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Anti-suit injunctions and the Indian judiciary

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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. 

Conclusion

 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. 

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Legally Speaking

World of intellectual property in and around e-sports

The E-Sports Federation of India (ESFI), a non-profit organisation, promotes and organises gaming events and help train the athletes. It will not be correct to call them gamers as there is a significant difference between gaming and e-sports. The latter requires a lot of concentration, hand-eye coordination, and decision-making skills. The level of preparation by e-sports athletes is same, if not more, as the physical sports athletes.

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INTRODUCTION

Electronic sports or e-sports is an emerging industry where competing games are played via electronic systems online. These are mostly multiplayer games where the players can be anywhere in the world connected through internet. The tremendous growth in the e-sports market has led to major leagues being organised where audiences are sold tickets to watch the game, exactly like physical sports. This has become a million dollar industry and attracts younger generations of people because of the use of virtual and augmented reality. Singapore opened an e-sports academy to train students to become e-sports professionals.

The E-sports Federation of India (ESFI), a non-profit organisation, promotes and organises these gaming events and help train the athletes. It will not be correct to call them gamers as there is a significant difference between gaming and e-sports. The latter requires a lot of concentration, hand eye coordination, and decision making skills. The level of preparation by e-sports athletes is same, if not more, as the physical sports athletes. Regardless of the popularity and the opportunities that they provide, the disputes between the sports industry and the underlying intellectual property rights have always been there. The lack of regulations with respect to technology in India has always been a matter of concern. Intellectual property protection of any sport is a complex issue to decide ‘who owns what’ and ‘what leads to infringement’ as it includes various elements like the performance, broadcast and the ownership of the game itself.

 The company that owns the game has a set of rights on advertising, promoting, and licensing. The need for a regulatory framework has grown significantly and the same has been constantly debated whether it should be included under the scope of physical sports or if it requires a new legislation.

RECOGNITION OF ONLINE GAMING AS E-SPORTS

 The International Olympics Committee declared ‘competitive e-sports’ as a sporting activity in 2017. Later in 2019, the committee changed its stance on the subject by shifting focus to the physical and mental health of the players in a game and how a physical sport promotes an active lifestyle as opposed to online gaming.

 The IOC has also raised concern on the level of violence in esports. South Korea, Japan, and Malaysia are among the many countries that have sports federations now to support, coach, and organise competitive events for e-sports. The United States Government is even granting visas to e-sports professionals.

 E-sports was also seen as a demonstrating sport in the 2018 Asian Games. India is not far behind in the field with ESFI organising various leagues in different cities and for different games. It can be said that India may soon have a governing body for the same.

INTELLECTUAL PROPERTY RIGHTS OF E-SPORTS

Video games have always been popular among millions of people for entertainment purposes. With the advent of technology, online games like FIFA, League of Legends, DOTA, etc. became mainstream. The players who were only considered consumers before are now making profits by playing these online games in the comfort of their home. The athome video games have now become a major event with advertisers and sponsors investing their money in it.

The major source of income for organisers is selling tickets and advertising different brands in the tournaments. To a common man, it looks like a person (here, the e-sport player) paid for a product (here, the e-sport) and is now using it for himself as he owns it. Looking from a legal perspective, there a number of intellectual property rights associated with any product, even an e-sport. Intellectual property protects inventions, literary works, artistic works, designs, logos, etc. Before getting into the types of IP protection, it is important to understand the developer-player relationship with respect to the intellectual property of the game.

A developer is the person who owns the game and the customer is the one who downloads or purchases it. The customer enters into an end user agreement or a limited license which allows him play the game or in other words, use the developer’s IP. Each developer can put different conditions in their agreement ranging from not using their game for commercial purposes to not allowing any modification in the game. The developer has the complete ownership of the game and has the power to allow tournaments and streams. This gives rise to the question as to how the players earn money via streaming on channels like YouTube.

The streaming channels pay a person according to the number of views that they have on their video and the number of advertisements that they put in their stream. The gamers cannot earn anything from playing the game as it is protected under copyright. The developers also have the right to terminate your license at any point. The superior position that the owners enjoy gives them an unfair advantage over the professional players who want to make a living out of e-sports. The different types of IP protection that an e-sport enjoys are:

COPYRIGHT PROTECTION FOR E-SPORTS

  1. Copyright protects the right of creators and is considered as a reward for their creativity. It gives them the exclusive right to produce, publish or perform their work and prohibits others from doing so
  2.  Algorithm and Audiovisual elements.
  3. Although there is no specific legislation dealing with e-sports in India, copyright protects different elements of the game. The source code of the game comes under the scope of computer programs, the audio-visual part of the game can is a cinematographic work, the theme of the game and any type of music in it, all come under copyright protection.

In United States, computer programs are patented and therefore, e-sports algorithms are given patent protection there.

PERFORMANCE RIGHTS

 The protection of performance rights is more of a question mark than a right as of now. Performance rights refer to the rights of a performer prohibiting others from broadcasting their performance without their consent. The Copyright Act provides this protection but gamers are nowhere mentioned. It can be compared to a game of chess where each player has strategic moves which are technically his intellectual property but not under the scope of protection to prohibit others from using that move.

PRODUCING COPIES OF THE GAME

Furthermore, right of producing copies is exclusive to the developer of the game. The question to answer here is whether it will be copyright infringement if tournament organisers produce copies of the game and the answer is yes.Developers are the only ones with broadcasting and reproducing rights and organisers cannot even hold a commercial tournament without the consent of the developer. The athletes are more dependent on these owners for their very limited earning.

