61 on the insistence of the Opposition parties related to the amendments to the Panchayat Raj act in Haryana. The Opposition, through the amendment expressed its concern over the threat to Indian democracy by the exclusion of large number of people, especially from the scheduled castes from being able to contest elections. The legislation in question was challenged in the Supreme Court, but in a shocking judgment (Rajbala & Ors. v. State of Haryana, a Division Bench of the Supreme Court (Justice J .Chelameswar and Justice Abhay Manohar Sapre) upheld the validity of the law.

Pranab Mukherjee, President of India: Image Source http://www.flickr.com/photos/ustreasury/7043412167/, https://commons.wikimedia.org/wiki/File:Pranab_Mukherjee_2012-04-03.jpg

The law was challenged as violating the right to equality guaranteed by Article 14 of the Constitution. The Haryana Panchayat Raj (Amendment) Act added a list of factors to already existing disqualifications for persons who wish to context elections to the panchayat. Of these factors, the most controversial were the minimum educational qualifications, and the disqualification based on non- payment of loans and a lack of a functional toilet in one’s residence.

The thrust of the petitioners argument was that these qualifications created two classes of candidates, based on their socio-economic background, and what it did in effect was to disproportionately impact those from scheduled castes, and those from economically weaker sections of society, as they were much more likely not to meet those standards.

Our Constitutional framework under Article 243F allows for the legislature to add disqualifications related to the contesting of elections. The Supreme Court, in Rajbala,touched upon the question of whether the right to context elections is a statutory or constitutional right, and reaffirmed its own position that it was a constitutional right.

However, after laying this groundwork, it inexplicably, and against the weight of evidence, held that the law does not violate Art 14. Controversially, the court held that the fact that a law is arbitrary by itself does not mean it is constitutionally inform. After citing damning and string empirical data to show how the law will disproportionately impact the poor and those from the  Scheduled Castes, the court goes on to justify the law.

Training of Panchayati Raj Institutions, Mewat District, Haryana. Image Source: https://commons.wikimedia.org/wiki/File:Training_of_Panchayat.jpg

As per the amendments to the Haryana law, the minimum qualification to contest elections was matriculation, for women and Scheduled Caste candidates it was middle pass and for women Scheduled Caste candidates it is 5th pass. As per the court, this would disqualify more than 50% of the candidates from the poorer sections of society who would normally have contested, 68% of Scheduled Caste women and 41% of Scheduled Caste men would be ineligible, and 50 % of eligible women in general and would be ineligible. The question before the court was whether a law that disqualifies a large number of voter population and denies their right to contest for various offices is discriminatory under Article14? i.e. Does this create two classes of voters, those with and those without educational qualifications?

Despite the staggering proportions, and the terribly unjust implications of this rule, the court upheld the law. It held that “It is only education which gives a human being the power to discriminate between right and wrong, good and bad” The court held that prescribing educational qualifications is not irrelevant to the better administration of panchayats.

On the question of disproportionate impact of the law, the court gives a terrible reason, saying that it is not a question of number, but a constitutional assessment about suitability of persons belonging to these classes to hold constitutional office.

The Court uses a similar logic (or lack of it) to justify the rule related to debts and toilets. Even though a large number of rural poor suffer from indebtedness, the court says that it is unlikely that these sections of people would contest panchayat elections as they were too poor to do so anyway. And to top it all, the court held that since it was the primary duty of a civic body to maintain sanitation, those who followed basic norms of hygiene, could not be disqualified from contesting a civic body.

Contrast this development to the election of supporters of corporation in a the Kizhakkambalam panchayat in Kerala, where the corporate charity has actively campaigned for, and managed to get candidates who support them win 17 seats to the local panchayat. One version of events is that Kitex’s decision to context was linked to allegations related to effluents discharged by the company’s manufacturing unit into the Periyar valley canal.

Surely there is something seriously wrong with a situation where in one part of the country, the poorest and least powerful sections of our society are being disqualified from contesting under the veneer of law, and powerful cooperation’s are able to campaign for and get persons elected to panchayats in another part of the country. The Rajbala judgment is in desperate need of review, if one were to be able to continue to talk about the right to equality guaranteed under our constitution with a straight face.

