Mining in Goa has reached a stalemate and this stalemate needs to be resolved. It is very important to do a sort of SWOT analysis of what is local for the state of Goa to have sustainable growth heading towards surplus and continue to contribute to the state GDP.
Goa with its 15 Lac population, its major income resources are tourism and mining and these can be complementary to each other and need not to be at logger heads with each other and that is where the beauty lies in the policy making that we are able to strike a balance between the two. At this point of time, Goa is having double whammy. The COVID 19 had adverse impact on tourists visiting Goa and the closure of mines has dimmed the chances of the State to contribute to the vision of five trillion economy of the country. Mining came to a grinding halt in Goa from 16th March 2018 after the Supreme Court quashed 2nd renewal of 88 mining leases and imposed ban on entire mining operation.
The issues of concern to be immediately resolved are as follows:
1. The concerns of Environmentalists
2. Geographical Location & Geological emplacements
3. Mining & allied activities challenges
4. Legal interpretation of the two major acts Goa Daman Diu Abolition and Declaration as mining lease act 1987 which is commonly known as Abolition Act 1987 and the MMDR Act 2015 and its amendment of 2020 to be read along with the court directions,
5. The impact on Economy due to non-resolution of stalemate on the employment, lowering of income and that of state GDP
6. How to restart by consistent and credible holistic approach to boost the economy of Goa and Unlocking stalemate
1 . The concerns of environmentalists:
The concerns of environmentalists can easily be addressed as adopting appropriate technology and methodology, mining can be very environment friendly. That can be insisted upon and monitored. A well laid out plan with bench marking to ensure that during mining operations the environment protection measures are adhered to, a systematic dedicated arrangements of dumping of waste and reclamation of land post mining to be a part of agreement between the miners and the State.
In 2015, when Supreme Court has given a verdict that dumping outside lease area is not allowed unless the provisions in the Rules and Acts are made available as that had been an age old practice of Goa iron ore mining as the lease hold area of Goa iron ore mining is very small. On an average the lease areas are about 70-75 acres as compared to much larger lease areas greater 100 hectare in other parts of India. This brought in challenge of re-handling of this waste material disposed over the mineralized zone and adds to the cost of production. Thus a clear arrangement of dumping of waste is to be laid and executed.
Goa did have a history of environment friendly mining and notable good practices were demonstrated at international forums as well. ISO 14001 Standards and independent Mineral Foundation of Goa were early start ups. Thus, miners of Goa are coconscious of the issue and with a well laid out plan with bench marks have endeavor to achieve the same. These norms will ensure that mining do not cause harm to the locality and to the beauty of Goa and yet add to the economy.
2. Geographical location & geological emplacements
Goa has been trying to find a place in international markets, mostly to Japan, China, South Korea and Europe. The nature of its Geographical location and its geology, that is a low grade hematite ore, that works very well to blend with higher grades sourced elsewhere by major steel producers and thereby enable Goa to compete internationally,
Goa is well-known for its iron and manganese ores. Bauxite and laterite are the other minerals produced in the State. Resources of major minerals in Goa as per National Mineral Inventory published by IBM as on 1.4.2015 are as follows:
In Goa iron-ore is mostly low grade siliceous in nature with iron contents ranging from 50%-58%Fe, Alumina & Silica combined varies from 10-12% & mostly occurs in powdery form. As such Goa has inferior quality of iron ore deposits.
It is important to understand the business model of Goa mining industry and how it is different from business model of rest of India. The five parameters, to compare the Goa mining industry, are:
• Quality and quantity of the ore,
• Strip ratio,
• Requirement of beneficiation facility,
• Transportation methodology and
• Product portfolio.
The First parameter is “quality and the quantity”. The total geological resource base for iron ore of Goa is to the tune of 1.45 billion ton, out of which almost 82% is hematite ore and rest 18% is magnetite ore. Bulk of the magnetite deposits however within protected areas(WLS). This corresponds to almost 5% of total India’s hematite resource, other states like Odisha contributes almost 37%, Jharkhand 24% and Chhattisgarh 22% and Karnataka 11%.
On the quality front, Goa iron ore the Fe ranges from 50%-58% (Average grade is 54-55%Fe), Alumina plus Silica will be around 10-12% , inherent moisture will be in the tune of 10% and it’s mostly powdery ore. Goa has inferior quality of iron ore deposits as compared to other major iron ore producing states of India.
Second parameter is Strip Ratio, in general strip ratio means in removing 1 ton of ore how much waste needs to be removed. So for the Goa iron ore mining the strip ratio is as high as 1:4, compared to other states like Jharkhand, Odisha which is like 1:2.5 max and for Karnataka it’s 1:3 max. Higher the steep ratio results in higher cost of production.
On Third parameter is a requirement of beneficiation and value addition as the ore is of inferior quality in Goa and cannot be sold directly by dry screening and sizing, it requires wet beneficiation. Infact, out of total capacity of wet beneficiation in the country, around 50% lies in Goa region. However, even after beneficiation 3-4% Fe enhancement of Fe Grade, 20-25% reduction in alumina and 30-35% reduction in silica is possible and then there is a loss of recovery that 30-35% loss as per tailings. So this again adds to the cost of production as more percentage of wet beneficiation need to be done to make the product sellable in the market.
On the Fourth parameter that is transportation Goa have inbuilt advantage with an evolved system as compared to the other states of India. Goa has one of the lowest transportation cost per ton from pit head to the port due to well managed river navigation system. Geographically and strategically Goa is located on the western coast that has added advantage of the ports for export. The cost of transportation in terms of freight to South Korea, Japan and China is only $10- 11 i.e. Rs 800/- as compared to the nearest steel mill in the neighbouring state being Rs1500-1800/- per ton.
The Fifth parameter is the product portfolio, what product sending in the market. Product of mines of Goa is 56-57% Fe, silica 5-6% and alumina 4.2 to 4.5%. Thus, it caters to specific market as the requirements. Goa is producing very low grade product mix. If you see the analysis that is published in mineral year book almost 80% of Goan iron production is below to 60% Fe as against rest of India that produce 80% with 60% Fe content.
This raises the question as to then where is the market for this low Fe content iron ore? Definitely there are no takers in domestic market but Goan ores are more export oriented, bringing in precious foreign exchange. This export would contribute approximately 30% of the state GDP.
3. Mining and allied activities challenges
Mining in Goa today was synonymous with iron ore mining which is completely in Private Sector. It has long cherished history of systematic & scientific mining and won various accolades from different government regulatory bodies like IBM, DGMS etc. The exemplary Reclamation & Rehabilitation of mined-out area carried out in some of mines in Goa has attracted the attention of the mining world not in India but also in overseas and used to be referred by experts on different platforms.
However the low quality of Iron-ores coupled with more removal of waste rocks for every tone of ore production (excessive stripping ratio) & comparatively higher transportation charge to iron & steel plants with respect to iron-ores mine of other jurisdictions like Karnataka, Odisha etc made it economically unviable to compete in domestic markets and thereby leaving no option other than to look for overseas markets. Thus Iron-ores produced from Goa has been exported to various countries like Japan, South Korea & China etc. The export of Iron-ores from Goa is also in tune with National Mineral Policy 2019.
It is stated under Para 6.1 of NMP2019 that thrust will be given to extraction of mineral resources in which the country is well endowed so that the needs of domestic industry are fully met keeping in mind both present and future needs, while at the same time fulfilling the demand of external markets for such minerals, so as to enhance domestic economic and social well-being.
Before suspension of Mining Activities in the State of Goa in the year 2012, it was reported that 332 Mining Leases were valid for Iron and Manganese ore. Out of these 332 leases, 118 mining leases were in operation (About 90 mines).
The Production of Iron and Manganese ore before suspension of mining operations is shown in following Tables:
In the year 2010-11 and 2011-12 the contribution of mining to State GDP was about 20% and 17% respectively, which has dropped to almost negligible during 2013-14.
The status of Iron ore mining leases in Goa & production from the year 2015 till the complete ban imposed by the Supreme court vide it order dated 7th February 2018 was as under:
It is estimated that Mining industry in Goa was employing over 60,000 persons directly and another 250,000 persons indirectly. About 30% of State’s population depends on mining and allied activities.
Challenges of Mining Allied Activities
• Nevertheless the iron-ore mining in Goa is beset with the following issues;
• Dumping of waste rocks/ overburden outside the leasehold as the leasehold area mostly being less than 100 hectares,
• Transportation of Ironores from mine head to nearest jetty points by tippers causing excessive burden on existing public transport infrastructure,
• Centralized location of Beneficiation plants catering the needs of multiples leaseholds leading to complexity in accounting for production from individual leaseholds
• To carry-out mining operation on the basis of Power of Attorney in the background of Mineral Concession Rules 2016
The above issues need to be resolved to avoid further complication in future. There is need for technolegal audit of the entire flow process of mining operation to find out the likely aberration so that suitable remedial measures are taken in advance to avoid knee jerk reaction.