TRADEMARK PROTECTION FOR E-SPORTS

A trademark distinguishes the goods and services of one business from another. The objective of a trademark protection is to prevent unfair competition and the reputation of one business to be affected by the other. In the case of e-sports, the name of the game, its logo, and it slogan is under trademark protection. It is an exclusive right which prohibits others from using the same name or design.

PATENT PROTECTION FOR E-SPORTS

 A patent protects inventions which are novel, have an inventive step, and are capable of industrial application. Here, patents will protect the technology that is applied in games, like joysticks or any online architecture where the game runs.

COMPETITION LAW AND IPR

Intellectual Property and Competition law are closely related. With disputes arising in IP protection, it directly impacts the competition in the market, especially where one company has a dominant position in the market. Therefore the price of the games or their licenses need to be regulated. It has to be ensured that one developer does not stop other competitors from entering into the market, or they should not change their prices to gain market share or sell a substitute game. Therefore, the agreements that the consumers or the athletes agree to should not be arbitrary. The developers should be prohibited from exploiting their IP rights for an unfair competition.

CONCLUSION  

Intellectual property protection is a controlling legislation which answers the question of ‘what can be shared and what cannot’. With the competitive-sports industry realising its potential, it has become necessary to protect the rights of consumers. With traditional physical sports like football, hockey, etc. the ownership of the game is not an issue. But the online game or the e-sport is owned by a developer who has the protection of copyright to prohibit others from using his work. The sports industry, as a whole, has become a big corporation with one goal of making profits.

The commercialisation of the industry has increased the need for protecting intellectual property rights associated with it including, trademarks, copyrights, advertising rights, etc. There is clearly a need for a specific legislation to regulate the still developing world of e-sports, it will take a long time in India to actually have one. This should not, in any way, ignore the fact that the current intellectual property laws, while protecting developers, must also provide for the rights of the e-sports players.

The first step would be to give clear grounds of termination in the limited license to the players as well as the organisers if any tournament is cancelled. Another way to help the players is compulsory licensing of copyright which will allow consumers or professional players to make a few modifications in the game. Compulsory licenses promote a fair chance for all parties involved by rewarding the owner, and giving access to the player. It would also promote fair competition among the developers and tournament organisers by providing multiple choices. For compulsory licenses to be a successful alternative solution, there should be reasonable prices for royalty as the in-game purchases are also a big revenue point for the owner of the game.

Intellectual property and competition laws are closely related. With disputes arising in IP protection, it directly impacts the competition in the market, especially where one company has a dominant position in the market. Therefore, the price of the games or their licences need to be regulated. It has to be ensured that one developer does not stop other competitors from entering into the market, or they should not change their prices to gain market share or sell a substitute game. The agreements that the consumers or the athletes agree to should not be arbitrary.

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Legally Speaking

Legal hurdles to vehicle modification in India

Anu Bhuvanachandran

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At least thirty out of hundred vehicle owners wish to see their vehicles stand out in crowd or traffic. Another section wish to take their vehicle even beyond the Mount Everest crossing Niagara falls. For the first category, their vehicle shall draw attention of the crowd to them; whereas the second category is keen on utility of the vehicle that they purchase. Even though advertisement shows vehicles easily mounting to rough terrain, it will not always serve the purpose. Vehicles are not always bought to drive in Highways and plains. There is the passion of a driver that always hidden in his/her vehicle.

WHAT LAW SAYS

The Motor Vehicle Act regulates alteration of vehicles vide s.52. The section says that all owners of the vehicles are absolutely restricted to alter their vehicles in respect that they deviate drastically from the features imbibed by the manufacturer. Whereas certain alterations can be made seeking permission from the registering authority. The section provides powers to central and state governments to make rules and regulations on the same.

In the Motor Vehicles (Amendment) Act 2019, s.2(i)(1) is substituted with adapted vehicle which means a motor vehicle either specially designed or constructed, or to which alterations have been made subsection (2) of the section 52 for the use of a person suffering from any physical defect or disability and used solely by or for such person. Under section 32, the owner has to get approval for altering the vehicle. In section 52 second proviso is substituted with “the central government may prescribe specification, conditions for approval, retrofitment and other related matters for alteration of motor vehicles and in such cases, the warranty granted by the manufacturer shall not be considered as void for the purposes of such alteration or retrofitment.” If the owner of the vehicle after registration alter or to cause alteration it shall be abide by the rules of the central government. In addition there are array of rules crafted by the central government and the state governments.

PENALTY

Under section 191, sale or alteration of vehicle contravening the Act is recognized as an offence. The exception available is that if the person proves he had reasonable cause to believe on the act done so. Section 194 penalizes driving vehicle exceeding the permissible weight.

ANALYSING THE SUPREME COURT VERDICT

The Regional Transport Officer & Ors. V. K. Jayachandran & Ors is the case in which it is ruled that alteration of motor vehicle is illegal. The judgment was delivered by Hon’ble Justice Arun Misra and Justice Vineet Saran. The case is a Special Leave Petition against the judgment by the Hon’ble High Court of Kerala allowing the structural modification of vehicles as per Kerala Motor Vehicle Rules. Let us analyze whether the verdict goes totally against the vehicle modification or has put some limits on the same.

Para 27 of the judgment runs as follows:

“The very object of the amendment of section 52(1) by Act 27/2000 is to prohibit alteration of a vehicle as provided including the change of tyres of higher capacity.”

“The proviso to sub-section (1) permits modification of the engine, or any part thereof, of a vehicle for facilitating its operation by a different type of fuel or source of energy including battery etc., such modification is permissible to be carried out subject to such conditions as may be prescribed.”

That is any alteration is possible except what is said under section 52 of the Act.