[siddharthnarrain-blog]

The JNU Episode and the Many Ironies of Invoking the Sedition Law

In the midst of the threats to the JNU Student Union President Kanhaiya Kumar’s life in the form of bounties offered publicly by a BJP Yuva Morcha Member Kuldeep Varshnay and the Purvanchal Sena President Adarsh Sharma, it is hard to miss the irony of the manner in which the law has been mobilized in this case. For allegedly making provocative statements within the university precincts, the JNU students face charges of sedition (section 124A of the Indian Penal Code (IPC)) , a serious charge that is non–bailable and has a maximum punishment of life imprisonment. In contrast the Delhi police have reportedly booked Adarsh Sharma for defacing public property.

Similarly, the lawyers who openly attacked Kanhaiya in the premises of the Patiala House Court, and have on record stated that they will assault him if given a chance, face the charge of affray (sections 159 and 160 IPC). Affray is a defined in the law as an unpremeditated fighting in a public space that tends to disturb the public peace. It is generally understood to be a mutual fight in a public space that leads to alarm and terror if the public. Indian courts have held affray to mean something more that a wordy quarrel and needs both parties to be involved. Affray is a minor offence, is bailable, and carries with it a punishment of a maximum of one month.

JNUSU President Kanhaiya Kumar, Image Source: WikiMedia Commons, Author: Hemanth5432

It is difficult to understand how the lawyers beating up Kanhaiya (and journalists covering the events) publicly amounts to affray given that this was not a mutual fight. How is that physical violence carries on in the glare of the public is being treated so leniently whereas an alleged speech is being treated so seriously. How is it that a threat to Kanhaiya’s life, in the form of a bounty being plastered in parts of Delhi so blatantly by a group and individuals who are openly saying so, is being compared to public nuisance, whereas an event questioning a death sentence in a judicial pronouncement has attracted the heavy hand of the state, and the dreaded law of sedition.

What is it about sedition, that despite its tainted history, we continue to keep the law on our statute books, and invoke it from time to time?  Shashi Tharoor, in the Winter Session of Parliament last year had introduced a private members bill asking for the amendment of the sedition law. Tharoor’s Bill proposes an amended law as per which sedition is legislatively circumscribed to only include speech that directly results in violence or incitement to violence. This would bring the wording of the law in line with how sedition has been interpreted in courts. After all, something that became clear in the JNU controversy was the way the word sedition was bandied about by the public, lawyers, police and even judges. This despite the law clearly defining sedition and circumscribing its meaning.

It is only because the meaning of sedition was so narrowly defined that the law survived constitutional scrutiny. The Constitutional Bench in Kedarnath Singh stated that it upheld the constitutionality of the law since it was defining sedition while curtailing its meaning and limiting its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. The Supreme Court has clearly said that if sedition were more loosely defined it would survive constitutional scrutiny.

The events of the last few weeks are important reminders that we need to think carefully about the relationship between speech and violence. Can speech be equated with action, and in what circumstances? How proximate should be the link between speech and violence. Are there circumstances when the law should proscribe speech, event though it does not result in violence? Can the law criminalize speech for hurt sentiment, and what does it mean to say that someone should be arrested for hurting the sentiments of people?

Portrait of Gandhi: Image Source: https://commons.wikimedia.org/wiki/Mohandas_K._Gandhi#/media/File:Mohandas_K._Gandhi,_portrait.jpg

There are no easy answers to these, but lawmakers and courts across the world have in different contexts drawn bright lines, and come up with a number of legal principles. One of these is the principle of proportional response?  Is arrest under sedition law, and police force in a campus proportional to the offence caused? Further, international human rights and criminal law clearly points to taking into account the position that the speaker occupies, and the impact of the law, not just its content itself. Going by all these factors it becomes very clear that the use of sedition law in this case was completely uncalled for. It also prompts the larger question: Is there a need for a sedition law at all? After all sedition was introduced and used extensively by the British against nationalist leaders such as Tilak, Gandhi and Annie Besant. That is the biggest irony of all given that it is this very law that is being used to counter supposedly  ‘anti-nationalist’ speech.  