4. Legal interpretation of the two major related acts Goa Daman Diu Abolition and Declaration as mining lease act 1987 which is commonly known as Abolition Act 1987 and the MMDR Act 2015 and its amendment of 2020 to be read along with the court directions
History of Mining in State of Goa at a Glance
• 1941-53: Erstwhile Portuguese Government granted most mining concessions under Mining colonial laws 1906 (not granted under MMDR Act of 1957)
• 1961: Goa becomes part of Union of India
• 1963: Mines and Minerals (Regulation and Development) Act, 1957, extended to Goa Daman and Diu
• 1975, (10th March)the Controller of Mining Leases for India issued notices to every mining concessionaire under the Mining Leases (Modification of Terms) Rules 1956.
• MMRDA excludes power to modify leases granted before October 25, 1949
• 1966 – 1983: Aggrieved concessionaires moved the Bombay High Court, Goa Bench and by judgment dated 29.09.1983, Bombay High Court restrained the Union of India from treating concessions as mining leases.
• Attempts to modify leases fail. High Court notes that no modification can be done as concessions principally not granted under MMDR Act.
• 1987: Parliament abolishes concessions, introduces leases in Goa, Daman & Diu under MMRDA that was notified on May 23, 1987 – Termed as Abolition Act (GBA)
• 1987: Appointed date indicated in GBA reads retrospective from Dec 20, 1961
• 1987: Miners challenge the Act before High Court. Interim relief granted threafter.
• 1997 High Court abolishes the challenge to the virus of the GBA, however, holds the Act and the recovery of dues prospectively
• HC judgment thereafter challenged in Supreme Court of India through SLPs
• 1998: SC’s 3-Judge bench passes interim order permitting mining operations and restricts any recovery of royalties retrospectively
• 2006/2007 –337 apply for renewals in the stipulated time. Workings permitted under deeming provision as in rest of India.
• 2012 – 1st Suspension of Mining Operations
• 2014 – Hon’ble SC permits mining operations. Caps Production capacity to 20 Million tons & Introduces concept of Iron Ore fund (before the advent of DMF to follow thereafter).
• •2014/2015 – Goa Government grants second renewal to 88 (out of 409) leases before ordinance introduced in January 12, 2015.
• 2015: NGO challenges renewal orders of the State Government.
• 2018: SC’s 2-Judge Bench quash 88 Mining leases which were granted second renewal by Goa Government in 2015.
• 16th March 2018 onwards Mining activity comes to a halt.
• 2018-19 – State Government pitches to the Central Government to remove the impasse created by harmonizing the Abolition Act & MMDR Act. Interventions filed in the SC, including by Ministry of Mines indicating vested rights of Miners in Goa cases.
• 30th January 2020: In a partial relief, SC permits extracted ores prior to Mid March 2018 to be transported.
Dr. Aruna Sharma has served as Secretary, Govt. of India. She is a Development Economist and served as Secretary, Ministry of Steel; Secretary, Electronics and Panchayati Raj. She also held charge of Rural Development and Panchayati Raj in Madhya Pradesh state government. She conceived and launched governance software like Samagra, now operational in 10 states and coordinated for Direct Benefit Transfer. She was member in 5 member high level committee of RBI for deepening digital payments.
Two decades of the Information Technology Act, 2000: Way forward
Phishing is a procedure to secure sensitive data, for example, usernames, passwords, and credit card
details, by taking on the appearance of a dependable element in electronic correspondence. Phishing is
ordinarily done by email and frequently guides clients to enter individual and financial details at a site.
Copyright and trademark infringement do happen on the Internet, yet the Copyright Act, 1957, or Trade Mark Act, 1999 which explicitly manages infringements, is quiet on the issue. In this way we have no implementation apparatus to guarantee the protection of domain names on the Internet. Transmission of e-money and exchanges online are not given protection under the Negotiable Instrument Act, 1881. Online security isn’t ensured; Section 43 (penalty for damage to computer or computer systems) and Section 72 (Breach of confidentiality or privacy) discuss it in some degree, yet don’t address the ruin caused by online infringements.
With the advent of newer technology and advancement in the mode of communications, the internet has become an essential part of our lives. The benefits of cyber technology are immense and many facets of modern life are completely dependent upon it; however, at the same time, in the wrong hands it can be more dangerous than a nuclear weapon. Crimes are no longer confined only to the physical space but have also entered the digital, as cybercrime. Cybercrime or computer-oriented crime, is one that involves a computer and a network. All the rapid advancements of internet and related crimes were needed to be regulated and therefore accordingly a new branch of jurisprudence emerged to tackle the problems of cybercrimes in cyber space i.e. Cyber Law or Cyber Space Law or Information Technology Law or the Internet Law.
The United Nations Commission on International Trade Law (UNCITRAL) adopted the Model Law on Electronic Commerce in 1996 and for the first time extended its efforts towards bringing uniformity in the laws of different countries. The General Assembly of the United Nations by Resolution No. 51/162 dated 30th January 1997 recommended that all States should give favourable consideration to this Model Law when they enact or revise their laws. The Model Law provides for equal legal treatment of users of electronic communication and paper based communication. The Information Technology Act, 2000 [hereinafter referred to as, “IT Act”] is also in consonance with the Model Law.
The IT Act, 2000 was passed by parliament on 15th May 2000, approved by the then President, on 9th June 2000 and enforced on 17 October 2000. It amended the following four Acts in the Indian legislation with its introduction: The Indian Penal Code, 1860; The Indian Evidence Act, 1872; The Bankers’ Book Evidence Act, 1891; and The Reserve Bank of India Act, 1934.
It is not only applicable to offences within India but also to offences and contraventions outside India (section 1(2)) and section 75 of the IT Act). Later on, the IT (Amendment) Bill, 2006 was introduced and passed in the Lok Sabha and amended the IT Act, 2000 by the Information Technology (Amendment) Act, 2008.
What were the objectives?
The then Minister of Parliamentary Affairs and Minister of Information Technology, Shri Pramod Mahajan, during the discussion on the Information Technology Bill, 1999 talked about the absence of a suitable law in India to deal with tampering of computer source documents, publishing information which is obscene in nature and issues relating to damage to computers and computer networks through a system of appropriate penalties and punishment. In furtherance of the same and making the law in tune with the Model law on e-commerce adopted by the UNCITRAL, the IT Act, 2000 came to life.
It is the enactment of the IT Act that provided legal recognition to transactions carried out by the means of electronic communication and has not only facilitated the electronic filing of documents and/or applications with the government but has also assisted and encouraged the use and acceptance of electronic records and digital signatures in government offices, making interactions between the government and civilians smooth and quick.
The government set up an expert committee to review the IT Act in January 2005. The committee comprised of representatives from the government, IT industry, legal experts etc. It found substantial lacunae in the existing Act and submitted its report in August 2005. It was noted that a lot of changes were required to the existing IT Act, 2000 because of the developments internationally and nationally especially in the area of the data protection and privacy. They observed that the field of cyber laws is a nascent area and experience of its formulation and implementation is still evolving worldwide and more so in India.
After due consideration and deliberation, the committee recommended that the IT Act should be technology neutral. It revisited the provisions related to data protection and privacy and proposed stringent provisions for handling sensitive personal data. The committee addressed the issue of liability of intermediaries and suggested amendments using the European Union Directive on E-Commerce as the guiding principle. It suggested severe punishments to prevent child pornography and also made recommendations on computer related crime and electronic evidence.
Later, the Information Technology (Amendment) Bill 2006 was introduced in Lok Sabha on 15th December in the year 2006. It was then referred to the standing committee on 19thDecember 2006. Further a report was submitted by the standing committee on 7th September 2007. The amendment Act was passed in the Lok Sabha on 22nd December 2008 and consequently in the Rajya Sabha on 23rd December 2008. The final assent was given by the President on 5th February 2009.
Highlights of the Information Technology (Amendment) Bill, 2018
Section 67BA is inserted by the Bill stating that whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is repugnant to well established cultural ethos, that person shall be punished on first conviction with imprisonment of either description for a term which may extend to six months and with fine which may extend to two lakhs INR.
Also, with respect to online gaming specifically, sections 67BB and 79B are inserted. Section 67BB states that whoever hosts any online game, which induces the users to commit any dangerous act which is harmful or any act that may cause injury or an illegal act, shall be punished with a maximum punishment of one year and fine which may extend to two lakhs and in the event of second or subsequent conviction, with imprisonment of either description for a term which may extend to three years and also with fine which may extend to five lakh rupees. Games such as the ‘Blue Whale Challenge’ have been said to inflict injury on a number of individuals, also in some cases, resulting in suicidal acts. This game in particular has gained a huge fan base in India among children leaving to a number of deaths and cases of depression amongst children.