WHAT IS LEGAL?

a. Engine Modification- You need a prior approval from RTO.

b. Tyre Modification- You can change from base variant tyre to top model variant.

c. Fittings: door protectors, rain guards etc. can be installed.

d. Colour Modification: You need prior approval from RTO

e. Head and tail lights: LEDs and auxiliary lamps allowed except said illegal by the state/ central government.

f. Engine fuel change: You are free to use CNG instead of petrol or diesel.

g. Suspension variation/ modification: allowed to a few inches for high performance.

AND WHAT NOT…

a. Widening of tyres is illegal on the reason that it protrudes the body.

b. Loudness of horn: limited to 100 decibels

c. Width and length of vehicle: You are not allowed by the government to turn your car to an SUV by modification.

d. Width of alloys: it is illegal for the reason that lip of the alloy protrudes the tyre edge.

e. Tinting windows: Supreme Court said a big NO to it.

f. Modification of vehicle to a one with high capacity: NO huge horse power allowed other than what specified by the manufacturers.

VEHICLE ADS & FACTS

We watch n number of vehicle advertisements in a day. Google projects extra ads based on our Google search history. In the ad, the expectation on utility of the car may take us to another level. But the real hazard starts when we actually hold the steering assuming the expected utility projected by the advertisements. For example, an advertisement showing the vehicle easily go through the rough terrain. In reality roughness of the terrain cannot be expected, and sometime the same vehicle may stuck by the rock, or breakdown in sludge or its tyre punctures at the middle of a mountain or a hill. I am not talking about the vehicle which is modified and used in race tracks.

WHAT I HAVE TO SAY HERE….

I understand that I should not trouble public with my vehicle. The present situation is even though there is no chance to trouble, I am bar from modifying my vehicle due to something apart from my safety and duty to the public.

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Legally Speaking

A soft state and judicial populism: A match made in hell

The government’s lack of a proper response mechanism to what I would call, the ‘Shaheen Baghaisation’ of matters of law and policy, has effectively created a new normal where at the drop of a hat the national Capital is laid to siege and life, ‘normal’ or not, comes to a grinding halt. Without a doubt people who have an issue with the policy of the government have the right to express their grievances, but where does one draw the line between paying heed to aggrieved parties and succumbing to populism which involves issuance of barely veiled threats of violence and disruption?

J. Sai Deepak

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Over the past several weeks, a lot has been written about the farm laws, the concerns of farmers of a few States and the Central Government’s position. Predictably, the matter reached the Supreme Court, and instead of examining the challenge to the farm laws on legal/Constitutional anvils, the Apex Court chose to wade into extra-legal issues which were clearly outside the scope of its purview, such as negotiations between the Government and the protesting farmers. This reminded me of the following observation of Justice Felix Frankfurter on the standard for a judicial decision from Alan Barth’s book Prophets with Honour: Great Dissents and Great Dissenters in the Supreme Court:

“A Court which yields to the popular will thereby licenses itself to practice despotism, for there can be no assurance that it will not, on another occasion, indulge its own will. Courts van fulfil their democratic responsibility in a democratic society only to the extent they succeed in shaping their judgements by rational standards, and rational standards are both personal and incommunicable.”

While I do believe that the Supreme Court’s intervention strategically served to calm frayed tempers especially in view of the impending celebrations for the Republic Day, the intervention has, in my humble view, come at the cost of institutional restraint which is implicit in the doctrine of separation of powers, and may have sowed the seed for more such protests and placatory interventions in the near future. The Government was given a Hobson’s choice between voluntarily putting on hold the implementation of the farm laws and inviting a stay on their implementation by the Supremes. That this goes beyond judicial activism and enters the scary realm of judicial populism, which has been in the making for some time now, appears to be the general sombre consensus.

To make matters worse, the Government’s lack of a proper response mechanism to what I would call, the “Shaheen Baghaization” of matters of law and policy, has effectively created a new normal where at the drop of a hat the National Capital is laid to siege and life, “normal” or not, comes to a grinding halt. Without a doubt people who have a grievance with the policy of the government have the right to express their grievances, but where does one draw the line between paying heed to aggrieved parties and succumbing to populism which involves issuance of barely veiled threats of violence and disruption?

The only unimaginative response of the Government to this new normal has been to hold endless parleys while others suffer. This coupled with the Supreme Court’s extra-constitutional intervention, while perhaps necessary, portends a bleak future for general respect for law and order and reinforces the fact that Bharat is a soft meandering State, not just from without but also from within. The so-called vibrant and robust nature of Bharat’s democracy is usually tested on the anvils of a smooth transition of power once in five years, but that doesn’t complete the picture even remotely. It must be tested on the anvils of its ability to shun populism in matters of law and order, which includes the judiciary’s steadfast commitment to not offer an olive branch to belligerence that masquerades as free expression. If the State cannot even guarantee the most basic expectation that comes with being a State i.e. it is the only entity to wield force within its territory, it is time for such a State to introspect as to what it truly stands for and what can common people expect from such a State, if at all.

I don’t mean to sound like a pessimist because that goes against the grain of my nature but I do believe that until uncomfortable truths are squared up to, neither an individual nor a society has a chance at betterment. I do believe that Bharat has been hurtling from one crisis to another without drawing the right lessons because its approach to the future smacks of utter ad hocism, captured by that uniquely Delhi word “jugaad”, without any thought spared for long term fundamentals. For a country which has grand aspirations or ambitions of being a Vishwaguru, it seems to be doing a terrible job of being a Guru to itself before it can project itself as the beacon of hope and enlightenment to the rest of the world. After a long time, this country has witnessed a non-fractious electoral mandate for two consecutive terms. But has this opportunity been made the most of to get the fundamentals right before we let our imaginations soar? For once, I am agnostic because I genuinely don’t know and I wish I could feel more positive.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

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Legally Speaking

Behind closed doors and immuned by law

The Supreme Court, in its judgement in Anwar Ali Sarkar and Budhan Choudhary, noted that just about every categorisation under Article 14 of the Constitution shall be limited to a test of reasonableness which may be carried only if the definition of any categorisation has a fair connection with the purpose which the act aims to accomplish. Exception thwarts the intent of Section 375 of protecting women and prosecuting those involved in the barbaric acts of rape.