[siddharthnarrain-blog]

Tackling Discrimination Through Law

The tragic death of Rohit Vemula, the Dalit student who committed suicide in the face of the harsh actions of an insensitive university bureaucracy, has brought into sharp focus once more, the need for a wider debate around an anti-discrimination policy and law in India. The Constitution, in Article 15 (2), protects against discrimination based on religion, race, caste, and place of birth, and specifically outlaws restrictions on access to shops, public restaurants, hotels, and places of public entertainment; and in the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public. Article 16(2) prohibits discrimination with respect to state employment.

Part III of the Indian Constitution that guarantees the right to equality and non-discrimination: Image Source: Wikimedia Commons

However, these constitutional rights have not translated into a legislation that covers discrimination across a spectrum of grounds. Instead, what we have are specific laws that have been enacted to deal with discrimination against particular communities including the Protection of Civil Rights Act 1955 and the Scheduled Castes/Scheduled Tribes (SC/ST) (Prevention of Atrocities Act), 1995. The 2016 amendments to the SC/ST (Prevention of Atrocities) Act have strengthened the cope of the law criminalizing a range of specific types of discrimination that persons from the SC/ST community face in India. The law replaces the provisions of the 1995 SC/ST Prevention of Atrocities Act, by widening and strengthening the provisions, and jettisoning some aspects of the old law.  These include provisions that outlaw social and economic boycott of the SC/ST community, an important move that addresses a pernicious aspect of discrimination.

The amended law also specifically prohibits making members of the SC/ST community or permitting them to engage in manual scavenging, a practice that has been outlawed in India, yet continues to be common. The law also specifically prohibits compelling persons who are SC/ST from digging graves or disposing off human carcasses.  Under the amended law it is criminal to dedicate women from the SC/ST community to a deity as a devadasi or a similar practice.

The amended law has an entire chapter on the rights of victims and witnesses which are aimed at protecting victims and witnesses from intimidation and harassment during the legal trial, as well as to prevent discrimination within the legal system that would defeat the purpose of the law. The law allows for state High Courts to set up Special Exclusive courts to deal with atrocities against SC/STs. It has also attempted addressing the problem of delays in trials by mandating day-to-hearings in these cases, and that the trial be completed within two months as far as possible.

A still from Fandry, an award winning Marathi film that explores the subject of caste discrimination. Image Source: Wikimedia commons, https://commons.wikimedia.org/wiki/File:Fandry_movie.jpg

The provisions of the SC/ST amendments, especially the boycott provisions resonate strongly with attempts to initiate discussions around an anti-discrimination law for the state of Delhi titled the draft Delhi Equality Bill 2016.  This draft bill, applies to multiple forms of discrimination, including discrimination against Dalits, Muslims, disabled persons, persons from the North East, LGBT persons, unmarried couples and non-vegetarians. It defines the term boycott more broadly than the amended SC/ST Prevention of Atrocities Act to include not just social and economic boycott, but forms of political, cultural and other forms of avoidance. The draft bill also outlaws segregation of SC/ST persons, acts which do not amount to boycott but are nevertheless unacceptable- preventing people from marrying, eating, socializing, becoming friends or living with a particular group of people.  As per this model, anti-discrimination law will largely provide civil remedies.

The law covers both ‘direct’ discrimination (acts that are prima facie discriminatory) and ‘indirect’ discrimination (acts that put one group at a disadvantage without being prima facie discriminatory). A significant aspect of the draft law is that it extends the application of the law to discrimination in what has so far been considered in the private sphere, and therefore outside the purview of the right to non-discrimination guaranteed under Article 15(2). It includes private sector organizations and undertakings, landlord-tenant relationships, political parties, NGOs, clubs, personal law boards, workspaces, panchayats and even jamaats (traditional hijra authorities) within its ambit.

Interestingly the draft law seeks to get wider acceptance by allowing for anyone to be potentially discriminated against irrespective of whether they are in a majority of minority. By doing this, the draft law recognizes that there are shifting majorities (a majority religion in one area need not be a majority in another or in perpetuity). It also allows for a larger section of the public to claim and take ownership of the law.

