Increase in transport and communication services across the globe has led to rapid growth of trade and commerce between nations. The rise in international commercial transactions has led to a significant rise in disputes. As a result, there is a need for an effective and unified dispute resolution system which can sufficiently settle disagreements/issues among parties in dispute and which has to be arrived at keeping in mind the differences in laws of every nation.
Litigation, nowadays, is becoming progressively international in nature. More and more often parties choose arbitration as an alternative dispute resolution method especially when it comes to international commercial disputes. Consequently, it has become increasingly frequent in international disputes for a recalcitrant party to attempt to disrupt the proceedings by bringing the dispute covered by the agreement before national courts (ordinarily those of that party’s own State) and seeking an “anti-suit injunction” from those courts.
Anti-suit injunctions are court orders whereby the court restrains a party from commencing or continuing a suit in a court. Anti-suit injunctions are national court orders used especially in common law countries, in order to protect the jurisdiction of the arbitral tribunal. An anti-suit injunction is rendered against a party with the intention to either prevent that party from commencing an action in another forum or forcing that party to discontinue such an action if already commenced. If the party disregards the anti-suit injunction and continues with the foreign action, it will face sanctions in the enjoining forum for example, a contempt of Court order may be issued by the domestic Court against that party.
Anti-suit injunctions originated in England and evolved from a mechanism intended to restrain proceedings in another domestic Court, to an effective tool capable of restraining the pursuit of litigation overseas. The origin of anti-suit injunctions can be traced back to the jurisdictional contretemps between the Common Law Courts and the Ecclesiastical and Admiralty Courts. The Common Law Courts availed themselves of what was known as a “writ of prohibition”, against the pursuit of litigation before the Ecclesiastical Courts and the Admiralty Courts. Anti-suit injunction eventually became an effective means by which the Court of Chancery sought to restrain the pursuit of proceedings before the Common Law Courts, the outcome of which, was anticipated to be incompatible with the principles of equity.
The question of whether the Court of Chancery had the power to issue anti-suit injunctions to restrain litigants from pursuing foreign litigation first arose in the seventeenth century in Love v Baker. Contrary to the Bar’s opinion, Lord Claredon LC warned that the granting of such injunction would be a “dangerous case” and opined that it is perhaps safest to reject the application for the injunction in restraint of foreign proceedings in Livorno. Lord Claredon’s conservative concerns were, however, short-lived, and based on Lord Portland’s opinion it was agreed that the Court had the power to issue an anti-suit injunction to restrain proceedings in Holland. Although, the injunction was eventually shot down on procedural grounds, this case marked the first step towards the permissibility of anti-suit injunctions in restraint of foreign proceedings. Given that the Court had already ruled on the power to issue such an injunction, in the subsequent case of Wharton v May, an anti-suit injunction was successfully granted to restrain proceedings in Ireland.
Conditions and Procedure for Grant
The quintessential pre-condition for granting an injunction is that Courts have in personam jurisdiction over the injunction defendant. Antisuit injunction is necessary to prevent an irreparable miscarriage of justice. Generally, anti-suit injunction is granted under the following circumstances:
i .When principle of forum non conveniens (forum not agreeing) is applied;
ii. When the first Court is more convenient to the parties;
iii. When a motion of forum non conveniens has been made in the second jurisdiction and has subsequently failed; and
iv. When a complainant is not unduly disadvantaged by proceeding in the first jurisdiction. In Forum Ins. Co.
v. BristolMyers Squibb Co., it was held that an anti-suit injunction is appropriate in four instances:
i .to address a threat to the Court’s jurisdiction;
ii. to prevent the evasion of important public policy;
iii. to prevent a multiplicity of suits; or
iv. to protect a party from vexatious or harassing litigation. Although the test for issuance of an anti-suit injunction to a person amenable to the jurisdiction of the Court in person has been varying, the underlying principle is that jurisdiction is exercised over the defendant “where it is appropriate to avoid injustice” or where the foreign proceedings are “contrary to equity and good conscience”.
In the context of contractual injunctions, the first consideration which the Court may take into account in deciding whether there are “strong reasons” against the grant of an injunction, is the nature of the choice of Court clause. If it appears that the injunction defendant did not personally consent to the contractual clause, then this factor might suggest against the grant of the injunction. Although, it is unlikely that this consideration alone constitutes a “strong reason” against the grant of an injunction, it may nevertheless be taken into account by the Court in deciding whether to grant an anti-suit injunction or not.
On the other hand, in the absence of a jurisdiction clause, the Court may, in the exercise of its discretion, employ several factors in order to establish which of the two Courts, local or foreign, is the most appropriate forum. These are often referred to as the forum conveniens considerations, and can include considerations, such as, the location of witnesses and other relevant evidence; the connection of the litigants with the foreign forum; the applicable law; the reasons which may have motivated the other party to pursue litigation in the foreign forum; and any significant prejudice which he may have suffered, had he brought proceedings in the other forum. Moreover, any overlapping proceedings in another forum and whether the foreign Court would have adhered to the principle of equality of arms and granted a fair trial to both litigants are also factors which may be taken into account by the Court.
Since anti-suit injunctions are deeply rooted in equity, then the equitable maxim of ‘whoever comes to equity must come with clean hands’ is also applicable. This can be translated as meaning that the conduct of the injunction claimant is also taken into account when adjudicating the discretionary power. Delay by the claimant in initiating proceedings for the anti-suit injunction, as well as voluntary submission to the foreign jurisdiction and inconsistent behaviour, are all factors which the Court is likely to consider, when requested to issue an anti-suit injunction.
Comity considerations may also play an important role in deciding whether or not to grant an injunction. If an injunction is requested to halt proceedings in a foreign forum which is more likely to consider the injunction as an abusive interference with its jurisdiction and sovereignty, then the Court may want to exercise a higher degree of diligence in its decision.
The Indian Practice
The Indian practices on the grant of anti-suit injunctions resembles the practices of the English Courts. It has been held that this doctrine has to be applied with care and caution as it involves the issue of respect for corresponding international forums. The said legal position is abundantly clear in view of the judgment of the Supreme Court in Modi Entertainment Network and Anr. v. W.S.G. Cricket Pte. Ltd., AIR 2003 SC 1177. It was observed in the said judgment that the Courts in India like the Courts in England are Courts of both law and equity and thus the principles governing grant of injunction an equitable relief by the Court would also govern grant of anti-suit injunction, which is a species of injunction. However, the rule of ‘comity of Courts’ requires this power to be exercised sparingly because such an injunction though directed against a person in effect causes interference in exercise of jurisdiction by another Court. In this case the Supreme Court propounded guidelines for granting antisuit injunction, which are as follows –
i. In exercising discretion to grant an anti-suit injunction the Court must be satisfied of the following aspects:-
a. the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the Court;
b. if the injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and
c. the principle of comity – respect for the Court in which the commencement or continuance of action/proceeding is sought to be restrained – must be borne in mind.
ii. In a case where more forums than one are available, the Court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (Forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexations or in a forum non conveniens.
iii. Where jurisdiction of a Court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusive or nonexclusive jurisdiction of the Court of choice of the parties are not determinative but are relevant factors and when a question arises as to the nature of jurisdiction agreed to between the parties the Court has to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case.
iv. A Court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it where parties have agreed to submit to the exclusive jurisdiction of a Court including a foreign Court, a forum of their choice in regard to the commencement or continuance of proceedings in the Court of choice, save in an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a contracting party to be relieved of the burden of the contract; or since the date of the contract the circumstances or subsequent events have made it impossible for the party seeking injunction to prosecute the case in the Court of choice because the essence of the jurisdiction of the Court does not exist or because of a vis major or force majeure and the like.
v. Where parties have agreed, under a non- exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti-suit injunction will be granted in regard to proceedings in such a forum conveniens and favoured forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors before submitting to non-exclusive jurisdiction of the Court of their choice which cannot be treated just an alternative forum.
vi. A party to the contract containing jurisdiction clause cannot normally be prevented from approaching the Court of choice of the parties as it would amount to aiding breach of the contract; yet when one of the parties to the jurisdiction clause approaches the Court of choice in which exclusive or non-exclusive jurisdiction is created, the proceedings in that Court cannot per se be treated as vexatious or oppressive nor can the Court be said to be forum non conveniens.
vii. The burden of establishing that the forum of the choice is a forum non conveniens or the proceedings therein are oppressive or vexatious would be on the party so contending to aver and prove the same. The right to a fair trial, encompasses the right to an effective judicial remedy, which allows the claimant to assert his civil rights. Although it has been accepted that these rights are not absolute, any restriction on such rights must not limit the “access to a Court” to the extent that the very ethos of the right is tainted.