Section 79B states whoever hosts an online gaming resource or produces any storage media containing a gaming resource to be sold offline, shall ensure that the game resource is categorised for use by appropriate age group on the basis of game contents; and there is a suitable mechanism within the game resource to warn the users against repeating the dangerous acts, if any, shown in the game in their real lives.
The IT Act has been quite useful in setting up the guidelines to settle the disputes pertaining to the internet/digital domain but specialists have also opined that the Act is a toothless legislation and has not been totally compelling in issuing punishments to the culprits. There are surely territories of digital laws which needs consideration. Some of the areas which could be worked upon includes:
Spam might be characterized as unsolicited bulk e-mail. At first, it was seen as a negligible irritation however at this point it is presenting major economic issues. Without sufficient specialized technical protection, stringent legislation is required to manage the issue of spam. The Information Technology Act does not talk about the issue of spamming. The USA and the European Union have authorized anti-spam legislation. Australia has exceptionally stringent spam laws (Spam Act, 2003) under which spammers might be fined 440 dollars per contravention for an individual with a maximum penalty of 22,000 dollars for a single day. Phishing
Phishing is the procedure of endeavouring to secure sensitive data, for example, usernames, passwords, and credit card details, by taking on the appearance of a dependable element in electronic correspondence. Phishing is ordinarily done by email and frequently guides clients to enter individual and financial details at a site.
There is no law against phishing under the Information Technology Act. Though the Indian Penal Code discusses duping, it isn’t adequate to check phishing. Recently, a phishing assault was seen on the clients of State Bank of India wherein a clone of the SBI site was utilized. What is more regrettable is that even SBI has not alerted its clients. So there is need of an enactment that prevents phishing in India.
Information Protection in Internet Banking
Users are assured by banks that their information will be kept confidential, however, the web banking system includes banks and their clients; but may also involve various outsiders as well. It is outdated for banks to hold data inside their very own computer systems. India currently has no laws on information insurance and therefore the risks associated with altering of personal information is pretty high.
The Information Technology Act discusses access; however, it does not discuss keeping up the integrity of client exchanges. The legislation does not set out any obligation upon banks to secure the details of clients and customers. U.K had an Information Protection Law enacted in 1998 which is repealed by the enactment of the General Data Protection Regulation (GDPR) under which banks or any individual holding sensitive data might be held liable for damages in the event of it neglecting to keep up satisfactory security protection in regard of information. In India, a bank’s obligation would be out of agreement as there is no resolution on the point. Cyber War
The issue of cyber war has not been talked about in the Act. India, as of late, has confronted various digital assaults from programmers outside of India who penetrated through the Indian firewalls. In the 26/11 attacks of Mumbai, various characterized information was given as intel to the culprits from other countries planning attacks against India. There are no arrangements in the Act to make such culprits liable for their activities.
Almost all cyber-crimes, barring a couple, are bailable offences under the IT (Amendment) Act, 2008. The quantum of civil liability is sought to be enhanced in the Act, while the quantum of punishment is reduced due to which convictions in cybercrime is very low.
Intellectual Property Infringement
The most widespread digital “abuse” that an individual makes these days is downloading motion pictures through distributed sharing systems. This is a widespread infringement of copyright laws; however, the numbers of culprits are so large that a successful measure cannot be taken to check it. So, to check the developing threat of digital violations, government through measures frequently deny access to sites. This has been contended to be a draconian measure and a violation of the right to speak freely and articulation under Article 19(1)(a).
Copyright and trade mark infringement do happen on the internet, yet the Copyright Act, 1957, or Trade Mark Act, 1999 which explicitly manages infringements, is quiet on the issue. In this way we have no implementation apparatus to guarantee the protection of domain names on the internet.
Transmission of e-money and exchanges online are not given protection under the Negotiable Instrument Act, 1881. Online security isn’t ensured just Section 43 (penalty for damage to computer or computer systems) and Section 72 (Breach of confidentiality or privacy) discusses it in some degree yet doesn’t address the ruin caused by infringements caused over the internet. Indeed, even the Internet Service Providers (ISP) who transmit some outsider data without human mediation isn’t made liable under the Information Technology Act, 2000. One can undoubtedly take cover under the exclusion condition on the off chance that the ISP demonstrates that it was submitted without his knowledge or that he practiced due perseverance to counteract the offense.
With the internet saturation on a rise in India, the evil of online piracy is growing at an alarming rate, and to fight with the problem of piracy, the Government of India was compelled to issue the Information Technology (Intermediaries Guidelines) Rules, 2011 which mandate an intermediary to observe due diligence while discharging its duties and not knowingly host or publish any information which infringes the Intellectual Property Rights of anyone. But the guidelines would not stop the piracy because of the vastness of the domain. Most of such records are made available on different websites, on or before the date of release. When a record is uploaded on the internet, it opens the floodgates for the masses to download it, thereby, causing heavy losses to the creators. The most difficult thing in the current piracy world is that the person who uploads such records on the internet is unknown to the world. Therefore, preventive action in the nature of ‘John Doe orders’ or Ashok Kumar orders has become significant globally to prevent intellectual property right infringements.
Suggestions and the Way Forward
When I look at the IT Act today, I strongly feel for the modernization of existing laws and enactment of new ones. Maybe it is time we need specific laws on Social Media, Fake news, and eCommerce. Often, we witness the application of two different legislations such as the IT Act and the IPC in a particular scenario. The decision of the Hon’ble Supreme Court in Sharat Babu Digumarti v. NCT of Delhi was followed by the Bombay High Court in Gagan Harsh Sharma v. The State of Maharashtra, holding that when an offence is sufficiently covered under the provisions of the Information Technology Act, 2000, the IT Act will apply as lex specialis to the exclusion of the Indian Penal Code, 1860. The IT Act, a later special law contained overriding provisions over IPC, a general law. Majority of the offences under the IT Act are bailable and compoundable and may also lead to amicable settlement between the parties, wherein, the offence under IPC may not be bailable and can attract higher punishment. Hence, if the complainant is willing to prosecute the offender under sections of IPC, it may deprive the offender from getting bail and from the case being settled, which the IT Act permits. Along with the IPC, the IT Act also at times collides with the Copyrights Act, 1957, the Companies Act, 2013 and the Contract Act, 1872. A settled principle on this point will make the implementation of the IT Act smooth.
Moving on, the reporting of cyber-crimes should be encouraged in order to devise proper mechanisms for its redressal. According to the data analysis of cybercrime, only 50 out of 500 crimes get reported. Here, I would also like to draw the readers’ attention towards the National Cyber-Crime Reporting Portal launched by the Ministry of Home Affairs, Government of India. This portal which can be accessed on https:// cybercrime.gov.in facilitates the victims/complainants to report the cybercrime complaints online and also has a special focus on cybercrimes against women and children.
We are surely in need for a universal regulatory framework mechanism which helps in the restructuring of the substantive as well as the procedural laws relating to computer generated crimes. The problems arising due to divergence of laws and procedure of different nations may be eliminated to a considerable extent if at least major cyber-crimes are uniformly recognized and incorporated by all the countries in their penal laws.
The internet being a borderless medium has often posed jurisdictional challenges in handling of crimes especially cyber defamation. Attention should be drawn towards the multiple publication rule which means that in relation to an online material, each ‘hit’ on the website creates a new publication, potentially giving rise to a separate cause of action if it contains defamatory material. Jurisdiction in such cases may be prescribed by the principles laid down in International Law or applying the Principle of International Comity so that if there is no particular law in the country, the court can resort to the principles already established in other legal systems of the world.
The use of strong encryption technology especially in government commercial organizations that are mostly dependant on massive computerization for the transmission of transactions or sensitive information, will enable them to keep their data safe from leakage or disclosure to public or hackers.
The data landscape of India is bound to witness a sea change with the enactment of the Personal Data Protection Bill but at present the IT Act and the rules made thereunder have not even defined the term ‘encryption’. Strange, isn’t it?
The Information Technology Act, 2000 puts forward reasonable provisions for studying and examining the law and strategizing the field of cyber-crime legislations; however, the legislation falls short of strict implementation of its provisions. This suggests that no penal legislation should be left open for expansive translations, particularly concerning the digital age because the internet provides us with certain freedoms in real life which might make transgressing any law easier for us. Hence, any administrative instrument or authoritative measure must try to be exhaustive, clear and interpreted restrictively. I am keenly looking forward to a wellequipped law which caters to the age of digitization and emerging technologies such as blockchains, artificial intelligence, and cryptos.