The amendments to the SC/ST Prevention of Atrocities Act, and the draft Delhi Equality Bill serve as two different models - one criminal and the other civil, one that is specific to one kind of discrimination, the other attempting to address multiple forms of discrimination. For communities demanding similar protections, these serve as important models that have thrown up rich ideas, and legal categories that need to be debated and engaged with.

[siddharthnarrain-blog]

Revamping the Censors

A committee headed by filmmaker Shyam Benegal will review the role of the Central Board of Film Certification (CBFC), the government body in charge of previewing and certifying films before they are released.  The Information and Broadcasting Minister Arun Jaitley’s decision to constitute this committee has led to varied reactions. Critics have panned this move as doing nothing new, especially when a number of committees in the past have already suggested changes to the powers and functioning of the CBFC. These include the recommendations of the Mukul Mudgal Committee set up by the UPA government, and the former CBFC chairpersons Leela Sampson and Vijay Anand. None of these recommendations have been implemented so far, and it is no wonder that questions are being asked about that the Benegal Committee will be doing that is different from its predecessors.

Shyam Benegal in his Mumbai Office (2010). Image Source: Commons.wikimedia.org. Author: Satyen K. Bordoloi

In India, films are one of the few mediums subject to pre censorship- the board decided whether a film is suitable for viewing before the public gets to see the film. The filmmaker K. A. Abbas challenged this power of the CBFC to pre-censor films in the late 1960s. Abbas, whose film A Tale of Four Cities was given an “A” certificate by the CBFC, because of a scene that showed a red light area in Mumbai, took the matter to court. He not only challenged the censor board’s decision in his matter, but also argued that the system of pre-censorship was inimical to the constitutional right to freedom of speech and expression guaranteed under Article 19 (1) (a) of the Indian constitution. Unfortunately, the Supreme Court ruled that pre-censorship was acceptable. The Court stated that cinema was a medium that has the potential to affect the viewer in a manner that was different from other media. In their oft quoted description, the judges explained that the unique appeal of the motion picture lay in its versatility, realism and appeal to both visual and aural senses that made it more true to life than other forms of representative art. 

The current NDA government has been in the eye of a storm for many of its political appointees. These include members of the CBFC, and the head of the Films and Television Institute of India (FTII) Gajendra Chauhan, a decision that sparked student protests, and led to severe criticism of the government. The move by the current Information and Broadcasting Minister Jaitley to constitute the Benegal Committee, can be seen as a respond to the such criticism and to those who see the NDA government as being conservative.

Nihalani’s stint as the CBFC chief has left a lot to be desired. His initiative to remove cuss words and the brutal cuts made to the intimate scenes in the latest James Bond film Spectre, have not endeared him to the cinema going public in India. The system of film censorship in India is in contrast to the USA, where the Motion Picture Association of America (MPAA), an industry body representing major Hollywood studios, self regulates through a film rating system that it has devised. However, even within this system, there are a number of questions that have been raised by those who question the credentials of, and secrecy behind the persons who are viewing and deciding on the ratings, as seen in the powerful documentary “This Film is Not Yet Rated”.

Official Logo of Spectre: http://www.007.com/spectre-world-premiere/Image Source: Commons.wikimedia.org

Given all of this, it is essential that the government revamp the current system of film certification. The first question that needs to be answered is whether we need a censor board or a certification body. If what we need is a body to certify films, then there is no question of giving the CBFC the power to enforce cuts. Even a certifying process must be transparent with clear reasons stated for giving ‘A’ certificates.

The anthropologist William Mazzarella, in his book “Censorium: Cinema and the Open Edge of Mass Publicity”, has pointed out that even very liberal persons, once they get on the censor board, begin justifying their decision to cut films, stating that the masses or a certain class of audience is not sophisticated to understand or react appropriately to explicit content. This is an old argument that infantilises large sections of our cinema going public. In response to a very similar question posed to him by the Indian Cinematograph Committee (ICC) in the late 1920s, by the British who were concerned about Indians being exposed to cinema (particularly Hollywood), Lala Lajpat Rai replied that he did not want Indians to be growing up in a nursery, and that the Indian cinema going public should be exposed to all influences so they could arrive at a better judgment. Any attempt to revise the current censorship regime must take his words very seriously.