In Re the enforcement of an English anti-suit injunction, it was concluded that the grant of an anti-suit injunction to restrain litigation in a foreign court amounts to an infringement of the right of access to a Court. In the defence of the anti-suit injunction, it has been argued that the right of access to Court does not apply when the injunction is sought to restrain the pursuit of litigation in a foreign Court. In other words, supporters of this line of thought hold that the right of access to a Court only comes in where a claimant is restrained from pursuing litigation before a domestic Court.
Even though the principle of comity has been given regard to by the Apex Court, there have been instances where an anti-suit injunction has been granted against a foreign forum, based on facts and circumstances. This raises the question of whether an anti-suit injunction can be granted by a Court against a domestic/Indian Court of concurrent jurisdiction. In this regard the judgment of the Division Bench of the Delhi High Court in the case of Horlicks Ltd. v. Heinz India (P) Ltd.,(2009) 164 DLT 539 (DB),is relevant wherein the Court held that an anti-suit injunction can only be filed against a Court of a subordinate jurisdiction and not of a concurrent jurisdiction. The relevant portion of the judgement is as follows:
“92. On the conspectus of the aforesaid, we hold as under:
(i) The doctrine of anti-suit injunction though may be applicable both in foreign forums and domestic forums in different countries has no place in India regarding another domestic forum in view of the specific bar created by Section 41(b) of the said Act as interpreted in Cotton Corporation of India Limited v. United Industrial Bank Limited case (supra). It would apply only in case of a foreign forum or in a situation where an injunction is sought against a domestic Court which is subordinate to the one where such an application is made.”
Summarising the principles for grant of an anti-suit injunction, the Supreme Court held, in the case of Dinesh Singh Thakur v. Sonal Thakur, (2018) 17 SCC 12, that such a request deserves to be dismissed/refused when by such refusal no grave injustice would be suffered by the party seeking such injunction. It further held that power should be exercised sparingly, carefully, cautiously and not in a routine manner, as the grant of the injunction is governed by the doctrine of equity.
Anti-suit injunctions are a powerful tool to enforce a decision on jurisdiction. But it goes without saying that the exercise of power by the domestic forum leads to frustration on the side of the foreign forum because of the interference with its jurisdiction. Resultantly, anti-suit injunction is by far one of the most controversial remedies which could be granted by a Court. From the very beginning of its development, the English Courts were aware of its implications and intricacies and as the baggage of critique continued to increase, Courts of Common Law, admittedly limited its availability by increasing the thresholds for its grant but never sought to surrender such tool from their armoury.
Anti-suit injunction is indispensable for private justice and its grant is, therefore, warranted under Common law, even if at the expense of public law considerations. The Indian Courts, following the Common Law trend set by the English Courts, have laid down a set of rules for grant of anti-suit injunctions, which are now more or less established. On the other hand, rules however comprehensive, may not be able to anticipate the plethora of scenarios that may arise which necessitate a degree of judicial discretion. In such cases it would be advisable to for parties entering into commercial transactions, to clearly define the jurisdictions of the Courts and laws applicable, beforehand. Nevertheless, inspite of the need to exercise judicial discretion the Courts would be required to do so in a careful and thought-out manner to meet the ends of justice and satisfy the doctrine of equity and comity.
Ajay Bhargava (Senior Partner), Arvind Kumar Ray (Principal Associate) and Shivank Diddi (Associate) are part of the Dispute Resolution practice of Khaitan & Co, New Delhi.
Pressing priority: Stringent laws for formulation of Intellectual Property Rights in sports law
The sports have been considered as a very important part of the country. Various sports are played in-country at the international level. There was a time were sports was considered as an activity but, with the time, sports became a crucial aspect and it also demanded a need for laws related to it.
The main issue that stands with sports is Intellectual Property Rights. The intellectual property rights are very important to safeguard anything from being used by any non- compliant authority. The cases that have been registered in India concerning sports are not seen as much. However, every other country such as the USA has advanced the scope of the sport and is the need of our country.
The legislature, judiciary and the administration, all need to take severe steps to provide stringent legislatures concerning sports. Such legislation which would also provide for the IPR protection to the sports law in the country. This will resolve many issues related to broadcasting, copyrighting and some important rights saved.
AUTHORITIES OF SPORTS IN INDIA
Various governing bodies in India are not governed under the Ministry of Sports of India. the body is BCCI for cricket, Indian Hockey Federation, All India Football federation etc. all the bodies are individual and not concerned with the state. However, in the case of Zee Telefilms v. Union of India,it was considered by the Supreme Court that BCCI denied to a part of the governing authority but, this should not be the case as it is important to have a proper governing authority for the bodies. This was stated considering the importance of sports in the country.
For making the Sports Law a well-framed and a stringent one, it is important to remove the individuality of the authorities. Since there is not a proper code for governing sports in India, The National Sports Development Code, 2011 does the governing. It governs the National Sports Federation of the country. In the case of Indian Olympic Association v Union of India, the validity of the above-mentioned code was upheld by the Delhi High Court.
PREVAILING SPORTS LAW IN INDIA
The Constitutional entry 33 in List II makes it difficult for making sports as a national reform as it puts the sports in the list of the state legislature. At present, sports bodies are said to make rules and regulations for sports. Such teams constitute of some members that take over the authority and take actions over the errors that arise. Strict actions are taken against them.
Such bodies are considered for selecting members for the sports at different levels. The rights related to broadcasting and telecasting is also given by these bodies. This means that not the legislature but, the bodies. This means that everybody makes rules on its own and does not coordinate with each other. This can lead to severe problems and the infringement of the rights by a third party too.
It’s not the sports law that is presently prevailing in the country but, the authorities that prevail over the rules and rules and regulations of the sports. The authorities that are at present are individual and therefore, they are away from the legislations and the governing authorities of the Central Government.
THE NEED FOR IPR IN SPORTS
Every commodity of any activity such as art, sports etc needs branding to increase its value. The branding means that a name, logo, tagline that legally becomes reserved. The reservation is done through IPR laws. The laws provide different kinds of rights such as copyright, trademark and patent depending on the type.
Different kinds of IPR are needed for different sectors of sports. The need forthe patent is for reserving the rights of emerging new records in the field of sports. Similarly, the need forthe trademark is for the players who become successful and derive their team for a sport. The trademarking of such things will increase the loyalty of the viewers too. Designs are important to make sports assets more valuable.
Also, copyrights play a vital role. The broadcasting of sports is an important aspect. This is the way of earning revenue for further development. This also constitutes the main issue in the sports industry because sometimes, the unknown authorities broadcast the matches effecting the contracts of the sports authorities with the channels.
IPR LAWS IN THE COUNTRY: NEED FOR NEW LEGISLATION
Several IPR laws in India act prevail in the country for the different kinds of Intellectual Property Rights. These laws provide for the guidelines and the rules and regulations concerning intellectual property rights. However, some points lag in them concerning sports. The changes needed under sports in the laws are as follows:
The Copyright Act, 1957- the act consists of all the information related to the copyrights, rules, regulations and other essentials. These are not being collectively followed in the sports field and there arises the problem. The amendment can be done in the act adding “sports” as an important definition in the interpretation clause and in the other sections through which it becomes clear about the areas where sports need the copyright.
Trademarks Act, 1999- the changes needed in this act is also similar to that of mentioned for the copyright act.
The other minor acts such as the act of patents and design must also get the amendments done. However, these acts provide for the information regarding these intellectual property rights in general. The increasing diversity of the sports in the country, a separate legislature for implementing these copyrights is needed. The legislature can be implemented to safeguard different aspects of sports.
The legislature can be implemented in the following way:
• The interpretation clause having the definition of all the important terms related to sports.
• The provisions having the procedures to get the rights reserved.
• The items and the procedures related to sports that need intellectual property rights.
• The punishments also need to be mentioned for giving punishments to the people not following the law.
• The miscellaneous part concerning the powers and authorities.
In this way, proper central legislation can be formed that can look after the sports in the country. This will prevent frauds and unwanted consequences.
NEED FOR STRINGENT SPORTS LAW
The laws in India concerning laws are much backward in comparison to laws in the USA, France and other countries. The reason for the same might be less importance given to the legislature of sports and derogatory powers of the authorities. The IPR Laws exist in the country but, they need minor amendments. However, this is not the only backlog that exists. The implementation of the existing laws is also not proper. The reason might be the absence of the single governing authority.