Stay Alert and Stay SafeYou’re on the Internet!
Making things happen: Municipal corporation turns Indore into cleanest city
Indore was known as an industrial town in the state of Madhya Pradesh but shot into prominence as it was declared as the cleanest city in the country in 2017. It continued to be awarded the cleanest city every year thereafter. What brought about a transformation that has been sustained now for so many years?
It wasn’t very easy to begin with. A number of challenges were faced initially to set up a system in the city:
• Insufficient knowledge and self-motivation of residents, community and operation staff • Weak financial support and management
• Lack of involvement of stakeholders, including the private sector and non-governmental organizations.
• Lack of public participation
• Lack of strengthening of institutions for monitor and enforcement To overcome these challenges, it was decided to transform the city through strategic planning and municipal waste management. Indore Municipal Corporation (IMC) developed capacity to collect, transport and treat 1100 tonnes of waste generated every day.
This was achieved through support from citizens and stakeholders in the following manner: • 100% source segregation of waste in dry and wet waste.
• 100% door-to-door collection
• 100% transportation of waste to processing facility
• 100% treatment of wet by composting • 100% treatment of dry waste in two material recovery facility.
• 100% utilization of all rag pickers in the city in material recovery facility
• 100% recovery of land from old dump by bio-mining process
• 100% vehicles equipped with GPS with geo tagging and real time monitoring through control room
• 100% workers registration with biometric system and wages directly to their accounts. Extensive work to strengthen infrastructure and efficient operation and maintenance of solid waste management waste was carried out.
Information, Education and Communication (IEC) was the key to behaviour change.
The first step therefore was to create awareness amongst the people and the community through pamphlets, loud speakers, rallies, meetings and public participation. Made them aware to segregate wet and dry waste, its benefits and consequences on human health & environment.
Door to door collection and transportation services were designed in such a way that the citizens got the services on all 365 days in a year irrespective of any National Holidays, Festivals and Sundays. Accordingly, a ward wise deployment plan of sanitary workers, drivers and utilization of vehicles was prepared.
For better segregation 3 bins are used in each house. Door to Door collection of waste is being done in all 85 wards of city using partitioned vehicles. There are three separate collection compartments for wet, dry and domestic hazardous waste in each tipper. The wet waste from semi bulk generators generating 25 to 100 kg of waste is collected through the dedicated Bulk Collection System.
The wet waste collected is transported by the tippers to one of the ten transfer stations. At the garbage transfer station (GTS), the tippers unload the wet waste into dedicated compactors which compress and load the wet waste on dedicated hook loaders.
The details of all the incoming waste collection vehicles are logged in the log books at the GTS. Aadhar based Biometric attendance of all the workers is taken every day. All vehicles are monitored by a GPS enabled tracking system. Any route deviation is penalized and multiple deviations are grounds for termination. Sweeping of roads less than 18m wide is done manually by sanitary workers of IMC and wider roads are cleaned by 10 ultra-modern mechanized road sweeping machines. 400 km roads are mechanically swept between 10 pm and 6 am. Gangs of workers are deployed along with to wash the squares, footpath and monuments with pressure jet machines.
10 ultra-modern transfer stations have been developed at strategic locations to transfer the waste from small tippers to big hook loaders. From these transfer stations, wet waste is sent for processing. The segregated MSW is compressed into respective containers. They are then lifted by dedicated hook loader and sent to disposal site.
The bucket for the sanitary waste and domestic hazardous waste is off loaded into dedicated drums and is transported to Common Biomedical Waste Facility (CBWTF) regularly. The IMC took over an existing under-performing Centralized Organic Waste Processing Unit. After the takeover, complete overhauling of the plant, including repair of the machinery, was done. The compost plant is now working to its capacity of 600 MT of wet waste per day.
IMC established decentralized aerobic pit composting units in 414 gardens to treat lawn cuttings, leaves and tree branches. Depending upon the size of garden and quantity of garden waste generated the onsite composting facility for garden waste has been developed. Decentralized processing for wet waste has been developed at vegetable and fruit markets and at Khajrana Ganesh Mandir for converting flower waste into compost through Organic waste converter System. Mobile Composting Vans for onsite treatment of Organic Waste generated from small food joints and restaurants has been deployed on contract basis.
The IMCtook the initiative to produce and utilize Bio CNG produced from processing of Municipal Solid Waste. The project with 20 TPD capacity is in one of the whole sale market of Fruits and Vegetables in Indore. This plant generates Bio CNG for public transport. It generates methane gas which is converted into CNG and utilized. 15 buses in Indore run on the Bio-CNG and consuming nearly 500 kg of gas per day & cover more than 2000 km per day.
On segregating dry and wet waste, around 500 TPD dry waste is generated. To handle and process such large quantity of dry waste, IMC has developed Material Recovery Facility. At this material recovery facility various fractions of dry waste like plastic, rubber, leather, glass, metal, cloth etc. are segregated by registered rag pickers. 1753 rag pickers were identified after extensive survey.
The non-biodegradable waste is segregated by category at the site. The recyclable low-density polyethylene (plastic bags) gets cleaned and sent for recycling at existing plastic briquetting unit, where the plastic briquettes are sold to an irrigation pipe manufacturer. Other smaller-volume recyclables such as paper / carton, glass, metals, HDPE, PPP, and PET are cleaned, sorted, bundled and traded to wholesalers at a cost-plus margin.
A construction and demolition waste processing plants of 100TPD capacity has been developed and 4 transfer points for C&D waste have been developed within the city.
The success of Indore shows that this is doable. It is a lighthouse project for MP and for other similar cities across the country. What is even more remarkable is that the wonderful and exemplary work initiated under the inspired leadership of the then Municipal Commissioner, Manish Singh was carried forward, consolidated and sustained by his extremely competent successor, Asheesh Singh . They have demonstrated that it-can-happen.
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Office. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
PM Modi, only you can root out drug menace
The youths will have to be saved from drug abuse, for the whole country will be ruined if the younger generation went astray.
I would like to thank Kangana Ranaut who has brought the issue of drug and substance abuse once again into the public domain through her aggressive campaign. It is indeed unfortunate that our younger generation is getting addicted to drugs. The country will be ruined if the younger generation is not saved from this peril. Now Modi ji is the only hope, for he has the grit to eliminate the drug mafia.
Dear Prime Minister Narendra Modi ji, You are the only person who can obliterate drug menace from India and save the younger generation from drug abuse. If the younger generation survives, the country will survive. If the younger generation is ruined, the country will be ruined too.
I am directly addressing you because the agencies that act against the drug trade are under the control of the Central government. The second reason is that you are strongly opposed to the growing drug addiction among youths. You may not have had the time to pay attention to this issue due to your multiple commitments and work pressure, but this is the most pressing issue today. If you make up your mind, you can eliminate the drug trade because you possess that determination. For once, we may ignore economic offences for some time. Smuggling of wood to medicine and gold and silver can be ignored for once but we cannot allow the spread of drugs into India. No Indian would want to, no parent would want their child to get addicted to drugs and be ruined. Everyone who got into the trap of drugs was ruined.
I would illustrate my point by giving an example of my own state Maharashtra. There are three important centres here – Mumbai, Pune and Nagpur. When I used to study in college in Mumbai, the picture of ‘Bhole Baba’ in any paan-cigarette shop was an indication for the people to understand that it sold drugs. I am talking about the 1968 era. Since then, I see that this illicit trade has continued to grow. Today, drugs are easily sold near schools and colleges. There are reports of drugs being sold even near the police station and the police headquarters. It is a matter of great sorrow and misfortune that the state government turns a blind eye to it. People feel that the police have full knowledge about this illicit trade. So what prevents the police from stopping it only they can tell!
Today, Pune has become a hotspot of drugs business. Pune has the highest number of students and most of them are from outside. Drug addiction is spreading rapidly among them. Nagpur is also one of the secret bases where underground activities are carried out unhindered. It is said that Nagpur is the centre of distribution. This drug addiction is so bad that when young men and women get nothing, they consume balm or cough syrup. The Narcotics Control Bureau and the National Investigation Agency have also been monitoring Nagpur, but the kind of strict action that should be taken is nowhere to be seen.
Uddhav Thackeray ji, you are the chief minister of Maharashtra and I know that you have zero tolerance for drug abuse in Maharashtra but unfortunately people are falling prey to this menace on a large scale! Even foreigners operate drug trade in Mumbai. So the question is why was investigation not initiated or strict action taken when the videos of Karan Johar’s party or other rave parties appeared on social media? Carrying or consuming drugs is a serious crime, so why were they not caught under the law? I would like to thank Kangana Ranaut for showing courage to raise this issue. She has adopted an aggressive stand on the issue of substance abuse.