[siddharthnarrain-blog]

The 377 Battle: The Court Awakens

There are few issues before the Supreme Court that have had such a strong emotive appeal, generating interest globally, as the legal battle against section 377 of the Indian Penal Code, the law that criminalises homosexuality in India. A three-judge bench of the Supreme Court comprising the three most senior judges on the court -- Chief Justice Justice T.S. Thakur, Justice Anil R. Dave, and Justice Jagdish Singh Kehar set to hear curative petitions that have been filed challenging the Supreme Court’s decision in December 2013 when it held section 377 to be constitutional, but said Parliament has the power to change the law.  At this stage the judges have three options - they could decide to hear the matter, and begin the proceedings immediately, they could decide to hear the matter and post it for another date, or they could dismiss the case. If the case is dismissed, then opponents of the law will have to wait until a fresh case is filed in the courts.

The court hearing comes just a over a month after Lok Sabha MPs in the Winter Session of Parliament the voted down a motion to discuss a private members Bill drafted by Congress MP Shashi Tharoor, that asked for section 377 to be amended to remove from its ambit consensual sex between adults. The MPs’ refusal to even discuss the bill, let alone consider passing it, demonstrated that it is the judiciary that is best placed to consider the constitutionality of this law. Left to elected members of the legislature, section 377 is unlikely to be changed soon.

Shashi Tharoor during the World Economic Forum’s India Economic Summit, 2009. Image Source: http://www.flickr.com/photos/worldeconomicforum/4091952773/

Interestingly, the court hearing coincides with the India release of Hansal Mehta’s film Aligarh, based on the life and death of Aligarh Muslim University (AMU)’s Professor Ramchandra Siras, who committed suicide after he was expelled from the campus of the university, because of an unethical sting conducted in his residence on campus where he was filmed having sex with a man. Although Siras challenged the university’s decision to expel him from the campus successfully in the Allahabad High Court, he committed suicide soon after. Siras, who was the head of the department of modern Indian languages at AMU, took on the role of an activist in the short span that this episode played out, and publicly talked about the difficulty of being gay in a conservative environment.

Professor Siras’ tale reflects the lives of millions of LGBT persons in India today. Faced with the prospect of societal censure, and laws that criminalise consensual sex, LGBT persons continue to bravely speak up about the discrimination they face, and demand equal rights. The story of Professor Siras reflects the core argument that has been made in court against section 377 – even if it is difficult to gauge the exact number of arrests made under this law, the fact is that the law creates an atmosphere legitimising discrimination and abuse of LGBT people. It sends out a message to people that they are unequal, and there is something wrong with them. It allows for quacks posing as psychiatrists to prescribe electric shock therapy to homosexuals in order to ‘cure’ them.

Protestors demanding the repeal of section 377 IPC at Town Hall during the Bengalure Pride March, 2008. Image Source: On File with Author

It is apt then, that the petitions before the Supreme Court are asking for the judges to cure the defects in the judgment laid down by the same court in 2013. These defects, the petitions argue would lead to such a gross miscarriage of justice, that the court must used its powers and correct its previous decisions. The curative power of the court is a recent judicial innovation, and this case in some ways is a test of how this power is exercised. Will the Supreme Court use this power to rectify its mistake in 2013 completely ignoring reams of evidence placed before it on the way in which the law impacts the LGBT community, held   that there was insufficient evidence of discrimination against what it termed “a miniscule minority”.

The struggle for LGBT rights in India is a relatively recent political battle that has galvanized support from a wide spectrum of people across ideological boundaries, and cutting across barriers of age, language and class. The colourful pride marches; flamboyant imagery, the determination and enthusiasm with which this battle has been waged have won the minds and hearts of many in this country. Whichever way the court goes, the gains made by the LGBT movement cannot be reversed that easily. Thousands of people continue to come out every day, and law or no law, there is no way that LGBT persons  can be forced back into the closet.