The division of powers to the different authorities make it difficult to implement all the rules in the same way. It is important to have a central legislature that also mentions the powers and limitations of such authorities. This will help in keeping a check over the activities of such bodies. This will ensure that all the authorities are following their duties.
The main impact will on the IPR of sports. The legislation will keep a check about having all the important rights reserved. This will make sports a better reserved activity. Sports in India has made it proud many times and the players give their best. However, sometimes they face the problem due to the absence of the proper sports law.
The Chapter of IPR in the sports law which might include the criteria, compulsions, punishments and every needed step to make sports an IPR oriented area. This is for the assurance of the people who play and who invest money. The major problem in relation the broadcasting will also be resolved after following the minute steps. These steps can bring about major changes that will lead to reformation in sports in the country.
One of the most important feature of IPR in sports law is to prevent Ambus Marketing. The meaning of Ambus Marketing can be clearly drawn out from the landmark case of National Hockey League (NHL) vs. Pepsi-Cola Canada Ltd, where a controversy arose between Pepsi Cola and Coca Cola, where Coca Cola was appointed as the official sponsor of the tournament by NHL while Pepsi has broadcasted an advertisement claiming to be the official drink of the tournament, the judgement states that there can be no claim of passing-off in the present case by Pepsi-cola. Ambus Marketing can be broadly be classified as attacking in a latent way. Therefore there is urgent need to prevent the copyrights and trademark of the owners through proper registrations of logo, brand , marks etc. which are linked with the sporting event
The condition of the sports law is not so proper in the country. The authorities that are prevailing in the country are also not concerning the governmental authorities. This means that there is no inclusion of the government in the sports law. the Central Authorities that must be concerned with the sports are not included. This means that making the authorities the governmental bodies is the need of the hour. This is because the rules and regulations they make might contradict with each other and this will never lead to a solution of having stringent laws concerning the IPR and sports.
The need for IPR is much more that can be explained. The problems that are being faced in the present era can decrease the importance of sports in the country shortly. This is because the people whoa re-associated with it might be having some expectations regarding the reservation of their rights. The existing problems are showcasing the other side.
Therefore, the need for stringent sports law is more than the need for the amendments in the present IPR laws. This is because the enforcement of such laws will not be seen in such away before we have a central authority governing it. As soon as the authorities will have a hold above them to show them the right path, the decisions taken by them will be more accurate. The much need for sports law is increasing day by day along with the increase in the problems. Also, when fresh legislation will be drafted, the judiciary will have better look upon the issues of the sports and the amendments to it can be made in the coming future for dealing with the situations along with the time.
“Intellectual-property rules are clearly necessary to spur innovation: if every invention could be stolen, or every new drug immediately copied, few people would invest in innovation. But too much protection can strangle competition and can limit what economists call ‘incremental innovation’ – innovations that build, in some way, on others.”
The US Supreme Court appointment conundrum
The United States of America has an intense ongoing debate concerning the elevation of Amy Coney Barrett to the Supreme Court. President Donald Trump’s four-year tenure ends shortly— the voting through postal ballots for instance, has already begun and the results of the elections will potentially be declared sometime next month. In the United States, unlike India (and the UK) Judges are purely political appointees.
Due to Justice Ginsburg’s death, there is now a vacancy on the Supreme Court. Out of the of 8 judges who are presently serving on the US Supreme Court, 5 already are perceived as ‘conservative’ and are Republican appointees, and three are ‘liberals’ and are appointed by the Democratic Party. Of the total nine Justices in the Supreme Court, two have already been appointed by Trump. If Justice Barret’s nomination is confirmed (which barring a moral awakening in the Republican Party, it will most likely be confirmed)— then Trump would have appointed 30 percent of the Supreme Court Justices in a mere four years of his Presidency. With the expected appointment of Justice Barrett, the number would go up to 6. There are four main concerns which her appointment would create.
The first concern that the presence of a majority of conservative judges pose would come in the form of docket control. The Court is quite selective in picking which cases to hear, and on average hears less than a hundred cases a year. For a matter to be heard by the judges, at least four out of the nine judges need to concur that the matter in question involves significant questions of interpretation and therefore merits the grant of a writ of certiorari. If any such matter does not find the concurrence of four judges, the writ of certiorari is cursorily denied. With the appointment of Justice Barrett to the US Supreme Court, there is quite a likelihood that the sharpy divided 5-4 would be a thing of past as the judges of the US Supreme Court not be particularly inclined to pick on matters which align the favour to the liberal society.
The second concern is that with her appointment, the Supreme Court now has the avenue to be politically conservative at best and outrightly favour the conservatives at worst. In the past, test cases have popped up before the Court which have lead to precedents that have lasted half a century. For instance, Plessy was a test case which swung the momentum for the separate but equal laws. It is not a fantasy to envisage a situation when a similar test case may be put before the Court, which might lead to overruling of a some of the most sharply dividing social issues such as the constitutional right to privacy, or the constitutional right of a woman to have an abortion. In the recent senate confirmation hearings, Justice Barrett was asked to share her opinions on abortion and the impending Obama Healthcare case. She deflected both these questions and did not answer them conclusively. She said that she would do what the law required her to do.
The third concern is the timing of this appointment. A little less than half a decade ago, upon Justice Scalia’s death in 2016, the then President, Barack Obama nominated Merrick Garland. Nonetheless then the appointment could not be finalised- largely owing to the timing of this happening in an election year. An unwritten convention was essentially formed. Four years hence, this was not seen as a concern (in some cases by those who had previously suggested that nominations should not be made in election years). This principle, then widely referred to as the ‘Biden rule’ clearly evaded Trump administration. It was also in breach of Ruth Bader Ginsburg’s dying wish- that her replacement not be made before the next elections.
Fourth, her appointment raises a broader question. Should judges be appointed by the legislative or indeed the executive at all? In a democratic setup it is crucial that a balance is maintained between the branches of the Government. If judges are also political appointees, it erodes a part of this principle. It also certainly breaches the adage that justice should not only be done, but also seen to be done. The irresistible inference is that the nominated judges come from a political nomination and thus the boundaries of separation of power and judicial independence are obscured. The United States appoints judges for life- thus the implications of any appointment are in all probability be felt for decades to come.
Neither the constitutions of India and the United Kingdom’s permit any political interference in the appointments process. In fact the Supreme Court of India outrightly rejected the National Judicial Appointments Commission. Similarly, removing judges from their posts is a cumbersome process that requires majority in both the houses of Parliament and is a power rarely used. No judge has been impeached till date. This ensures that the independence of the judiciary remains intact and proper checks and balances can be nourished.
It is also crucial to remember that whilst most organs of the state have inbuilt checks and balances- courts are mostly their own conscience keepers. They must lead by example-the constitution has given them tremendous powers and as the old adage goes, with great power comes great responsibility. The Supreme Court of the United States is responsible for its own image and its own conscience. It can be conscience of Dred Scott and Plessy orit can be the conscience of Brown v Board. Either way,the world will certainly be watching the developments in the worlds biggest exporter of democracy with close interest..
Raunaq Jaiswal is faculty member at OP Jindal Global University. he holds a LLM from Central European University, Budapest.
Vishavjeet Chaudhary is a barrister by training, currently Delhi based Advocate specialising in criminal law and constitutional law. He holds an LLM from the University of Cambridge.
Digital constitutionalism and personal data protection
Knowing that social media and search engine websites have been at their superior best for tracking down individual behaviour, the new branch of constitutionalism, specifically digital constitutionalism, would not only be working against the state actor but would necessarily also work against the non-state actors such as Facebook and Google.
The efficient tool which is coming around the world for regulating the conduct of social media and search engine websites is to draft a stringent personal data protection Act. India too is following in the same fervour and has drafted a Personal Data Protection Bill, 2019.