This issue is not exclusive to Bollywood. Even Tollywood and the regional film industries are under its grip. Obviously, we use something when we have it in abundance. Drug menace in Punjab has reached its peak and attracted a lot of opprobrium. But even Bihar, UP or Rajasthan are not far behind Punjab! Delhi’s schools and Delhi’s rave parties have attained notoriety for drugs! People say that many politicians have also participated in these parties. Who does not know the activities of Delhi’s farm houses? There was a time when people used to ask questions to politicians and the latters were afraid.
Now no one asks questions nor is anyone afraid. It is our misfortune that India has become the hub of the international trade of drugs. Drugs dispatched from Pakistan, Myanmar and Nepal borders, besides Mexico, reach India via Brazil, Africa, Dubai through the Arabian Sea route. Terrorist groups are involved in this drugs trade. They are destroying the lives of our youths and also making money for purchasing lethal weapons. Drugs and arms dealers run parallel governments all over the world. The US has succeeded in putting an end to this menace to a great extent, but if we do not take effective steps to break this nexus in India, the time will write a painful story of destruction.
The Interpol, World Narcotics Association and antiterrorist agencies meet every year. They have also mapped out the drug hubs. Our officials also attend those meetings. If a concerted action is taken with international cooperation and the policy of ‘zero tolerance’ is adopted towards drug abuse, it will not be very difficult to wipe out this menace from India. After all, why are drugs not available in Singapore? This is because drug traffickers get the mandatory death sentence in Singapore as those found in possession of dangerous drugs are hanged irrespective of their status.
In India too, we have to adopt an effective approach because this country has to be saved. If the younger generation survives, the country will survive. Once a person gets addicted to drugs, no one can save him or her. A reflection of what this addiction could lead to was seen in Delhi when a drug addict indulged in an indiscriminate shootout. Against the backdrop of the growing menace of drug abuse among youths in the country, I feel horrified to think how I will be able to save my family members. Just a thought is enough to send a chill down the spine. The very thought that your near and dear one is addicted to drug or substance abuse is enough to trouble your soul. Every parent is afraid of the drug addiction and wants to keep the child away from it. And therefore, we all have great hopes from you, Modi ji!
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha
Beyond political sloganeering: Actual benefits of new farm bills
It is undisputed that APMC laws affect the state revenue. However, it is the conflicting interest of the state government which is preventing the farmers to reap actual profits from the product. The Central government in 2003 drafted a ‘Model APMC Market System Bill’. The purpose of the Bill was to help the state government liberalise their respective APMC laws and reduce the role of intermediaries. No state incorporated the reforms suggested therein. Therefore, the Central government was correct in bypassing the state government in bringing new legislation for agrarian reforms.
Introduction: The protest by the Indian farmers against the recent changes to the law related to farming is gradually intensifying. Through the recent ordinances, the Central Government aims to usher in a change of open market system in the agriculture sector. However, this change is being resisted by many farmer groups and unions who accuse the Central Government of indirectly removing the Minimum Support Price system and making the farmer vulnerable to corporate giants.
A cumulative reading of The Farmers Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020; The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020 and The Essential Commodities (Amendment) Ordinance, 2020. It is pointed out that these ordinances were in the current session were brought in as legislation and passed by both the houses of parliament. These legislation show a majority of concerns raised by the farmer groups and unions are based on false apprehensions misguidance by political parties. In this article, we try to bust the myths surrounding the recent changes to these Acts and address genuine issues in the implementations of the Acts.
The Problems with Agricultural Produce Market Committee System
A major criticism of the recent changes in the law related to farming is that it indirectly dismantles the Agriculture Market Committee System. However, the APMC system suffers from many infirmities and required reforms. The APMC system has created inconsistent growth amongst different stakeholders involved in the agrarian sector. While the agents/traders of APMC market earn astronomical profits, the farmers receive inadequate payments.
Under the APMC laws, farmers can only sell the agricultural produce at fixed “market areas”. The legal definition of the “market area” is very wide. It can range from a small area of land to an entire district. Under the APMC system, the farmers cannot sell their product outside the said “market area”. There is also a prohibition on selling product at APMC “market area” of a different district. The APMC system further requires the farmers and traders to pay a service fee to the APMC. APMC markets charge a service fee, even in those cases where no services are availed by the farmers. The restrictive nature of the APMC system suffers from serious problems. The system gives birth to cartels wherein the APMC agents conspire together to prevent high bids and get agricultural products at a very low rate. The profits made on selling the final product are shared between the APMC agents while they leave the farmers empty-handed. Another problem in the APMC system is restrictive trade barriers. For instance- The license fee charged by the APMC is very high, which makes the entry of a new distributor-agent very difficult. Further, the APMC demands a high rate of commission, fees etc on procurement of agricultural goods. Restrictive trade practices like these increase the ultimate price of the product.
The Ashok Dalwai Committee aimed at increasing the farmer’s income also recognized the involvement of numerous intermediaries in the sale of agricultural goods. According to the Dalwai Committee, majority farmers received only 15% of the ultimate price and the intermediaries earned the remaining profits. The Dalwai Committee also noted that India needed at least 3500 additional APMC market to make the sale of agricultural goods easier. Because of the lack of APMC market, the small farmers have to sell their product outside APMC areas to unlicensed agents who pay even less money than APMC agents for the agricultural product.
What has to be really pointed out is that the states where protests against the action of the central government are actually taking place there does not exist a very active APMC regime. Also it is imperative to mention that the existence of APMC regime is huge source of funding for the regional political players. It is the end of this source of funding which is actually leading to protests in the name of farmers rights.
Empowering the Indian Farmer Viz New Legal Regime
The objective behind the new legislation is to liberalise the agrarian economy. The Government aims to provide greater bargaining power to the farmers and minimize the role of the intermediaries by removing restrictive trade barriers.
Section 2(m) of The Farmers Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020, stipulates an expansive definition for “trade area”. Under this section, farmers no longer have an obligation to sell their products only at the AMPC markets. Unlike the AMPC market system, farmers can now directly sell their product at any area or location, place of production, collection and aggregation including (a) farm gates; (b) factory premises; (c) warehouses; (d) silos; (e) cold storages; or (f) any other structures or places, from where the trade of farmers’ produce may be undertaken in the territory of India. Critics of the ordinance argue that even before the ordinance came into effect, majority Indian farmers sold their goods outside the AMPC markets. However, the same critics conveniently hide the fact that under the APMC market system products were sold outside the APMC market because of compulsion and at a very low price. Section 2(m) of the Act creates an additional place for trading agricultural products where the importance of the intermediary is negligible. Therefore, the farmers will directly earn profits as they won’t have to pay any additional commissions. As explained above, the entry of a new trader-distributor was very difficult because of cartels and high licensing fee. The FPTC Ordinance solves this problem too. According to Section 2(n) of the Ordinance, any trader with a pan card can now buy products directly from the farmers. Such a person can simultaneously trade products from outside and inside the AMPC market. However, to carry trade inside the AMPC market, he would require the requisite license under the AMPC laws. Further, Section 6 of the FPTC Ordinance prohibits State Government from levying any additional market fee or cess on farmers and traders. Section 6 of the Ordinance helps both- the farmers by increasing their total share in profit and the consumers by reducing the overall cost of the final products. Perhaps the most innovative provision under the FPTC Ordinance is the introduction of electronic trading for agricultural products.
Under Section 4 of the Ordinance, anyone can create an electronic interface to facilitate easy buying and selling of agricultural goods. The Ordinance empowers the government to regulate electronic trading. The Government also has the power to punish any electronic trading platform that indulges in unfair trade practices for a penalty up to Rs 10 lakh.
The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020 (FAPAFS) safeguards financial interests of the farmers. According to Section 3(1) of FAPAFS Ordinance, all agreements must be in writing. Section 5 of the Ordinance requires that sponsor must mention the price for the product in the agreement itself. According to Section 5 of the FAPAFS Ordinance, the agreement must have a minimum guaranteed price for the product and details of the bonus and premium amounts which the sponsor will pay. The sponsor should calculate the bonus amount from the price prevailing in the AMPC market. According to FAPAFS Ordinance. Section 3 further requires that The Sponsor shall make payment of not less than two-third of agreed amount at the time of delivery and the remaining amount after due certification, but not later than thirty days of delivery and in other cases, make payment of agreed amount at the time of accepting the delivery of farming produce and issue a receipt slip with details of the sale proceeds.