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Domestic abuse is a chronic crisis throughout India, and this has only intensified during recent decades. In India, nearly 70 % of people were victims of domestic abuse. As per the report, in India, a woman is raped every 16 minutes, and every four minutes, she experiences cruelty at the hands of her in-laws. The document was troubling, but not entirely unexpected. A 2015-16 National Family Health Survey data analysis shows that an approximate 99.1 percent of incidents of sexual harassment go unreported and that the average Indian woman is 17 times more likely than others to experience sexual abuse by their spouse. Different legislation aimed at shielding women from domestic sexual assault and sexual abuse has largely remained unsuccessful, despite serious changes to the penal code.Anyway, what happens if legislation empowers the culprits with immunity and jeopardizes the victims?

Yes, the contradiction described above is not a mere myth but resides in the Indian Penal Code as a truth. One of the Indian legal administration’s most disturbing and oppressive clauses is that of marital rape. Which is perfectly legal in Indian criminal statutes. The definition of rape in Section 375 covers all types of sexual assault concerning non-consensual intercourse with a woman. It points out in some detail the various circumstances in which permission is either non-existent or vitiated. An exception occurs at the end of the clause of the section. It implies, enough, “Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.” According to existing legislation, a woman is presumed to give her unconditional consent to have sexual intercourse with her husband after getting into a marriage. Although forced sexual intercourse in marriage is considered a criminal act in practically every country in the world. India is among the handful of counties that have not yet criminalized marital rape.

Actively there have been writ petitions in the Hon’ble Supreme court and High courts in India concerning the constitutionality of that very exemption. Section 375 (Exception) effectively provides a clear description not only between consent granted by a married and unmarried woman, as well as between married women under the age of 15 and over the age of 15 years. Such a designation isn’t really subject to the ‘comprehensible differential’ test and is, thus, prima facie contrary to the right to equality listed in article 14. In 2017, Independent Thought, an NGO, filed a PIL questioning this incomprehensible distinction and arguing that this defense should also be afforded to married women over 15 years of age. To a considerable point, the Supreme Court complied with these averages and increased the age cap under Section 375 from 15 years to 18 years. This decision, in particular, led to a spike in the number of other writs challenging the constitutionality of the exception itself.

VIOLATION OF FUNDAMENTAL RIGHTS ENSURED BY THE CONSTITUTION

The Constitution of India Under Article 14 safeguards that, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” While our Constitution provides equality for all, Indian criminal law is discriminative towards female victims who have been raped and assaulted by their spouses. When in the 1860s IPC was drafted, a married woman was not known to be a separate legal body. Rather, she was deemed to be her spouses’ possession inspired by the theory of Coverture. Coverture is a legal doctrine which was established in the common law of England, where after marriage the rights of women cease to exist and duties were assumed by those of her spouse, in compliance with the legal standing of women were merged with that of husband. During the drafting of the IPC, India was under British rule and its criminal laws were strongly influenced by English rules of Victorian standards. Under Section 375 there is an exception, which effectively exempts the conduct of husbands against their spouses from being called “rape” offence, which was conceptualized on the basis of Victorian patriarchal traditions that did not consider men and women as equivalent.

As of recent, we have moved towards equality, somewhat at least, to protect the rights of women from sexual harassment and rape, but we have failed miserably in proving equal rights to married women entrusted under article 14. The exception under section 375 discriminates against married women by excluding them equal protection from abuse and sexual assault. It categorizes women on the grounds of their marital status which immunizes the actions of men against their spouses. By doing so, it makes it possible for married women to be abused for no reason except their marital status.The categorization created in section 375, between married and unmarried women is indeed contrary to Article 14 because as far as the difference is concerned it has no reasonable connection with the fundamental intent of the article, which negates all kinds of discrimination.

Therefore, any statute that defines a designation that is inappropriate or incidental to the objectives of the law is found to be beyond the legislative structure. As for what is fair, it will still focus on what the judges thought and a new interpretation of law and rationality will arise with any new generation of judges, thereby rendering the Constitution a living text. In order to minimize gender-biased discriminatory care, it is important to stop prejudices based on gender. It is also important that caution be taken when applying the equality test so that the stereotyping enforced by the patriarchal system does not predetermine what is fair classification section 375 of the IPC criminalizes the offense of rape and protects a woman against forceful sexual intercourse against her will and without her consent. The provision hereby grants women immunity from criminal attacks on bodily autonomy and shows the role of the State in punishing those who abuse this bodily autonomy. It is also correct to claim that it aims to preserve the right of choice of women as independent persons.

The Supreme Court in its judgment in Anwar Ali Sarkar and Budhan Choudhary noted that just about every categorization under Article 14 of the Indian Constitution shall be limited to a test of reasonableness which may be carried only if the definition of any categorization has a fair connection with the purpose which the act aims to accomplish. Exception thwarts the intent of Section 375 of protecting women and prosecuting those involved in the barbaric acts of rape.

Married women require protection under the law in their private worlds, just as men and single women do. Although the majority of section 375 of the IPC remains concerned with maintaining a victim’s right. On the other hand, such a right is taken back after marriage and the focus of the statute moves back to protecting the offender of the crime of rape. It completely removes the freedom of conscience of a woman and indeed essentially deprives her of personal rights and her identity. The designation is therefore redundant, incoherent, and in violation of the mandate laid down in Article 14. For the purposes of the law, the removal of the protection of Section 375 of the IPC from victims of the crime of rape purely on the grounds of their marital status is meaningless.