The nuanced origin of privacy rights as a fundamental right in 2017 brings along a tectonic(al) shift in the Constitutionalism-Jurisprudence in India. Especially, knowing that privacy necessarily tags along with it the questions of informational privacy, or more specifically the question of digital privacy. Knowing that social media and search engine websites have been at their superior best for tracking down individual behavior, the new branch of Constitutionalism, specifically digital constitutionalism would not only be working against the State actor but would necessarily also work against the Non-State Actors (Facebook, Google, etc.). Interestingly, the realm of digital constitutionalism has many takers with differing opinions. Brian Fitzgerald, an exponential writer in the field of informational constitutionalism (IC), tracks the origin and source of IC within the privacy laws such as patent laws, copyright laws, contract laws, and privacy laws. As per Fitzgerald, these laws represent the adequate constraint requisite for protecting the privacy and integrity of an Individual. However, there are other writers, who trace the origin of Digital Constitutionalism within the realm of Constitutional norms as what some call as a normative counteraction against the digital advancement. Under the normative counteraction, we trace the origin of DC within the already established norms of the constitution, so if I have to say that there cannot be any discrimination in any public place, it is an authority which I can draw from the norm of article 15 (2) of the Indian Constitution. Similarly, I will derive this norm against digital technology which might be discriminatory in public places. Similarly, Article 21 dignity-jurisprudence can be applied to informational privacy. So these normative counteractions can be expanded to work against the State and Non-State actor. However, the expansion of normative counteraction requires a two-fold approach, either, the Non-State actors like Facebook and Google are regarded as a part of ‘State’ and when I say ‘State’ I mean the State as defined under article 12 of the Indian Constitution. As once these entities (Facebook, Google, etc.) are regarded as ‘State’, they shall be as liable for protecting the dignity of an individual as the Government of India is. However, the Indian Jurisprudence has not expanded to an extent where it can recognize the Non-State actors as part of article 12. It was not until 1975 when under the judgment of Sukhdev Singh v. Bhagatram, that Justice K.K. Mathew exponentially defined the idea of ‘State’ and hinted that the idea of ‘State’ also includes the idea of entities discharging the function of State as well. This elaborative opinion of Justice Mathew found few takers in series of judgment following after Sukhdev Singh’s judgment, yet the opinion felt short to bring an overhauling change in the settled jurisprudence of ‘State’ as defined under article 12. Today’s settled rule of ‘State’ derives its authority from the Zee Telefilms v. UoI case 2005 famously known as the BCCI case where the triplet test was categorized by the Supreme Court for recognition of an entity as ‘State’: the test of Function, Finance & Administration. However, in between the last decade, there was a case of BCCI v. Cricket Association of Bihar 2015, where Justice T.S. Thakur had emphasized on the function test for recognition of ‘State’. Assuming that the ‘function test’ is core the essence for any entity to be recognized as ‘State’, the other question which naturally follows this thesis is whether social media and search engine giants like Facebook and Google are discharging functions of ‘State’. Let us Facebook for example; the company today is a multi-billionaire dollar organization with thousands of employees around the world, working round the clock to keep the people connected. However, that is one such feature of the social media giant, the company today is endeavoring to launch its own set of crypto-currencies known as a ‘libra’. As well as the Social Media giant also provides for stress-relief features such as ‘Mark yourself safe’ in case of any natural calamity strikes at your region. Apart from that Facebook has also become one of the prime sources of news/information for the world community at large today. Additionally, the company has also launched its own Supreme Court like an adjudicatory body, known as Facebook Oversight Board (FOB) (yet to become functional). The company already is running a parallel ‘State’, the only difference that could be thought between the State and the Facebook is while there is job-permanency in Government, the Facebook employee does not have that, further, there is a counter-argument to this theory that FB does not have democratic legitimacy to be equated with ‘State’. The latter argument does not seem viable knowing that the FB has over a billion users, so it is not like that the Company is not accepted and used.
The other argument which goes against this pseudo-dualism of private/public entity is the ‘incoherent criticism’ theory, the fact that a private organization can be allowed to work without considering fundamental rights just seems incoherent. Private spaces cannot be spots of discrimination or breach of dignity. Keeping this in mind there are substantive arguments for digital constitutionalism, originating from the normative reactions of the Constitution itself, when I say normative reactions, I mean that there is enough leverage under article 21 to work against cases of breach of informational privacy arising not only by the State but by the non-State actor as well.
The above argument helps us in consolidating the position of digital constitutionalism, one that can be traced to the existing norms of the Constitution. However, the question is whether the safeguarded provided by the existing norms are efficient to handle the situation of a data breach. The Supreme Court through K.S. Puttaswamy (2017) had recognized three facets of privacy: bodily privacy, the privacy of mind, and informational privacy. The third facet of privacy, is the troublesome one, as the judiciary recognized the advent of the digital era, it recognized informational privacy as an essential facet of this era and dignity (Article 21). Yet this recognition of a new facet of privacy does little or no work unless there is a normative safeguard to protect them. Ironically, the distinct safeguard for digital dignity (or informational privacy) in India is governed by three major regulations: the Information Technology Act, 2000, (IT Act, 2000), the SPDI rules, 2011 and Intermediary Guidelines Rules 2011. Yet most of these provisions have turned obsolete seeing the kind of technological advancement has been made in the last decade. The SPDI rules were specifically drafted to bring in a sense of accountability on the e-commerce websites and search engine websites, but these safeguards do not categorize the sensitivity of the information. The new Personal Data Protection Bill, 2019 categorizes personal data into broad themes of sensitive personal data and critical personal data.
The efficient tool which is coming around the world for regulating the conduct of Social media and Search engine websites is to draft a stringent personal data protection Act. India too is following in the same fervor and has drafted a Personal Data Protection Bill, 2019. Interestingly, this is India’s second bill on Personal Data Protection, the first draft was prepared by retired Justice B.N. Srikrishna is known as the Personal Data Protection Bill, 2018, which was pretty much on the lines of the European General Data Protection Regulation (GDPR). However, the new draft of the bill titled Personal Data Protection Bill, 2019 has made some serious detachment from the old bill and has certain provisions that are friendly to the Government.
Now this second bill of PDP needs to be seen under the light of Digital Constitutionalism because PDP becomes an essential tool of restraining the power of State and Non-State actor. This model of Constitutionalism is typically based on the model given by Brian Fitzgerald, searching the Constitutionalism through the medium of statutory laws. Unlike its western counterpart: under the European model, the protection of personal data is regarded as a part of fundamental rights. Whereas in India, data protection has been given a status of statutory rights; so even though the informational privacy requires a strong guard of data protection, the Indian Judiciary has not recognized data protection as an essential part of data privacy so far. A statutory right per se does not have the same amount of assurance as that of a fundamental right, yet it will be too early to discard the personal data protection bill, 2019 for its statutory existence (yet to come).
THE PDP BILL, 2019: A NEW DAWN FOR DIGITAL DIGNITY
It is not a hidden fact that the 2016-U.S. election came as a big revelation for the world at large, it told us that the sanctuary of the house is not that safe place after all. The idea of a digital castle was shuttered by Facebook and other media websites, who as per the news around the world, collaborated with the political analyst firm Cambridge Analytic and manipulated voter choices in the United States. This does not end here, the reminiscence of it are still very fresh with cases being alleged in the Brexit movement in Europe and the Presidential election in Brazil. This is an unending tale with diverse authors across the globe. One of the former employees of the firm also mentioned that the firm had met a few political parties in India as well. This raises some serious threat to individual dignity and freedom of choice (which surely can be traced back to article 21 of the Indian Constitution) in India. Therefore, any legislative attempt to curb the outreach of social media needs to have a consensus ad idem of three parties: Government, the Social Media & Search Engine Websites, and the Consumers (Citizens) of Social Media. All these three parties have an interest in the making of a personal data protection act, therefore all their interest needs to find a place in the act.
The current PDP bill, 2019 does provide for more rights for the data principal (consumer of social and search engine website). The bill recognizes the right to be forgotten (read section 20), the right to erasure (read section 18 (1) (d)), right to correction, and the power of the data-principal to take back its consent. There are different categories of consent required for different categories of personal data (read section 11 of the Bill). All these rights seem like a good move for regulating the exercise of power by large corporations and certainly draws a structural balance of power between the data-principal and data fiduciary (State and Non-State actors taking information).
But it has to be kept in mind any form of digital constitutionalism, either coming from the normative counteractions or statutory laws, it has to work against both the State and Non-State actors. The conventional definition of constitutionalism: as a restraint against the State, cannot be a fully operational definition keeping the digital world in mind. Therefore, the implications of PDP Bill, 2019 have to be against the State and Non-State actors equally. Interestingly, various provisions of the PDP bill, 2019 tends to hint towards over-regulation, which is a classic tale of socialism, the bill started from being a role of parens patriae to turning into the eminent domain. The first default reaction of Governments across the globe against the Facebook fiasco was that of a guardian, and its citizens are like its children who are needed to be protected against the outreach of social media, but suddenly this role has turned into the eminent domain. Where the concerted power has shifted from the Non-State actor to the State actor, if sections 12, 14, and 35 are read carefully, there are enough leverage points for the Government agencies to process personal data without being bound by the regulations of consent. This tends to imbalance the power ratio among the three parties in interest and tends to tilt in favor of the Government. A more neutral role would be required by the Data Protection Authority to mediate the power ratio among the three parties.