No Irregularity In Procedure Adopted to Pass The Legislation
The opposing political parties have quested how the Central Government has passed all three farm-related legislation. Many political parties have termed it as a death of democracy. The political parties in opposition have raised 2 major concerns regarding the procedural irregularity. The opposition parties firstly claim that the Central Government passed the legislation hastily. They argue that the State Government should receive more time to deliberate since the reforms affect the revenue of State Government. Second, the Deputy Speaker of Rajya Sabha intentionally adopted a “voice vote” procedure and the MPs who protested against voice vote faced suspension. Further, many political groups have claimed voice vote to be an unprecedented phenomenon.
All these accusations are merely misdirection by the opposing political parties. It is undisputed that APMC laws affect the State Revenue. However, it is the conflicting interest of the State Government which is preventing the Farmers to reap actual profits from the product. The Central Government in 2003 drafted a “Model APMC Market System Bill”. The purpose of the Bill was to help the State Government liberalize their respective APMC Laws and reduce the role of intermediaries. Because of the strong political lobby of APMC markets, no State Government incorporated the reforms suggested in the Model Bill. Therefore, the Central Government was correct in bypassing the State Government in bringing new legislation for agrarian reforms.
The second allegation of irregular parliamentary procedure is also incorrect. The MPs from opposing parties in the Parliament have argued that the Deputy Chairman of Rajya Sabha suspended them for distribution of votes. However, the argument suffers from unsound legal principle. The suspension of MPs is because of the ruckus created by a few members of the opposition. The Deputy Speaker is well within his power to punish MPs who resort to unruly behaviour inside the Upper House. Ironically, the Deputy Speaker did resort for a division under Rule 252(3). However, because of the commotion created by the opposition inside the Parliament, the division became unfeasible. It is pertinent to mention that voice vote is the norm in the Indian Parliament. Recently, the Rajasthan Legislative Assembly also decided the recent No Confidence Motion against the Ashok Gehlot Government through a voice vote. If the criticism of the legislation is because of the method of voting, then the scope for reform lies in the rules and procedure of the Parliament and not merely a criticism of its usage.
While it is made clear that the authors do not support the manner in which the bill was passed in the house but it was not the first time it has happened and in no manner can the deputy chairman of Rajya Sabha be blamed for the action.
What has to be appreciated is the fact that this government is inclined to act towards roping in new structural reforms and take unprecedented decisions for actual changes in the exisiting system. The protests and furore over these newly passed legislation is only political in nature as it leads to nothing but losing out on regional vote banks and illicit funding which is their kneeve of survival in states. These reforms are need of the hour in order to create a robust agricultural setup.
Adv. Sai Krishna Kumar, is an advocate with MS Law Chambers and Co-author Aditya Joshi is a penultimate year Law student from University of Delhi.
How much funny is really funny? The debate over parody in copyright law
The rights that a work of parody might violate are the distribution rights over the work, right to publicise the work in a positive light, and the moral rights which are associated with the author. Moral rights essentially prohibit modification of the copyrighted work in a manner that injures the honour and reputation of the owner of the work.
The difference between parody and satire has not been accepted or developed by the Indian courts in the context of IP laws. This means that whether a work is a parody or a satire, the defence of fair use can be claimed by the defendants and the work shall also be entitled to claim separate copyright protection as well.
Parody refers to a work that humorously and critically comments on existing work to expose the flaws of the original work. Parody, as a means of criticism, has been historically used by various people such as stand-up comedians, YouTubers, Bloggers, actors, authors, etc. to communicate a particular message or a point of view to their audience. This means that to create a successful parody, one has to, inevitably, use the original work. Since copyright law gives authors of original work certain exclusive rights, such as the right to reproduction, communication to the public, distribution rights, right to make derivative works, and other such rights associated with the work, parody turns out to be a violation of the rights granted to the copyright owner.
The rights that a work of parody might therefore violate are the distribution rights over the work, right to publicize the work in a positive light, and the moral rights which are associated with the author. Moral rights essentially prohibit modification of the copyrighted work in a manner that injures the honor and reputation of the owner of the work.
Parody issues generally come into play with tort law as well as criminal law, especially law on defamation. However, in this article, we’ll try and focus on the major IP issues that hover around the debate regarding parody.
Copyright Law and its philosophy
Copyright is a unique kind of property. Just like other Intellectual property, you cannot touch or feel it, but you certainly can protect the ‘creation of the mind’. However, the objective behind copyright law is to “strike a fine balance between monopolistic claims made by authors of original work and adequate protection to the Intellectual property to encourage further creative thought”. Such copyrighted work can therefore be used by third parties to encourage creativity – This is fair use. However, such use has to be reasonable and under certain conditions for specific purposes only.
The Four Factor Test
For a valid fair use claim, the defendant will have to satisfy what is commonly known as the “Four Factor Test”. Under the four-factor test, the consideration is: firstly, what was the purpose and character of your use of the copyrighted work. Secondly, the nature of the copyrighted work, which means that if the work is copyrighted then, what is the degree of protection that it deserves. Thirdly, the amount and substantiality of the portion of the work that was taken by you. This means that whether the amount of copying done by you was reasonable in relation to the purpose of copying and lastly, the effect that your use will have on the market of the owner. Will your use impact the potential market of the original work.
Parody and Satire
Indian laws treat parody and satire as one and the same. However, the position is different when one looks at the jurisprudence evolved by the courts of foreign Jurisdictions.
In the United States, the courts have differentiated parody and satire to the extent that it impacts the defense of Fair Use under their copyright law. In Campbell v. Acuff-Rose Music, Inc (1994), the court differentiated between the two and held that “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s imagination, whereas satire can stand on its own feet and so requires justification for the very act of borrowing.” Parody, according to the court, meant, “Second work by a different author that imitates the characteristic style of the first author … to ridicule or criticize the copied work.” However, satire meant a work in which “prevalent follies are assailed with ridicule or attacked with irony, derision or wit.” The Supreme Court of the United States, in this case, made it clear that while parody was entitled to the defense of fair use, satire was not.
On the other hand, in May this year, the Delhi High Court had an interesting case before it. Netflix aired a web series on its platform named “Hasmukh” which is a dark comedy about a small-town boy who arrives at Mumbai to pursue his career in stand-up comedy. Something weird about Hasmukh, the protagonist, is that he can only successfully perform his act if he commits murders before his performances and makes jokes about his victims. During one of the episodes, Hasmukh has been shown to have had an upsetting experience with a lawyer. The lawyer is someone dishonest and greedy. During the same episode, the protagonist allegedly makes derogatory remarks against the entire legal fraternity. So, a suit was filed before the Delhi High Court seeking a stay against further airing the web series. The court in Ashutosh Dubey v. Netflix (2020) sat to decide whether the above situation amounted to freedom of speech and expression under Article 19(1) (a) of the Constitution of India. Although the case was decided based on the above contention, the court made certain remarks on what a satire is. The court said, “Satire is a work of art. It is a literary work that ridicules its subjects through the use of techniques like exaggeration. It is a witty, ironic, and often exaggerated portrayal of a subject.”
Another instance when the court considered the issue of satire was in the case of Indibily Creative Pvt. Ltd. vs. Govt. of West Bengal (2019). It was the Supreme Court that held that “A Satire is a literary genre where issues are held up to scorn by means of ridicule or irony. It is one of the most effective art forms.” The difference between Parody and satire has not been accepted or developed by the Indian courts in the context of IP Laws. This means that whether a work is a parody or a satire, the defense of fair use can be claimed by the defendants and the work shall also be entitled to claim separate copyright protection as well. This is because the courts in India have considered both these forms of expression as a work of art and have characterized them under artistic expression.
Parody and Fair Use
Parody is included under a category of works allowed under Section 52(1)(a)(ii) of the Copyright Act, 1957. This provision provides for ‘criticism or review, whether of that work or any other work.’ Parodies usually are essentially a criticism of original work and are therefore included in the list of works allowed in the above provision. However, it isn’t as simple as it sounds. The real problem starts when you have to prove that your work was a parody and not an infringement on the rights of the original copyright holder.
To prove that your work is covered under parody, you have to satisfy two conditions which will essentially conclude as to whether it is covered under fair use or not. They are, Firstly, you must not have intended to compete with the copyright holder. This is also called the Market Substitution Test and Secondly, you must not have made ‘improper’ use of the original work. These conditions were laid down in the case of Blackwood and Sons Ltd. & Ors. v. A.N. Parasuraman & Ors. (1959)
So, if you can prove that your work has not impacted the potential market of the original work and that the parody and the original work cater to two completely different sets of audiences, you would have passed the market substitution test. This is tricky because applying this rule strictly is impossible for the simple reason that one is not quite sure if the categorization of the audience can be done in the manner that this rule presupposes. If the court looks into the commercial gains made by the parody to see if the parodist has competed with the original author, then that too wouldn’t be an effective mechanism. Kris Ericson writes, that, even if the parody has made commercial gains by criticizing the original work it doesn’t mean that it has made inroads into its potential market. Infact, he goes on to mention that, it has indirectly helped the original copyright owner by publicizing the original work and for lesser-known works, it has served to make it more famous/popular.