The stage is set for the final scene in this long emotive legal battle that has lasted for over a decade. It will be ironic though if the political struggle for LGBT rights is not accompanied by appropriate legal change. The Supreme Court’s decision in 2013 stands out like a sore thumb among its much talked about judgments, including its 2014 NALSA decision on the rights of transgender persons. It remains to be seen if this bench of the Supreme Court will take the courageous step of correcting this anomaly.

[siddharthnarrain-blog]

Public Order, Policing and the Muzzling of the Internet

The Gujarat High Court, in a decision (Gaurav Sureshbhai Vyas v State of Gujarat) that portends greater restrictions on speech, has upheld a state government ban on mobile internet in cities across Gujarat during the Patidar agitation. The Gujarat government had shut down mobile internet in cities across the state for many days to control the agitation. The Gujarat government claimed that rumours spread through social media platforms such as Whatsapp, You Tube, Facebook and Twitter helped fan the violence on the state. This was not the first time that the Gujarat government had resorted to this step. In 2014, in response to communal riots in Vadodara, the state government shut down Internet services in the city for a few days.

The Gujarat High Court case was filed by a law student challenging the orders of the government. A Division Bench of the High Court, comprising of Justices Jayant Patel and N.V. Anjaria, in a decision shorn of any serious concern for the free speech rights of the citizens of the state, justified the government’s internet ban, on the ground that it was in response to a serious public order disturbance in the state. Even if this were the case, the crucial question before the court was why the government had resorted to using section 144 of the Code of Criminal Procedure (CrPC), a law that is usually invoked to prevent physical gatherings in riots situations, instead of section 69-A of the Information Technology (IT) Act, which has been enacted for the express purpose of blocking content on the Internet.

Part of the reason may lie in what the government was trying to do. The government was not just trying to block access of information or preventing material form being read or websites from publishing material, but it wanted to prevent people from mobilizing through Whatsapp groups and other means through the Internet. As per the court, while section 69-A IT Act could be exercised to block certain websites, section 144 CrPC may be issued to persons who are the source of extending the facility of Internet access. Thus the government action related to the internet is aimed at targeting the persons who were circulating and forwarding such information. In a sense the court has done away with the distinction between the virtual and the real.

Whatsapp, like Facebook, is an example of a platform that cannot be quite easily classified as public as messages on Whatsapp are not available to anyone to view, nor is it always completely private communication, given that much of the conversation takes place through large groups. The government attempting to control communication on this platform using section 144 directly, to take preventive action in the name of public order.

The Gujarat High Court while dismissed the arguments against the ban, stated that the government had in fact applied its mind to the ban since it was only targeted at mobile internet and not all forms of communication over the internet such as broadband. Given that mobile internet is one of the most widespread methods of internet use today, this justification makes no sense. Banning mobile internet can surely not be a nuanced approach to the problem, it removes all types of content, and restricts the means to counter rumours.

Even as the Whatsapp group comes to stand in for the crowd or the public, the Whatsapp moderator is being tagged with the legal responsibility even though he or she may have nothing to do with the members. Increasingly Whatsapp moderators are being prosecuted for messages that are sent through the groups. In Gujarat, Hardik Patel, the most prominent leader of the Patidar agitation, moderated a large number of Whatsapp groups. The government’s aim is to fix responsibility on the person moderating the group for content posted by any of its members. One justification for such action could be that the moderator becomes a certain type of intermediary, who is under the duty to exercise due diligence related to content posted on the group, but at the same time does not enjoy any protection that would be granted to platforms such as Facebook or Google, who are protected by a standard of ‘actual knowledge’ laid down under section 79 of the IT Act. As per this standard an intermediary is not ordinarily liable for third party content on their platform unless it has actual knowledge. The term actual knowledge has been interpreted by the Supreme Court in the Shreya Singhal decision to mean upon receiving a court order or being notified by an appropriate government or agency.