REASONABLE EXPECTATION OF PRIVACY
The other theoretical notion which we need to explore in absence of any substantive enactment to safeguard personal data could be the theoretical test of ‘Reasonable Expectation of Privacy’. The reasonable expectation of privacy test was evolved in the U.S. Supreme Court through the rulings of Olmstead v. United States, Katz v. United States, and Timothy Carpenter v. United States. The test simply runs on the premise that ‘Would a reasonable person expect privacy within a particular space’. This subjectively objective test has been utilized by the U.S. Supreme Court for way too long. The Indian Supreme Court too in the case of K.S. Puttaswamy (2017) dealt with this theoretical question, where Justice Chandrachud had given recognition to this test, Justice Chandrachud used the phrase ‘legitimate expectation of privacy’, which in a way can be regarded as a passive acceptance of the test as evolved by the U.S. Supreme Court. However, Justice Nariman did not agree with this test in the judgment and rather showed dismay at this test, knowing that Indian Jurisprudence does not agree with ‘waiver right’, therefore applying any test of a reasonable expectation of privacy would have serious repercussion on non-waiver jurisprudence of India.
However, this brings forth a great jurisprudential inquisitiveness for us to ponder upon, is it possible that till the time no substantive enactment is made in, the test of a reasonable expectation of privacy could be applied to fill in the intricate gaps within privacy jurisprudence in India.
Ashit Kumar Srivastava is Assistant Professor of Law at National Law University-Jabalpur.
Protection of whistleblowers in India: A myth
A large number of whistleblowers have been RTI activists who believe that by doing this they can
reform the government and end the malpractices that are present in the system.
The main reason why people think of this option is the anonymity of their identity. Many people want to expose the malpractices present in the system but they avoid doing that because they have to give their identity and that puts their lives into danger. These people want to expose the malpractices so the only option left with them is to take the help of these online sites to bring all these data in public. It is a lot easier option to expose anything via Internet because here we don’t have to get the print out of all the documents. Nowadays all the government offices have also become digitalized, so it is very easier for low-level employees to get secret data that is enough to expose any malpractices present there.
The act in our country doesn’t allow anonymous compliant to be filed and if any such complaint is filed it is rejected straight away and the complainant has no other option than using the online tools for disclosing information.
“The purpose of whistleblowing is to expose secret and wrong ful acts by those in power to enable reform.” — Glenn Greenwald
The term whistleblowing can be understood as raising our voice against some malpractices that are there in an organization. It can be understood as when any person discloses any information that is illegal or unethical present in any organization to the people at large. The term whistleblowing originally came from sports where referee blows their whistle to ensure that there is no foul play involved in the match. The RTI act 2005 is an effective tool for whistleblowers, because of this act only they can obtain any information about activities which they think are illegal or unethical. In many cases, they can bring corrupt practices to light by using this act only. A large number of whistleblowers were RTI activist, who believes that by doing this they can reform the government and end the malpractices that are present in an organization. But by doing this they have a constant threat to their lives because the information they seek from the government or any public offices can destroy the carriers of many corrupt officers.
These officers hold a very big position in these offices and have political connections as well so they can do extreme measures to take revenge. We can say that there were several problems in the existing structure of the act, lack of anonymity of the information seeker raises the chances of getting threats from the people who were at discomfort because of information. People use to harass or give threats to the person to take the request back and if the person did not do so then they even kill the person. Some of such examples Are the killing of Rajendra Prasad in Bihar who exposes the local government for corrupt practices in the police recruitment process and the public health sector as well in another case an RTI activist named as Amit Jethwa who exposes the illegal mining in the Gir forest area of Gujarat also gets killed. In the year 2003, an engineer named Satyendra Dubey in Bihar shot dead after he exposes the malpractices present in the golden quadrilateral project. After this, a call for an act that protects the whistleblower in India arises. After the wait of so many years in the year of 2014, a whistle blower protection act is enforced. Under this act, it is the government’s responsibility to ensure the protection of the whistleblower against the victimization and to conceal their identities. But even after the introduction of this act the number of death of the RTI activist continue to increase in our country. some states also say that they will provide police protection to those activists whose lives were in danger but there were several loopholes in this system as well.
LEGAL FRAMEWORK OF OUR COUNTRY ON WHISTLEBLOWING
The Indian companies (Amendment) Act, 2017 – There is a concept of whistleblowing that is provided by this act, but this term is nowhere expressly mentioned in the act. Under chapter 14th of the companies’ act 2013, that is inspection, inquiry, and investigation the concept of whistleblowing is given. Under the act, it is said that whistleblowing is not an individual job to do but it is an obligation of everybody who is working for an organization to look at its functions and report if he thinks that the organization is not working properly. Under the section 218 of the act, protection is given to the employees while the investigation, this act promotes that every individual who thinks and has reason to believe that the company is using any malpractices or not doing the work by the companies act 2013 then he/she can make an official complaint of the same to the registrar of the company.
Whistleblower protection act 2014- The main motive behind the incorporation of this act is to provide a platform where any person can disclose any information regarding the malpractices or illegal activities present in a company or they can file a complaint against the public servants who were misusing their powers. This act provides us the opportunity to disclose any information through public interest disclosure before the competent authority. The person who is disclosing any information through public interest disclosure has to reveal his identity before the authority and no complaints should be entertained if the person is not revealing his identity. The identity of the complainant is needed only to cross check that whether the complaint is filled by himself or any other person is using his name without his knowledge. If the identity and the facts of the complaint are established then after that the authority will investigate into that matter discreetly. If the identity of the complainant is disclosed by any means then there should be an internal inquiry in that manner and the person responsible for disclosing the identity should be punished according to the law. This act also protects the person against any victimization, if the authority thinks that there is a need to protect the complainant then they will do the necessary arrangements to protect the complaint from any threats.
• THE INFOSYS EPISODE In this case, a group of employees filed a complainant against the top management of the company under which it is stated that the company is using unethical and illegal practices to increase the profits and the short term revenue. The complainant sends that complaint to the board of directors of the Infosys and the US Securities and Exchange Commission because the company is registered in the US and it allows filling confidential complaints with it. In the complaint, the complainants did not reveal their identity because if he will reveal his identity then he has to face the retaliation of the same. The complainant also assured that they have evidence such as call recording and a copy of the email that will prove the above allegations. In the complaint, he alleges the CEO, Mr. Salil Parikh that he directed them to manipulate the documents and make wrong assumptions. Another thing that is stated in the document is that the position of the CEO of Infosys is to be based in Bangalore itself so why the company is not forcing the CEO to begin his work from Bangalore, not from Mumbai. The funds that are used in the visits of the CEO to Bangalore belong to the company, if he wants to work from Mumbai then all the traveling expenses to Bangalore are covered by his salary only not from the funds of the company. But after all the investigation conducted by the audit committee of the company, they gave a clean chit to the CEO of the company that they did not find any substantial evidence confirming the same. The SEC also gave a clean chit to the company in this matter.
• THE SATYAM SCAM – In this, the company misrepresented the accounts of the company to the board, the investors as well as the shareholders. In this scam, the company is alleged in fraudulent auditing practices that are done by the chartered accountants and the auditors of the company. This company is following the whistleblowing policies since it’s starting but it is not followed correctly and due to that only it leads to such a big scam. In this scam, the chairman of the Delhi metro rail corporation suspected big mischief that is happening in the company and raised a red flag about the same in front of the head of the planning commission of India. After all these accusations the owner of the company Ramalinga Raju surrendered himself to the police for the fraud. The original whistleblower that is the chairman of DMRC faced defamation charges by the Andhra Pradesh government because of his letter.
• THE RANBAXY COMPANY FRAUD- In this the whistleblower named Dinesh Thakur was an employee of that company and he suspected that some malpractices are being practiced in the company and because of that he raised his concerns to the concerned authority. But after that, he was forced to resign from the company because the issues he raised consists of drug development, manufacturing, and testing data, and these were very serious allegations so the company management forces him to resign. After resigning he started working for the US food and drug administration and from there he was able to expose the malpractices present in the Ranbaxy Corporation. Only because he took the protection of the US whistleblower protection programme.