The Transformative Work Test
To meet the difficulties that could arise while analyzing the first condition, the courts have evolved the “Transformative Work” Test. This test was also used in the Campbell case where the US Supreme Court held that the relevant question to decide in such circumstances is to see “to what extent the new work is transformative, i.e., to what extent the new work alters the original with new expression, meaning or message.” This test has therefore substantially downplayed the commercial use argument and if the parodist can show that his work is transformative, he would be entitled to fair use defense. However, what qualifies as a “transformation” under this test has to be decided by the court on a case-to-case basis.
In Leibovitz v. Paramount Pictures Corporation (1998), the US Court of Appeals for the Second Circuit was faced with a dilemma. Leibovitz is a well-known photographer. Among her most famous works is the photograph of the actress Demi Moore. Moore was pregnant when the photo had been shot by Leibovitz. She was depicted nude with a serious facial expression. The photo was shot keeping in mind various aspects such as skin tone, body positioning, and lightning, among other things. The photograph gained popularity in very little time. Paramount pictures, sometime later, published a photograph of the actor Leslie Nielsen where the company had used the same concept behind Leibovitz’s photo. The company used the photo of a naked pregnant woman, which was shot using similar lightning, body positioning, etc. and superimposed the ‘smirking’ face of Nielsen in the place of the woman. Now, the question that the court had to decide upon was, whether this amounted to a transformative work at all. The court held that Paramount’s use was transformative because it had imitated the original work and had brought in a ‘comic effect or ridicule’ which was an addition to the original work. The court also held that Nielsen’s photo with a smirking face had a contrasting dissimilarity with the serious expression of Moore which may be perceived as commenting on the ‘pretentiousness’ of the original.
In R.G. Anand v. M/s Deluxe Films (1978), the Supreme Court in India has held that “Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.”
However, a work does not become a parody simply because there is humor inside it. If it is found that the parodist has tried to use a famous work to gain more commercial benefit by simply incorporating humor in the work, it wouldn’t be considered a parody. For instance, during the fag end of 2015, a US court was hearing an exciting case. The defendant, who was an apparel company, had used the iconic Superman logo on its T-shirt. The T-Shirts featured the word “Dad” in a superman-styled logo. They claimed that SuperDad T-Shirts by the defendant were an obvious parody of the Superman logo and therefore there is no likelihood of confusion that could be caused to the consumers. They infact claimed that the word ‘Dad’ was used to point out Superman’s ‘undue self-importance’. The court was sitting to decide on the motion to dismiss the complaint. The judge disagreed with the arguments of the defendant and held that although the defendant’s use of the word Dad is humorous, it is only to promote the t-shirts using the logo of the plaintiff, and therefore it is not a parody.
What does the SupermanSuperDad fiasco show? It shows two things in particular. It shows how a defense of parody will only succeed if the work is not likely to confuse the consumers as to the source of the work. Secondly, it shows how parody has to be more than being just funny especially when the work is purely commercial in nature. It has to make some commentary on another’s work. The commentary must be meaningful and must not be simply to utilize someone else’s work to increase your sales.
Parody and Moral Rights
Moral Rights are inalienable rights granted to an author of a copyrighted work. They exist independently of Copyright. The author of an original copyrighted work, even after agreeing to alienate his exclusive economic rights, retains moral rights in his works which can be enforced when the need be. They give the right to the author to have the work attributed to him which is also known as the right to paternity.
Moral Rights were included in Article 6bis of the Berne Convention way back in 1928. Section 57 of the Copyrights Act, 1957 grants protection against any act of distortion, mutilation, modification, or any other untoward act done to an author’s original work in which copyright exists. Acts which prejudice the honor or reputation of the creator of the work is read as a violation of the Right to Integrity, which also forms a part of Section 57.
It is to be understood that parody directly infringes upon the moral rights of the author of an original work. This is because it is based on ridiculing and mocking the copyrighted work. This is where the second test to claim parody as fair use comes in. We do know that to claim fair use defense in parody, the parodist will have to prove that he did not use the original work in an ‘improper’ manner. But the test becomes difficult to theorize because of a lack of a clear definition of the word ‘improper’ and as to what it entails.
Here, there are issues relating to freedom of speech and expression (argued by the parodist) as well as those related to defamation law and claim over one’s right to dignity (argued by the author of a copyrighted work). It is to be understood that freedom of speech and expression is not an unbridled right. It is infact a right with reasonable restrictions. This means that a parodist is not allowed to ridicule or attack the work such that it can be imputed to the author of the work.
How can this distinction be made is a question of fact which the courts have to decide on a case-to-case basis. Usually, the courts apply what is called “The line of Creativity” principle. This principle draws a line between the parodist’s creative application of ideas and expressions to criticize the original work, and, the insult or humiliation intended towards the author of the original work. Such an inquiry is for the courts to do. But while doing such an inquiry the courts need to draw a distinction between innocent humor and defamation intended against the moral rights of an author.
Notably, the Australian Supreme Court laid down the ‘bane and antidote Test’ in the case of Charleston & Smith vs. Newsgroup Newspaper Ltd (1995). The test laid down a rule that if any defamatory text or picture is accompanied by a disclaimer prescribing that the work has been used just for humor purposes then it must be taken only for humor purposes and nothing more or nothing else. This was a big development.
The growth of new media technologies has increased the number of actors, standup comedians, bloggers, and other stakeholders in copyright law. The use of original copyrighted works, without the permission of the author of the work, has almost become a norm and a social and cultural behavior. This is all being done in the name of a joke or a parody. Majority of these contents violate the moral rights of authors of original works and are offensive. The rest use parody as a fair use defense for works that are purely aimed at commercial gain. Such infringements need to be regulated in an age of digital India to grant incentives for creators to create more works of artistic expression. The different tests adopted by the courts have to be applied equitably. In the longer run, this will further the goal of Intellectual Property to balance the rights of the Authors as well as those forming part of the citizenry.
Anurag is a student of National Law University, Visakhapatnam and can be contacted at firstname.lastname@example.org Abhinav is a student of law from Amity University, Noida and can be contacted at email@example.com
Constitutional framework during Covid-19
To fight against this pandemic, Prime Minister Narendra Modi imposed a nationwide lockdown for 21 days from 25 March 2020 with only a few essential services running, all others like commercial, industrial, religious and cultural activities were shut down. Residents were ordered to self-quarantine themselves. A comprehensive look at its legal and statutory sides.
Right to life as guaranteed under Article 21 of the Constitution of India also includes the right to health and states being the duty bearer to protect the health and wellbeing of its people. The right to health also has its reference in Article 38 — social order to promote the welfare of the people under the Constitution of India.
The novel coronavirus also known as COVID-19 said to be originated in Wuhan, China. Over a period of time, it has been spread almost all the other countries, including India, which observed its very first case in January this year. With the increasing number of cases, the World Health Organization (WHO) declared COVID-19 a “Global Public Health Emergency”. Governments across the globe have taken drastic measures to limit the virus’s spread, including national lockdowns, border closures, and ramped-up medical research. To fight against this pandemic, Hon’ble Prime Minister Narendra Modi imposed a nation-wide lockdown for 21 days in India from 25th March 2020 with only a few essential services running, all others like commercial, industrial, religious and cultural activity were shut down. Residents were ordered to self-quarantine themselves. This lockdown was aimed at slowing down the spread of the coronavirus and breaking the chain to combat corona. Instead of obeying the lockdown order, people started panicking and scrambling to stock daily essentials products and thousands of labours, migrants, who fear dying not from the deadly virus but rather from hunger, have decided not to wait and start moving to their respective state. Many of the fundamental rights of the people are suspended.
Stages of transmission
According to the Indian Council of Medical Research (ICMR), there are four stages of transmission of the Novel Coronavirus:
• Stage 1 – Imported Cases (People with travel history). This includes cases usually from people who had travel history to an already corona affected country.
• Stage 2 – Local Transmission (Transmit virus usually to friends or family member). This includes those cases from people who have brought the virus from other affected countries and transmit it to people living nearby them.
• Stage 3 – Community Transmission This includes those who are not having direct contact with an infected person or not having any travel history to any affected countries yet he/she reports corona positive thus affecting many others around him/ her.
• Stage 4 – Epidemic This is the last and the most fearsome stage as the disease becomes an epidemic in a country with large no of cases spreading across the country and the rising number of deaths with no clear stopping point. China is a perfect example of this situation.