The repercussions of rape are the same for each victim. In fact, section 375 allows husbands to engage in sexual intercourse with their wives forcibly, as they realize that their actions are not deterred or penalized by statute. Since no logical connection has been drawn for the distinction formed between married and unmarried thus the test of reasonableness doesn’t exist which is contrary to Article 14. Besides that, it is increasingly difficult for those married women who are economically and morally dependent on their husbands to avoid oppressive circumstances.

Article 15(1) of the Indian Constitution states that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. The discrimination in section 375 is the antithesis to article 15(1). The onus is on the state to respect the constitution and put an end to discrimination done towards thousands of married women every day.

Marital rape which is not criminalized under any law in India is a blatant abuse of article 21 as it gives no rights to women to protect herself from being raped by her own husband. Article 21 of the Indian Constitution is one the most important part of the constitution which upholds that any citizen or alien being in India is entitled to the Right to life and personal liberty. The Apex court has widened the aspects of article 21 by interpreting it beyond and between the lines of the article. In recent times the court has interpreted that right to health, right to dignity even during performing death rites, safe environment, and clean air, all fall under the ambit of article 21.

In Justice K.S. Puttuswamy (Retd.) v. Union of India, it was held that privacy is a fundamental right and also covers decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations. The court in the aforementioned case did not draw a difference between married or unmarried women and anyone else, the court mentioned it for each and every citizen of India. Thus, any kind of forced sexual intercourse is an infringement of a fundamental right, and the right to privacy and is not bound by the theory of Coverture. The supreme court ruled that privacy starts with the human body and that the principle of cognitive autonomy is at the core of the right to privacy – such that, it is the right of each person to determine when and for what reason his body will be used. And as people cannot sell themselves to slavery, nor should they be assumed to have waived their right to decision-making at the altar of marriage.

Earlier, privacy was conveyed by expressions that the state cannot access the household or access relations. Thus, the men were immune to oppression, unjust power, and violence within the house of an individual.

Should the state really penetrate the sphere of the home? A reaction to this is a “yes”. In the cases of cruelty, divorce, and dowry, it already does, then why put the most atrocious and egregious offense beyond the control of the State and legislation. Why does the marital rape zone ought to stay outside its pale? At the time of the union, the state that does not involve itself but serves as an arbitrator after divorce must secure the right of a woman to her body. With privacy judgment, the scope of privacy has also ventured inside the family and houses of individuals, and communities. However, criminalizing marital rape is just not an issue relating to the privacy of one’s bedroom, it involves ensuring dignity, freedom, and free consent as much as in a bedroom as in a public space.

CONCLUSION

The continued immunity from the scope of statutory law from marital rape sustains the presumption that the wife is the sole property of the spouse. As stated by Katherine O’ Donnovan: “Its immunity from the purview of the criminal law is explained on the grounds that the female victim is a wife. This justification can be understood in the context of the dominant familial ideology and female sexuality which treats a wife as property and as having no sexual agency or decision making in sexual activity within the marital contract”.

It is proposed that in India, marital rape should be criminalized, because that can be done by applying an approach to violence against women based on individual rights. Indian women’s groups have managed to raise public consciousness and introducing domestic violence laws, but marital rape has not been fully criminalized by removing the difference between marital rape and rape.Yet marital rape will not be criminalized or prosecuted until lawmakers and the Society respects the personal interests of women within the marital framework.

Principles on the sexuality of women, and therefore ideas on non-marital and marital sexual violence in Indian culture, stem from the notion of gender, embarrassment and family’s reputation, rather than the rights of women and individual autonomy. If the lawmakers see rape and sexual assault against a woman and her individual and bodily dignity and humanity, then marital rape and penalty would be a legal offense.

In aims to introduce a changes to the current legislation, we can use a semantic method to individual rights in working to criminalize marital rape in India, even though marital rape is not a government’s problem until society and lawmakers realize that women have individual rights in married life.

A very recent TV show “Criminal Justice: Behind the closed doors” written by Apurva Asrani shows a lawyer who was murdered by his wife late in the night with a knife. The lawyer was one of the “best” lawyers and was a very respected member of society. As the murder mystery folds, it is discovered that the lawyer was raping his wife for last many years and was indulging in non-consensual sex. Due to the taboo and “SHAME”, the victim never opened up.

The plot of the show has an uncanny resemblance to reality. Most of the rapes are not done by strangers, it is someone familiar and known to the victim, owing to such familiarity, the victim is scared to speak up. In the case of marital rape, the victim is none other than the wife and it is seen almost all times that they don’t speak up due to fear of disbanding of the family and the SHAME that it will bring upon them in society.

The exception in article 375 for marital rape is arbitrary and gives undue advantage to men. Getting away with this exception is the only way to let such victims speak up and make sure the accused are well dealt with by the law. Striking this will not be an infringement of privacy rather it will reinstate the foundation of article 21 by giving dignity and much-needed equality to the women who are subject to marital rape.

For the women who have been abused and assaulted, marriage for them is-:“Abandon all ye hope who enter here”

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INNOVATION AND DEVELOPMENT OF AI IN INDIA’S HEALTHCARE, LEGAL FRAMEWORK AND CHALLENGES

Though India is using artificial intelligence in its major healthcare segments, i.e., hospitals, pharmaceuticals, diagnostics, medical equipment and supplies, medical insurance, telemedicine, etc, it still has a vast untapped potential for AI solutions to improve operational efficiencies and quality of healthcare. According to the Indian AI Healthcare Market 2019-2025 report, Indian AI in the healthcare industry is estimated to grow significantly at a CAGR of 50.9% during the forecast period of 2019-25.