WHISTLEBLOWING IN NEW ERA: BY INTERNET
The main benefit that people think of this option is the anonymity of their identity. Many people want to expose the malpractices present in the system but they were not doing that because they have to give their identity and because of that theirs, as well as their family, lives come into danger. These people want to expose the malpractices so the only option left with them is to take the help of these online sites to bring all these data in public. It is a lot easier option to expose anything by the internet because here we don’t have to get the print out of all the documents, where we can just share them as they were available in soft copies. Now a day all the government offices have also become digitalized so it is very easier for low-level employees to get secret data that is enough to expose any malpractices that were present there.
There were many sites such as wiki leaks that offer the whistleblower a sophisticated platform to give that information without giving any of their personal information. They claim that they even do not keep the record of where you uploaded that thing, your time zone, or even your browser. Due to all of these benefits people tend to use these platforms more than the government laid procedures because in that we have to disclose our identity. With all the benefits that we are getting by the online platforms, there were some risks also attached to them such as the threat to national security. Our government agencies have some power to protect national interest they can have some information as secrets with them. These documents are very important for the development of the country and if such documents are leaked by anyone over the internet then the image of the country is degraded worldwide. It will also jeopardize the security of the nation, so we have to be cautious all the time before using any platform for discussing such things.
MEASURES TO PROTECT WHISTLEBLOWERS
• PUBLIC INTEREST: As discussed in the case Common Cause and Ors. Vs. Union of India and Ors. The Supreme Court has mentioned that the whistleblower cannot be penalized if he discloses any confidential information for the public interest. Currently, as per the act, every disclosure is a public interest disclosure, there is no specific definition for the public interest is given in our statutes. Because of this many times, there was confusion regarding the information that whether it can be of public interest or not.
There is a difference of opinion between many agencies regarding this topic so in our country we need a test that could define whether the disclosure of particular information is of public interest or not. We can decide this thing by looking at whether the disclosure of information informs the public about the working system of the organization, whether the disclosure helps in the decision-making system of the government, whether the disclosure of information informs the public about the danger that is there on their lives because of the negligent conduct of an organization if these type of disclosure is happing by anybody then the agencies can choose not to disclose by saying that it is not in the public interest but by seeing the larger picture in the place we can see that the agencies were only trying to save themselves from the embarrassment caused by their actions. So there should be a test to determine this in our country.
• ANONYMOUS COMPLAINTS: The act in our country doesn’t allow anonymous compliant to be filled and if any such complaint is filled it is rejected straight away and the complainant has no other option than using the online tools for disclosing information. In our country the government didn’t entertain the anonymous complaints because several complaints are there without any evidence, these are filled only to defame that particular person. It would take a very large amount of task force and time to check the validity of each complaint and to save themselves from this, the government didn’t allow anonymous complaints. There is a need to find a solution to this problem because many times the complainant did not want to disclose the name and he could have some information that is of national security and because he cannot disclose such information to the government he chooses to disclose it online and the information jeopardizes the national security. In this case, we cannot blame the complainant completely because even we did not give him the chance to disclose that information to us. Some countries develop a solution to this problem such as establishing a hotline in Germany that allows the whistleblower to share his information without giving his credentials, In Indonesia, they develop a website where the whistleblower can share such information and in South Korea, they also established an anonymous hotline for this.
· VICTIMISATION: The act in our country has a very general idea about the protection of the victimized whistleblower. It only directs the concerned authority to give protection to the whistleblower but the authority has the final call over it and in almost all the cases the local authority was not so efficient in providing securities to them because of the local pressure by those against whom the whistleblower has filled the complaint.
Certain things could empower the whistleblower if added in the act were if the whistleblower has the entitlement of getting a transfer from a place or to revoke his transfer then this will give some sense of job security to him. In many cases, the whistleblower is falsely arrested in some different cases to pressurise him to take back his complaint so there should be a rule of immunity from prosecution given to the complainant. He should have given legal assistance by the government to fight from any other false complaint against him. People try to harass the whistleblower in any way possible so if he had legal assistance with him then he can fight with all of this easily. If the whistleblower thinks that he has some kind of threat to the life of him and his family then they all should have given police protection. The competent authority may analyze the threat level and after that, they can decide the level of protection they get.
• INCENTIVES: There is no such concept of giving incentives is there in the act but if some person provides a false complaint against someone just for his grudge then the person will get punishment according to section 17 of the act. So if any person is getting punished for giving false information then why not give a reward to the person that discloses very important information and because of that information the government gets various benefits and also the lives of the people are saved. So according to me, the government can give some incentives to such people. The only problem, with this rule, is that after this many people will complain only about the reward.
But this problem can be solved the government punishes those people who allegedly file complaints to settle his grudge then only in that way the government can recognize that whether the complaints filed by him are in the interest of the public or not.
In our country, the condition of protecting the whistleblowers is not very encouraging, even after implementing so many acts and doing amendments to them the condition of the system is not good. One of the major problems is corruption is present in every department and office whether private or government. Companies don’t let their employees speak against them, and if anyone dares to raise their voice against the malpractices then the company use its enormous wealth and power to win that case and after that the employee that raised his voice, either he gets terminated from the company or his life becomes miserable their so he had to leave that company. In our country to be a whistleblower enormous strength is required, everybody cannot take such amount of pressure that a whistleblower gets in our country.
FEMALE GENITAL MUTILATION: DEEPEST GASH IN THE HONOUR OF WOMEN
Ad infinitum, the first message a girl gathers about her body is that it is flawed – too fat or too thin, too dark or too freckled. But for some girls, the message is that, to be accepted by the wider community, their bodies must be cut, reshaped and altered through a practice popularly known as female genital mutilation (FGM). FGM is a practice involving removal of female genitalia by a sharp iron shank for nontherapeutic reasons. FGM is an egregious traditional practice which has many ill effects on the health of a female, which has been practiced on approximately 200 million girls and women in 30 countries including India hitherto. FGM leads to many complications in a female body with age, wherein it holds no single benefit to them, and even in worst case scenario it could lead to death of an individual. FGM is a serious human rights violation which should be eradicated, by enlightening people about the detrimental effects of FGM.
A lot of ink has been dribbled in the effort to comprehend what Female Genital Mutilation is. In the words of WHO, “Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for nonmedical reasons”. FGM is also known as female cutting or circumcision, and by many other terms, such as sunna, gudniin, halalays, tahur, and khitan, among others.
Every year, February 6 is observed as International day of zero tolerance for female gentil mutilation. The origin of this practice could not be traced but FGM is highly concentrated in a swathe of countries from the Atlantic coast to the Horn of Africa, in parts of the Middle East such as Iraq and Yemen and in Asian Countries like Indonesia.
This practice is persevered by elderly people of the community, who take their infants or young daughters to “traditional circumcisers”, who play pivotal role in carrying this orthodox practice in the name of religion. The job of circumcisers is to cut female genitalia, with or without anesthesia, partially or totally depending upon their usual practice.
The excruciating pain sustained because of this incessant practice does not end with the healing of wound but instead it stays with the person for a lifetime as it leads to many other problems like sexual problems, birth problem with many other which only the person who had endured that pain could understand.
“The pain perpetrated by FGM does not stop with the preliminary procedure, but often endures as ongoing torture throughout a woman’s life.”
Why it is practised?
In many of the countries where FGM is executed, it is an entrenched social and cultural custom rooted deeply in gender inequality where violence against females is socially sustainable.
The reasons behind the practice differs. In some situations, it is seen as a sacrament of passage into womanhood, while others see it as a system to suppress a woman’s sexuality. Many communities practice genital mutilation in the faith that it will ensure a girl’s happy marriage which ultimately ensures family honor. Some associate it with religious beliefs, although no religious scriptures entail it.
FGM is allied with cultural ethics of femininity and modesty, which include the belief that girls are pure and beautiful after elimination of body parts that are considered tainted and unfeminine.
How prevalent is female genital mutilation?
The exact number of females who have undergone FGM universally, still remains obscure, at least 200 million girls and women aged around 15–49 years from almost 31 countries have been exposed to the practice. Young girls in many countries today are at much inferior risk of being subjected to the practice of mutilation than their mothers and grandmothers were in the past times. There has been momentous progress made in eradicating the practice in the past thirty years.