Legal aspects: Constitutional framework
As we know, The Constitution of India is supreme and consider as a “skeleton to guide”. Every passed act derives its validity from the Constitution itself. Any provision or act which is in contravention with the articles mentioned in the constitution is considered to be “void ab initio”.
But article 256 of the Indian constitution grants powers, which deals with the duty of the state and the union’s executive power and also extending the power of Union of giving required instructions to the State as may appear to the Indian Government to be necessary for the purpose. And this lockdown for 21 days announced by the prime minister is valid in this manner as all these are done to protect whole India from the deadly contagious disease and same recognized by the government and prioritise the interests of society at large and suspending some of the rights of the individual for the benefits of the general public. And it is a well-known fact that this pandemic is affecting every country and India as a whole and the declaration of lockdown was to prevent the life of the people
. Here the Union, the state and the citizens came along and decided to voluntarily waive their right to movement and restrict themselves in certain boundaries to fight against this pandemic disease i.e. Coronavirus together and it is completely valid as it is for the welfare of the society. And in Smt Ujjaim bai vs state of UP, it was held that Fundamental Rights are inviolable except under certain conditions. The rights are placed in Part III of the Constitution, which is regulated ‘Fundamental Rights”, and the conditions under which these rights can be abridged are also indicated in Part III. Briefly stated, the conditions are that they can be abbreviated only by a law in the public interest or to achieve a public purpose.
1. Tracing patients: Surveillance vs Right to Privacy. The right to life and personal liberty is most basic of all our rights and gives meaning to our very existence. Every person comes into the world with a right to his person which has the freedom of moving and using it at his own will. This Fundamental Right is guaranteed under Article 21 of the Constitution of India, which states “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
Right to life as guaranteed under article 21 of the Constitution of India also includes the right to health and states being the duty bearer to protect the health and wellbeing of its people. The right to health also has its reference in Article 38 – Social Order to promote the welfare of the people under the constitution of India
. It is also stated in Section 2 of Epidemic Law that authorizes a state to inspect people and segregate suspected patients. Measures and procedures for the check-up, vaccination, and vaccination of persons, including their segregation in a hospital, temporary accommodation, or otherwise can also be taken.
“necessitas non habet legem” – necessity knows no law.
In the time of Pandemic, we should not lose vision of the inventive capacity of the law to maintain its significance. Necessity is a doctrine which ties the gap between what the law allows the government to do and the government’s actual response at the time of emergency. Restricting the free movement of the citizens of India and to assemble peacefully in the territory of India, guaranteed under Article 19(1)(b) and (d) of the Constitution of India. The framework of the said laws imposing restrictions have been curtailed to maintain public order and in the interest of the general public. Limiting some of the rights of an individual for the legitimate aim to protect them from this deadly virus is itself a need of the nation right now.
2. Quarantine vs Right to freedom of movement
The consequence of law which curtailed individual freedoms guaranteed by Article 19 would be required to answer the tests of reasonableness stated in clauses 2 to 6 of Article 19 and the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does not amount to an unreasonable restriction within.
All citizens of India guaranteed with protection of certain rights such as Fundamental rights “to move freely throughout the territory of India” and “to assemble peaceably” which guaranteed under 19(1) (d) and Article 19(1) (b), respectively.
Quarantine being a restriction on free movement and assembly of people prima facie violates fundamental right mentioned in Article 19 of the constitution of India. However, Article 19 (3) states “Nothing in subclause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order”. Likewise, Article 19(5) offers the state power to make such laws in the interest of the general public.
The UN Charter and International law principles also implied here as India being party to these which states that “Member states have the sovereign right to implement their health policies, even if this includes the restriction of movement of people. Article 3 of the International Health Regulations (IHR), 2005 lay down rules for implementation of quarantine, ensuring it to be respectful of the dignity, human rights and fundamental freedoms of individuals.
Quarantine includes the restriction of free movement of individuals, or separation from the rest of the population, of healthy persons who may have been infected, with the objective of monitoring their symptoms and ensuring early detection of being infected.
And Epidemic Diseases Act, 1897 empowers the government to provide better prevention of the spread of dangerous epidemic diseases. Any state government, when satisfied the test of reasonableness i.e., any part of its territory is exposed to an outbreak like coronavirus, may authorize all measures, including quarantine, to prevent its spread. This is the main legal defence of the government to combat this situation of crisis.
“Desperate times breed desperate measures.”
Quarantine, across the world, is proving to be the best bet in the containment of Coronavirus disease and the same is prescribed by WHO. It might be interfering with our liberty but such a reasonable restriction is even permissible under our Constitution itself in the interest of general public and order, it is also our duty as a citizen to cooperate with the government and help to break the chain of infecting coronavirus by being at indoors.
Statutory provisions involved
It is clear that no single law can effectively control the present coronavirus outbreak. It is this reason that there are various provisions of Indian Penal Code (IPC), Criminal Procedure Code (CrPC), the Epidemic Diseases Act and the Disaster Management Act (DMA) is being invoked to govern the current outbreak situation.
3. Penal provisions needed for criminally negligent patients and authorities While dealing with an emergency by the outbreak of a dangerous viral disease, the state may seek the support of its citizens to combat coronavirus. If the desired support is not forthcoming, a regulation may be imposed. For example, Section 144 (Cr.P.C.) empowers the administration to enforce restrictions on the personal liberties of individuals to prevent injury or danger to human life, health, and safety or disturbance of public peace. And section 4 of the Epidemic Diseases Act includes a protection clause that gives state immunity such that “no suit or other legal proceeding can be brought against any person for anything done or in good faith intended to be done under this Act.”
Failure to comply with such restrictions constitutes a punishable violation under the following sections of the Indian Penal Code, 1860.
There are these statutory provisions which direct the authority during this pandemic namely,
The Epidemic Diseases Act, 1897,
The Indian Penal Code, 1860.
The Disaster Management Act, 2005 and
Code of Criminal Procedure, 1973.
The Epidemic Diseases Act, 1897
Section 3 of this Act puts light on the penalty that can be given for potential violations of government order of lockdown. As per this provision, the punishment is given when a person violates any regulation or order made under the Act. The quantum of punishment is recognized under Section 188 of the Indian Penal Code, 1860.
Indian Penal Code,1860: The relevant sections of IPC during this pandemic are Section 188, section 269, section 270, section 271.
i. Section 188 deals with disobedience to the directions promulgated by a public servant, the kind of noncompliance that is most likely to take place during the time of the outbreak and emergency i.e., disobedience which tends to cause danger to human life, health or safety or causes or tends to cause riot or disturbance will be punished with an imprisonment term up to 6 months or a fine up to 1,000 rupees or both.
ii. Section 269 covering negligent act likely to spread infection of disease dangerous to life, which will be punished with an imprisonment extendable up to 6 months or fine or both.
iii. Section 270 covering malignant act likely to spread infection of disease dangerous to life, which will be punished with imprisonment extendable up to 2 years or fine or both.
iv. Section 271 covering disobedience of quarantine rule, which will be punished with imprisonment extendable up to 6 months or fine or both.
The Disaster Management Act
The purpose of this act was to bring to a situation such as an earthquake, flood or fire rather than a disease like COVID-19. However, the Home Ministry on 14th March declared the Coronavirus outbreak as a “Notified Disaster”, thus, bringing into play the provisions of the Disaster Management Act.
Chapter X of this act exclusively talks about offences and penalties.
Section 51 (b) of this act states that whoever, without reasonable cause, refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act. This provision has two facets- Firstly, it is for the persons who leave their homes for nonessential work. Secondly, it is for the persons who are infected from the virus but run away from the isolation ward. Those will be punished with imprisonment of a term up to 1 year or fine or both and can be extended to two years looking at the severity of the offence.
Law to impose a penalty on people spreading misinformation
Section 54 of this act includes punishment for false warning. The section is relevant in present conditions as if a person create or forward fake news and information about coronavirus with an intent to create chaos through social media platforms will be punished with imprisonment of a term up to 2 years and also with fine or both.
This coronavirus is said to have come to India from foreign countries and it must be addressed jointly by the whole nation without internal geographical restrictions and conflicts. As almost all the fundamental rights, right to freedom of movement, right to assemble peacefully right to privacy and various other fundamental rights were practically deferred during nationwide lockdown. But all these are done to protect the public from the deadly virus and government recognized to prioritise the interests of society at large and suspending some of the rights of individual for the benefits of the general public. If we look closely to the need of the lockdown amid an outbreak of coronavirus, we can draw that there was a legitimate aim of the state to impose the lockdown to protect the general public from the contagious virus and protecting the nation from this outbreak. Difference in steps taken by different authorities created confusion and lawlessness and cause panic among the general public. I believe government measures of social distancing under the nation-wide lockdown to prevent the spread of the contagious virus is appreciable and the only way to combat the spread of coronavirus.
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