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INTRODUCTION

Digital Technology has taken a huge leap in revolutionizing globally. Governments of developing countries across the globe is emphasizing on improved access to primary health facilities and services by setting country specific healthcare targets. However, according to the World Health Statistics 2019, there is a considerable gap in delivering and accessing the healthcare services in various developing countries. This has led to the deterioration in the health of general public resulting into poor health further aggravating poverty.

The government spending on healthcare in India is one of the lowest in the world. The patient doctor ratio in India is as low as 1,700:1. Also, ~70% of the healthcare infrastructure is in cities, which cater to ~30% of the country’s population.. Due to the unequal distribution in India’s healthcare sector, lack of trained healthcare clinicians, low governmental spending, inadequate infrastructure, weak doctorpatient ratio, late diagnosis, India provides a room for innovative, sustainable and scalable healthcare digital transformation to improve lives. The adoption of artificial intelligence (AI) is reshaping the Indian healthcare market significantly.

 AI-enabled healthcare services like automated analysis of medical tests, predictive healthcare diagnosis, automation of healthcare diagnosis with the help of monitoring equipment, and wearable sensor-based medical devices, are expected to revolutionize medical treatment processes in the country. It is predicted that the applications of artificial intelligence in the healthcare space will be worth INR ~431.97 Bn by 2021, expanding at a rate of ~40%.

Based on this growth of AI application in healthcare, the doctor-patient ratio in India is expected to reach ~6.9:1,000 by 2023, from its 2017 ratio of ~4.8:1000. With the use of artificial intelligence applications, doctors can offer their services to more patients and reduce the existing gap in demand and supply of medical services in the country. AI-enabled healthcare services can be delivered at lower costs with increased efficiency and an emphasis on diagnostics.

Moreover, artificial intelligence enables hospitals to implement patient centric plans and eliminate unnecessary hospital procedures, making delivery of healthcare services faster in India. Though India is using Artificial Intelligence in its major healthcare segments i.e., Hospitals; Pharmaceuticals; Diagnostics; Medical equipment and supplies; Medical insurance; Tele-medicine, it still has a vast untapped potential for AI solutions to improve operational efficiencies and quality of healthcare. According to the Indian AI Healthcare Market 2019- 2025 report, Indian AI in the healthcare industry is estimated to grow significantly at a CAGR of 50.9% during the forecast period of 2019-2025.

 DEVELOPMENT AND INNOVATION

Government initiatives: The Information Technology Act, 2000, and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, mandate that service providers and patients exchange information constantly by using the latest technologies. National eHealth Authority (NeHA) – An authority which is responsible for the expansion of the integrated health information system within India. The government is putting in efforts to digitize the healthcare system in India. Planning for an Integrated Health Information Program (IHIP) to create Electronic Health Record for all citizens in order to enable the interoperability of existing EHRs is currently in development (National Health Portal of India, 2017).

In a recent discussion by NITI Aayog outlined the ambitions of creating a ‘National Health Stack (NHS)’ to organize both personal health records and service provider records available on  cloud-based services to private healthcare stakeholders which is is expected to consist of mainly four elements – electronic health registries of health service providers and beneficiaries, coverage and claims platform, a federated personal health records framework and a national health analytics platform. The United States-India Science and Technology Endowment Fund, is aimed at helping teams of innovators and entrepreneurs from both countries, whose products will improve the quality of healthcare, by harnessing the power of artificial intelligence. India is approaching towards ‘Imaging AI in Practice’ wherein a patient is studied, along with the entire imaging workflow and the images are finally interpreted by the physician.

AIRad Companion, a cloudbased augmented workflow solution helps to reduce the burden of repetitive task and increases the diagnostic precision while interpreting medical images. The automatic post-processing of imaging datasets through AI-powered algorithms and high case volumes helps to ease the daily workflow in clinical scenario. The deployment of AI- Rad Companion extension via team play digital health platform eases regular updates and facilitates the integration of new ideas into existing IT market. In the field of biomedical research, viral culturing in laboratories is being practiced wherein quick insights are fleshed out by the scientists through accelerating simulation time between the interaction and reaction of compounds and virals.

With the help of AI based machine simulation becomes useful in testing environment where viral and strains take on polymorphic identities. Through deep learning, AI technology dives into knowledge repositories to learn from use-cases and help patients. Additionally, the pioneering work of artificial intelligence is also under its way to perform remote robotic surgeries where doctors from any location can treat the patients at any location in the world with the help of other collaborative technologies like AR and 5G.

LEGAL FRAMEWORK: CHALLENGES AND IMPLICATIONS

Challenges

The AI systems just being in their development have much of the challenges to be faced in that state relates to :-

 DATA ACCESS

These AI systems are always dependent on the availability of large data access of their consumers, working the healthcare system on AI requires a lot of access of the patient’s previous medical history, records etc., which would be quite a challenge in India, especially in rural and semi-rural areas, where these records and data aren’t managed well.

 BLIND SPOTS IN DATA COLLECTION

Currently, there are a lot of caste, gender, and class based irregularities in the medical systems in many areas of the nation, many lower cast women are denied of proper health care because of certain practice of elitism in those areas, this leads to fewer representation of a certain type of data in the medicine formulation, which in turn may be effective for only a certain amount of people in the population, and not all of them.

HIGHER COSTS

 The whole structure employed in the AI systems is very expensive; the costs of training, testing, and deploying AI systems are very high. Collection of data is also expensive in itself, and most of the Healthcare companies would be relying over cloud services of foreign companies, because they don’t have that much of Technological support.