However, progress is not universal or fast enough. In some countries, the practice remains as habitual today as it was three decades ago. A study conducted in 2018 on female genital mutilation in India said that the practice was up to 75 per cent across the Bohra Muslim community. The said study was conducted by three independent researchers. Progression to end FGM needs to be at least ten times quicker if the practice is to be banished by 2030.
Types of female genital mutilation
The World Health Organization (WHO) has classified the practice into four different categories, which are: Type 1 which is also known as Clitoridectomy. That’s the total or partial removal of the sensitive clitoris and its adjoining skin.
Type 2 which is known as Excision. The partial or total removal of the clitoris plus the subtraction of the labia minora, or inner skin folds surrounding the vagina.
Type 3 commonly known as Infibulation. The trimming and relocation of the labia minora and the labia majora – the outer skin folds that encircling the vagina. This often includes stitching to leave only a minor gap. This practice is not only tremendously painful and saddening, it’s also an ongoing infection risk: the stitching over of the vagina and the urethra leaves women with a very minor opening through which to permit menstrual fluid and urine to come out. In fact, sometimes the opening can be so minor that it needs to be cut open to allow sexual intercourse or birth – often causing impediments which harm both mother and baby.
Type 4: This covers all other detrimental procedures like pricking, piercing, incising, scraping and closing the clitoris or genital area.
CONSEQUENCE OF FGM
The repercussions of FGM have both psychological and physiological effects which includes both long term and short term complications. The extent of the short-term complications is totally dependent up on the method in which the procedure is performed. If the process was done using unsterile equipment with no antibiotics and no antiseptics, it increases the risk of complications for the victim. Primary infections comprise urinary tract infections, staphylococcus infections, extreme and uncontrollable pain, and hemorrhaging. Infections such as Chlamydia trachomatis, Clostridium tetani, human immunodeficiency virus (HIV), herpes simplex virus (HSV) 2 are considerably more common among women who experienced Type 3 mutilation if compared with other categories. As the short-term complications apparent, mortality risk increases due to the limited health care accessible to low-income economies. While statistics on the mortality of girls who suffered FGM are not known and hard to procure, it is estimated that 1 in every 500 circumcisions would lead to death. It was disproved in Sudan that this procedure fabricates protective factors agin sexually transmitted infections (STIs) which is not in the case of male circumcision. After the part heals, victim suffers the long-term consequences of the exploitation through both physiological and psychological complications and extensive complications during childbirth.
Amongst other, one of the most common complications is the growth of keloid scar tissue over the part that has been cut. This scar can be a fount of disgrace and anxiety to the women who had FGM. The first sexual intercourse can only take place after gradual and painful enlargement of the opening left after mutilation. For infibulated women (i.e., genitals have been closed tighly) giving birth to a child presents the greatest challenge, as maternal mortality rates are particularly higher because of problems that arise during labor. During delivery, infibulated women are cut in the perineum part so that the baby could be delivered safely.
FGM comes in many forms which leave different long lasting impact on people who has to go through the procedure. One of the victim of such practice recollect the atrocious time when she went through this procedure at the age of 11 what she couldn’t recognize was that it would leave her with irregular periods, bladder complications, and recurring infections. The option left to her was only to give birth via Caesarean section. Now, she is a part of antimutilation campaign.
Posttraumatic stress disorder (PTSD), depression, anxiety, psychoses, and neuroses are common delayed complications that are connected with FGM. In developing countries, these type of conditions regularly go unattended and if left untreated, can lead to mental concerns later in life.
FGM is reprobated by many international treaties and conventions, as well as by national legislation in many countries. There are many initiatives which were adopted to curb the practice and to apprise girls and children about their rights against such exploitation vis-a-vis their bodies.
The convention on the rights of the child (CRC) contains number of articles which addresses the sexual exploitation against children and measures to protect children from such activities. Article 19 of CRC states that government should ensure that children are appropriately cared for and safeguarded from different forms of violence, including sexual abuse.
In the year 1997, World Health Organization (WHO) has delivered a joint declaration against the exercise of FGM together with the United Nations Children’s Fund (UNICEF) and the United Nations Population Fund (UNFPA). Since 1997, substantial endeavor have been made to restrain the practice of FGM, through research work within societies, and modifications in public policy.
Progress at international, national and sub-national levels includes: Great involvement of international groups to stop FGM; International examining bodies and resolutions that stops the practice; Amendments in the legal frameworks and increasing political backing to end FGM (this includes a stringent laws against the practice of FGM in twenty six countries in Africa and the Middle East, in addition to that thirty three other countries with populations migrated from FGM practicing countries); The frequency of FGM has decreased in number of countries and an increasing number of people in communities where it is practiced support ending its practice.
It is indicated through various research work that if practicing communities themselves decide to abandon FGM, the practice can be eliminated very rapidly. In 2007, the Joint Programme are initiated by UNFPA and UNICEF to accelerate the abandonment of Female Genital Mutilation.
In 2008, an affirmation was put forth byWHO with nine other United Nations partners, on the eradication of FGM to succor improved advocacy for its abandonment, called “Eliminating female genital mutilation: an interagency statement”. This statement provided evidence assembled over the preceding decade about the practice of FGM.
In 2010, WHO in collaboration with other key United Nations (UN) agencies and international organizations issued a statement “Global strategy to stop health care providers from performing female genital mutilation”. Many countries are supported by WHO to implement this strategy. The UN General Assembly adopted a resolution on the abolition of female genital mutilation in December 2012.
In the year 2016, the first of its kind guidelines has been laid down by WHO in collaboration with the UNFPA-UNICEF joint programme on FGM. The guidelines were ensued after the systematic evaluation of the best accessible evidence on health complications for women living with FGM. In 2018, a scientific handbook on FGM released to ameliorate knowledge, approaches, and skills of health care workers in averting and handling the complications of FGM was launched by WHO.
The Universal Declaration of Human Rights (UDHR) is an international document drafted in 1948 by various representative from different regions of the world, which talks about the rights and freedoms of human beings irrespective of their race, caste, religion, sex, etc. and contains 30 Articles.
The Article 25 o f UDHR states that “everyone has the right to a standard of living adequate for health and well-being,” and this article has been utilized to contest that the practice of FGM violates the right to health and bodily honor.
FGM mostly done on the minors violates the Convention on Rights of Child. Moreover, it is traditional practice Prejudicial to women’s right which violates the UN convention on the abolition of all forms of wrong against women. It is considered as a crime under the illegal immigration reform and Immigrant responsibility act of 1996 in the United State of America.
The sustainable development are the collections of seventeen goals, which were adopted by the United Nation organization in the year 2015 as universal take to eradicate poverty, protect the environment, increase the standard of living and ensure peace and prosperity by 2030.
In particular, goal 5 elucidate upon eradicating the gender discrimination and building an equal environment for everyone irrespective of their gender, race, caste, etc. which is crucial for a sustainable future. Goal 5.3 recapitulates the elimination of harmful practices against female such as female genital mutilation.
In India, the practice of female genital mutilation executed in Dawoodi Bohra Community prominently, it is a ritual performed on every girl or woman within the community. The dispute first arouse in India due to the two international legal cases against involvement of Bohras community in Australia and the US with the practice.
In 2017, the PIL has been filed by the Delhi based lawyer, who sought the declaration that the said practice violates the basic human rights, and also, amounts to violation of women’s right to life and dignity. On the other hand, the Dawoodi Bohra Community contested that FGM is part of their religion and performance of such practice is protected under the article 25 and 26 of the Indian constitution.
Whereas, the performance of FGM on children would amount to an offence under the Protection of Children from Sexual Offences (POSCO) Act. Since it is practiced on minors, it evidently amounts to serious violation of the child rights as even minors have a right of security of person, right to privacy, bodily probity and the liberty from cruel, inhumane or mortifying treatment. This is practiced without any therapeutic reason and does not have any mention in the Quran.
COMPREHENDING THE FOUNT OF PRACTICE
FGM has been practiced in 30 countries, mainly in Africa with other parts of Middle East and Asia. Further, this practice has been carried to other countries like Europe and America by the migrants who shifted their base to such places. When we look for approaches to address violence we primarily target the particular issue, failing to identify its deep economic and social roots. However, evidence shows that approaches need to be more social oriented and extensive at the time of investing in more peaceful communities. It is further evident that FGM is more dominant among daughters whose fathers are not in favor of the practice or has been undecided but mothers want to carry on with the practice, compared to daughters having fathers as the sole parent supportive of its continuation. Comprehending the extent to which parental beliefs influence choices and which girls are likely to be circumcised is essential for developing suitable interventions designed for promoting the abandonment of the practice.