What the High Court’s decision has done is to have created a precedent where other state governments are likely to begin using such extreme measures to tackle what they perceive to be law and order problems. It is incumbent on governments to take the least speech restrictive measure in situations where they may be forced to take action to restore public order. Shutting down  the Internet over mobile phones cannot qualify as such a measure. The government must think of less speech restrictive methods of dealing with such situations, measures that are a mixture of public education and restrained policing.

[siddharthnarrain-blog]

Legislating Gender Identity

In the next few days, The Rights of Transgender Persons Bill is likely to be tabled in the Lok Sabha. The Bill was passed by the Rajya Sabha in April 2015, the first time in over four decades that that the Upper House has passed a private members bill. Drafted by DMK MP Tiruchi Selva, the bill aims at laying down a national framework around transgender rights, building on the Supreme Court’s 2014 NALSA judgment in which the court recognised the legal rights of hijras including the right to choose a third gender.

While the Bill managed to get the support of cross section of parties in the Rajya Sabha, it almost did not see the light of day Social Welfare and Empowerment Minister Thawar Singh Gehlot had tried getting the vote adjourned saying that his ministry was drafting its own bill on this issue, and that they needed clarifications from the Supreme Court before going ahead. However Mr. Silva did not relent and insisted that the bill be voted upon. The BJP leader and Minister of Finance and Corporate Affairs as well as Information and Broadcasting, Arun Jaitley, then intervened remarking that the bill covered an issue that should not be divided along party lines, as it was an issue that everyone supported. It was after this that the bill was voted on, and received overwhelming support from the MPs present during voting.

As of now it remains to be seen if the government will support the private members Bill in the Lok Sabha, where it has a majority, or if it will come up with its own version which it will insist on. Either way, there must be a discussion on some clauses and deficiencies of the bill. As per the bill, the government has to ensure steps for reasonable accommodation i.e. all steps to ensure that trans persons enjoy the same benefits as others but subject to there being no undue hardship to government. The bill defines ‘discrimination’ widely and covers any distinction or exclusion or restriction, which impairs the recognition on equal basis of all human rights and fundamental freedoms and includes denial of reasonable accommodation. Most importantly, the bill defines ‘transgender person' to mean a person, whose sense of gender does not match with the gender assigned to that person at birth and includes trans-men and trans- women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of indigenous cultural identities such kinnars, hijras, aravanis, joggappas.

Members of the Karnataka Transgender Samithi addressing the press on the Rights of Transgender Persons Bill in New Delhi. Photograph by Siddharth Narrain

The bill ensures two percent reservation for transgenders in secondary and higher education. It mandates separate HIV/sero surveillance centres for transgenders, free SRS (sex reassignment surgery), and barrier free access to health care. The bill institutes commissions at the state and central level that will have the power to coordinate government action, take up complaints, intervene in courts, and identify existing laws that are inconsistent with this law. This means that this mechanism could potentially be used to identify and pressure the government to repeal or amend laws that criminalize of transgenders including laws such as the controversial section 36A of the Karnataka Police Act.

While there are many positives with the bill, there are also a number of concerns. The bill does not speak about the rights of inheritance and adoption. It dilutes the reservation framework laid down by the NALSA judgment. It also uses the rescue and rehabilitation model that could lead to transgenders being out in state custody against their will. The bill does not lay out a framework for self identification for transgenders to access the schemes that the government is providing and to enable them to change their gender identity without bureaucratic hurdles.

It is important that these concerns be discussed and sorted out through the legislative process. If the government intends to propose its own bill, then it must take into account these concerns. While the discussion in the Rajya Sabha was remarkable in that it was a public show of unity among political parties on the issue, it was also marked by expressions of pity and sympathy. Transgender rights activists have struggled to ensure that those supporting their cause move away from a framework of benevolence to that of recognition of rights that are inherent to every person, rights guaranteed by the Constitution.

Our lawmakers must remember that they are not bestowing these rights; they are only recognizing what has been already guaranteed by the Constitution. Only then will they be able to have a genuine engagement with the range of issues that transgenders face in India. After all it is not about ‘us’ granting transgenders rights because we feel pity for ‘them’, but it is about transgenders fighting for their rights and winning important political and legal battles, that have brought their struggle into the well of Parliament.