 PRIVACY AND MISUSE OF PRIVATE DATA

These AI systems would be requiring a lot of Private Data of their patients, which in turn could be a big risk if not secured properly, because hackers may sell this data to foreign companies of intelligence services, causing a threat to our country and its people. There can be a lot of malpractices be taking place by misusing the customer data, many drug companies would directly know the ailments of patients, and may hike up their prices, many bankers may use this data to evaluate the eligibility of loans as a person with poor health may be seen as unable to work, and might be blacklisted by certain banks to get loans.

 ACCOUNTABILITY

A computer most certainly cannot be held accountable in case of occurring of any error or misdiagnosis. There has to be a human in the loop, They AI systems should not be intended to replace doctors. Current Legal Framework and Implications Currently, the medical professional is held responsible for any deficiency or negligence in his/her services. Due to absence of any specific law enacted to deal with AI and the advanced technology in India it is difficult to distinguish cases where the error occurs in diagnosis malfunction of technology or use of inaccurate data. The healthcare organizations will have to face the growing cybersecurity challenges besides the policymakers will have the responsibility of enacting laws ensuring careful governance and security arrangements for stored data. Currently, the cases relating to AI in healthcare might be governed under other laws or acts like the COPRA (Consumer Protection Act), as the patient is a consumer using the services provided by the AI systems, and in case of any default may take any course of action according to COPRA, for instance, if a patient has been prescribed a certain drug, which contributes towards worsening his condition, he will have a remedy under the COPRA.

Similarly, if any patient’s personal information is being shared or either being leaked by mistake or any error in the AI system, and which the concerned company isn’t authorized to do so, may face certain legal implications under the Data Protection and Privacy laws of India. Admittedly, there is a void in the legal and regulatory framework affecting Artificial Intelligence. On one hand the AI applications along with supporting technologies are expected to bring transformative changes on the other hand it has disruptive potential in the healthcare sector across hospitals and hospital management, mental health and well-being, pharmaceuticals, insurance and medicine. The adoption of AI in healthcare sectors would require policy and institutional framework to guide and design the use of Artificial Intelligence system. With the availability of health related data, another challenge would be to address the questions of ethical, technical and legal nature.

The questions as to quality, safety, governance, privacy, consent and ownership poses a greater challenge that is still under-addressed. Another concern regarding the use and designing of AI is that it would be examining why and how AI has reached to a specific decision. Right to Privacy being fundamental right demands for citizen’s health data to be protected and therefore it becomes the key responsibility of those handling the sensitive data for AI purposes.

The use of AI based solutions entails constant exchange of information between the patients and AI service provider. Such exchange creates massive datasets which are further processed for training, validation and creating algorithms.

 Therefore, the lack of adequate data privacy laws in India results in commercial exploitation of the datasets leading to challenges termed as ‘Black Box Phenomena’ that is beyond development of AI solutions Owing to the violation of privacy the Ministry of Health and Family Welfare released a draft of the Healthcare Security Act. The Act proposes to provide civil and criminal remedies for any breach of data and principles of data collections and its use. The Act also provides for institution of the National Digital Health Authority as a regulatory authority which will focus exclusively on enforcing healthcare data protection norms.

 Further, under the IPR regime, the Patents Act expressly exempts the patentability of algorithms from being ‘inventions’ eligible for patent protection. However, since the algorithms are created by collating and analyzing human created work, the creator of the work can be granted copyright under the Indian laws with the exclusive rights to reproduce their own work. While addressing the question of accountability, AI system has been envisaged as only a decision-support system and is thus not intended to replace the doctors. It will help in providing first layer screening interpreted by the human and he will be responsible to point out errors if any.

 However, it is essential to note that in which capacity of profession this human might be, because in rural setting the frontline health workers may not have the requisite knowledge, training and confidence to be able to interpret the AI based results. These concerns are accentuated in Indian context due to weak regulation in the Indian Healthcare sector. There are numerous reports showing negligence and malpractices even in the well-established hospitals the major reason being the lack of strict and uniform regulation of healthcare in the country. There is a lack of standardized guidelines in India for designing AI applications to be used in healthcare systems which further deters the use of artificial intelligence in the Indian Healthcare market.

The existing or recently developed AI companies are majorly startups due to which the medical practitioners do not trust the products easily as they are not nationally or internationally certified. Consequentially, the sales of start-ups get hampered resulting in the limited implementation of AI in the Indian Healthcare sector.

CONCLUSION

 Use of AI systems is in its developing years in the country, and thus it needs an adequate amount of legal as well as financial support from the Indian government for its better reach in the country and also to gain faith of the population in the new structure. The government will need to put extensive legal measures in order to minimize the mentioned challenges for a smooth running AI system in the Healthcare sector of the nation. It is suggested and recommended that the private players embrace self-regulation, periodically conduct systematic and structured self-audit, and document it for record-keeping and regulatory purposes. This would help not only in the structured and orderly growth of the industry, but also allow the technology and businesses to grow in a laissez affaire manner.

 A key obstruction that hinders the advancement of digital health is the policy environment. Failures and misalignments coming from the absence of proper policy formulation and coordination among various stakeholders and the lack of sustainable financing basically hinder medical care associations’ capacity to earn profit from digital healthcare initiatives. In many developing countries, regulations such as those related to patient data privacy are less stringent than those of developed countries, which can act as a facilitator to the diffusion of digital health technologies. The increasing demand and complexity in the diagnostic services is outpacing the supply of healthcare experts as a result of which new set of tools is required that can handle large volumes of medical data quickly and accurately, further allowing the patient to make more objective treatment decisions based on quantitative data and tailored to the needs of the individual patient. In order to develop the new toolset, the power of AI is to be drawn upon.

 Co authored by Anchal Jain.