WAYS TO END FEMALE GENTIAL MUTILATION
Up till now the practice has wreaked a lot of havoc among the girls on whom such egregious act has been practiced. We need to exceedingly work on the measures to curb the practice. With many other the following things are to be done to eradicate the practice rapidly.
• Educating the girl child about their bodily rights, girls has a right to decide what should be done with their body. No female who is well educated about her rights want the practice to continue.
• The local efforts should be orchestrated at places where such practice has been performed to conduct the workshops and activities to beware people about the risks and realities of FGM. The ill-effects of the FGM should be very well communicated to both younger and older generation.
• It should be spread that religion does not demand the circumcision of female or for that matter of any human being. People assume that Islam advocates circumcision of a girl to ensure her purity, which is not true in any sense. The belief which is wrongly followed by people in the name of religion should be stopped and the immediate steps to be taken against this deeply entrenched cultural practice.
• In order to take measures to prevent FGM from causing any further damage the strong educational strategies should be crafted and there is a need to collaborate with various bodies like governmental organizations, private bodies and non- governmental sector to work together efficiently in eradicating this non-human practice.
• The performance of this practice somewhere is because of poverty, which makes society more prone to exploitation, abuse and violence. The survival of many circumcisers are totally based on the initiation of this practice and if we need to eradicate this practice we need to work on generation of employment and end dependency of people on performance of this practice.
• The web of protection should be created which shall include elderly people of the practicing society, attendants of birth giver, and the circumcisers. These people should be primarily targeted to literate about the ill-effects of the practice and why this should be stopped because they are the actual baton holder of this practice. In the end, all of the above ways should be summed up to achieve the 2030 target and effectively work together for eradication of female genital mutilation. While women are reaching the moon, doing something like this to their body without their consent goes totally against the world of equal rights.
There is so much said about the practice back and forth. Female Genital Mutilation not just injures the person physically but also mentally, which leave lifelong horror in the heart of the person on whom it has been practiced. FGM is pervasive practice which do require an evidence based and coordinated approach to ensure that people must be aware how females are hounded by the practice and should underpin the complexities caused by FGM. To combat the practice of mutilation, not only we need comprehensive legislation but also a development in social norms so that the new laws are executed widely and properly. The WHO emphasizes the significance of outreach and education in order to get key stakeholders involve within each community, without which the effectiveness of given laws and educative intervention would be significantly lower. There are several reasons to believe that FGM is a soluble problem.
Surge in FGM amidst pandemic in Middle East, North Africa: Need for a coordinated approach
According to the UNFPA (July 2020 data), 98 percent of the women aged between 15 and 49 years has undergone FGM in Somalia and it is as high as 93 percent in Djibouti, 91 percent in Egypt and 88 percent in Sudan. The joint report released by Equality Now, End FGM European Network and the US End FGM/C Network acknowledged that the ritual is practised outside the Middle East and Asia region too and the official global picture of FGM is incomplete.
Women’s rights were adversely affected amid the COVID-19 global pandemic especially in the Middle East and North Africa (MENA), from intensified domestic violence to joblessness, and made life more miserable. Many malpractices against women have caught the pace in this pandemic such as inhumane practise of Female Genital Mutilation (FGM). It is a harmful procedure undertaken to brutally cut the female genital without her consent, which is a clear violation of human rights.
In April 2020, United Nations projected that around two million cases of FGM could occur in the next decade due to disruptions caused in prevention programmes by the pandemic which would otherwise have been averted in normal living conditions.
No Benefit, All Harm
FGM harms women in many ways and interferes with the natural functioning of the female body. The reasoning behind FGM is quite complex and dominated by traditional beliefs viz. preserving a girl’s virginity and securing her status until she gets married. There are significant physical as well as a psychological consequence of FGM such as bleeding, infertility, infection, death, anxiety disorders, post-traumatic stress disorder etc. The quality of the sex life of the victim is also diminishes.
COVID-19 & Rise in FGM conducts
Now that global attention has shifted to COVID-19 and its impact on the economy, numerous initiatives that advocate the rights of women and provide welfare services to vulnerable women are being delayed or no longer a primary concern. With much more families falling well below the poverty line, and girls being dropped out of school early or forced into child marriages, Female genital mutilation is also likely to persist to appear in the region without notice because, unlike most ‘holidays,’ where the society has something to look forward to, it’s not similar: there is no definite message on what’s going to happen next and it’s confusing people.
According to the UNFPA (July 2020 data), 98 percent of the women aged between 15-49 years has undergone FGM in Somalia and it is as high as 93 percent in Djibouti, 91 percent in Egypt and 88 percent in Sudan. The joint report released by Equality Now, End FGM European Network and the US End FGM/C Network acknowledged that the ritual is practiced outside the Middle East and Asia region too and the official global picture of FGM is incomplete.
Legal Support: Too Little, Too Inadequate
While FGM is constitutionally illegal in Somalia, opposition from religious and conservative clusters has prevented lawmakers from making laws to prosecute wrongdoers. Since 2014 the legislators have been pushing a bill and it is expected to be passed this year, however, the political turmoil that surrounded the first democratic election in more than five decades has raised concerns that the bill can be postponed or stymied.
Egypt has the world’s largest number of FGM conducts. It was banned in the year 2008 (after years of advocacy from women’s right organisation), but many parents are still pushing their daughters into it as a rite of passage; it is estimated that 27 million of women aged 15 to 49 i.e, 87.2 percent have been cut. In countries like the United Arab Emirates and Yemen, there is a ban on medical facilities related to FGM but it is still practiced at home. Sudan too criminalised FGM this year amidst the political transition after 30 years of dictatorship.
Nevertheless, FGM is still widely accepted and law enforcement remains a challenge. Law being an important deterrent is still not enough and there is a need for a national strategy that includes input from judiciary, police, health care providers and civil society.
Forgotten international and regional instruments
In 2003, Protocol to the African Charter on Human and Peoples’ Rights was adopted for the “elimination of harmful practices” against women in Africa, also known as Maputo Protocol. Later in 2011, the African Union Assembly/AU/ Dec. 383(XVII) has given a decision acknowledging FGM as a violation of human rights.
Commission on the Status of Women also approved the draft on “Ending female genital mutilation” (56th session) in 2012. In 2015, FGM is explicitly included in Sustainable Development Goals (SDGs) under Target 5.3 and in 2016 the UNGA adopted a resolution (A/ RES/70/138) which recognises FGM as a form of discrimination and violation of the human rights.
Need of coordinated approach at local, regional, national and international levels
Execution of strategic approach starting from ground level is the key to eradicate the evil of FGM. Targeted training and supportive education need to be promoted to address the issue of FGM with prudence. Healthcare providers play a vital role in the eradication of FGM and they must be acquainted with the ethical and legal frameworks related to the eradication of FGM. This carries the promotion of community awareness and objection to FGM as a violation of one’s rights, including the right to reproductive as well as sexual and physical health for women. Duty of Physician
Taking into consideration the ‘cultural identity’ and the psychological needs of the person involved, doctors should explain the consequences and risks of FGM while discouraging it. They should incorporate health promotion and counselling for women along with informing health care providers and cooperate with local community social and cultural leaders to make them aware.
Development of community programs meant to eradicate the custom, providing appropriate medical knowledge about its negative impacts are needed along with professionals who are skilled to talk to young girls and women and intervene wherever it is required.
The WHA Resolution
The resolution was passed by the World Health Assembly in the year 2008 on ending FGM, stressing upon the requirement for strenuous action in all sectors- education, health, finance, women’s affair and justice.
WHO efforts to eradicate FGM focus on:-
1. Strengthening the health sector responses: Implementing and developing tools, guidelines, policy and training to make sure that health workers can give counselling and medical care to women and girls who have undergone FGM and spread awareness for eradicating the practice.
2. Building evidence: Generating knowledge about consequences, costs and causes of the practice, which includes why the activity is being carried by health care workers and how to eradicate the practice and how to take care of those who have experienced it.
3. Increasing Advocacy: Developing advocacy and publication tools for local, regional and international efforts to end the practice, including tools for advocates and policymakers to predict FGM’s health burden, cost savings and the potential health benefits to the public by preventing FGM.
We must understand the underlying causes of the breaches to truly address the violence and violation of human rights. The state must encourage community intervention programs. Intervention is necessary to stop the abuse
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