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19th January: The Holocaust Day

Kashmiri Pandits were forced to flee the Kashmir Valley as a result of a concerted plan of ethnic cleansing with the strategy of killing one and scaring a thousand by JKLF terrorists and Islamist insurgents during late 1989 and 1990 onwards. Living in the Valley for more than 5,000 years, the entire population of 5-6 lakh Hindus was exiled by inflicting death, destruction, loot, grabbing of leftover immovable properties, agricultural land and orchards, etc.

ASHOK BHAN

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19th January 1990 is the darkest day in the history of Kashmir. The aborigines population and the minority Kashmiri Pandit community was driven out and exited at gun-point from the Kashmir Valley. They became refugees in their own Country and sought refuge in Jammu, Delhi and various other places. They left their homes and hearths behind which now stand destroyed, sold for peanuts in distress and mostly have been forcibly occupied by the armed insurgents.

I am a Kashmiri and the proud member of the Kashmiri Pandit community which is a ethnic minority of the erstwhile state of Jammu and Kashmir and now a Union Territory.Kashmir today is without Kashmiri Pandits. A religious minorily, with its more than 5,000 years of evidenced history and roots linked with Kashmir,under a concerted plan of ethnic cleansing, forcibly hounded out enmasse from their natural habitat. Kashmiri Pandits are the aborigines natives with more than five thousands years of roots engraved in the soil of the Valley.Kashmir is a part of India.The idea of India in Kashmir is in Perpetual peril.Kashmir’s plural ethos, composite culture and heritage lay shattered and completely destroyed by the radicals and terrorists, materially,morally and politically helped by Pakistan.

To avenge their defeats at the hands of India, Pakistan embarked on sponsoring terrorism in Kashmir. It is a matter of common knowledge that, for the last thirty years, the people of Kashmir, particularly Kashmiri Pandits and Hindus of the Doda district in Jammu, in particular, are killed and remain under constant threat from the Pakistani-sponsored militants. They lured and tempted the uneducated youth to take arms against their own brethren with whom they had lived for centuries in peace and tranquillity.

The armed insurgency is orchestrated,supervised, controlled and directed from across the border, sophisticated weapons are smuggled into Kashmir by the Pakistan army and their ISI agency and lethal weapons are pumped into the Valley and elsewhere in the Jammu region.These arms are not only meant for fighting the Indian security forces but are used for killing the innocent local people. It is one of the the most barbaric, inhuman and dangerous venture which launched against innocent Kashmiris consisting of Muslims, Hindus, Sikhs and other communities by Pakistan with the active participation of the locally recruited militants. The Kashmiri

Pandit community and the mainstream Muslims were the prime targets of the armed terrorists. Terror reined hundreds of Kashmiris were brutally killed,the State Government collapsed,the Indian State was in a state of mess because of opportunistic collation government at Centre And;finally in January 1990 the minority Kashmiri Pandit community was driven out at gun-point from the Valley. They became refugees in their own homeland and sought refuge in Jammu, Delhi and various other places. They left their homes and hearths behind which now stand destroyed or have been forcibly occupied by the armed insurgents.

The Pakistan and the Kashmiri terrorists have a direct responsibility for the disaster which the armed insurgents have heaped on the Kashmiri people.shockingly it all was inflicted in the name of religion. The wholesale massacre of the Kashmiri population innocent and unarmed was termed by a narrative as ‘Holy War’.

Kashmir today is without Kashmiri Pandits. A religious minorily, with its more than 5,000 years of evidenced history and roots linked with Kashmir,under a concerted plan of ethnic cleansing, forcibly hounded out enmasse from their natural habitat.

This community was reduced to minuscule minority by cultural aggressions in the past and, therefore, in 1947, according to census figures, the population of this community was 15%, in 1981 5%, in 1991 .01% and In today time of enlightenment a big 99.9% of this community population has been forced to flee Kashmir and live as refugees in their own Country.These five hundred thousand Kashmiri Pandits live in abysmal/appalling conditions, ‘as refugees’, in camps in Jammu and Delhi. This mass exodus of 1990 was followed by sustained terror, rapes, murder, loot and kidnappings. About 1,500 Kashmiri Pandits, including women and children, were brutally killed, about 250 religious shrines were burnt down and fifty thousands agricultural families deprived of their lands, twenty thousand business establishments looted and devastated, more than thirty thousands of houses reduced to ashes and 90% of the houses looted and about twenty thousands vacant houses and other properties left behind have been forcibly occupied. As a result of this carefully drawn-our strategy and plan of ethno-religious cleansing of Kashmin Pandits by the armed insurgents, this community is today scattered, devastated and disintegrated.

Pakistanis engaged in trans-border terrorism and indulged in international crimes characterized as gross human rights violations and akin to Genocide.The mercenaries, after wearing Army uniforms, indulged in killings masquerading as army personnel to unleash hatred against the security forces who are engaged in safeguarding the lives and property of the people.

The aborigine Kashmiri Pandits were forced to flee the Kashmir valley as a result of a concerted plan of ethnic cleansing with the strategy of killing one and scaring a thousand by JKLF terrorists and Islamist insurgents during late 1989 and 1990 onwards. Living in the Valley for more than 5,000 years, the entire population of 5-6 lakh Hindus was exiled by inflicting death, destruction, loot, grabbing of leftover immovable properties, agricultural land and orchards etc, by the settlers/JKLF and other native terrorists.

The brutal murders of Kashmiri Hindus started over 30 years ago on 14 September 1989 when the tallest KP and BJP leader, Pt Tika Lal Taploo, a prominent lawyer of the Srinagar Bar was murdered. He fell victim to the JKLF terrorists’ bullets just outside his home in downtown Srinagar. His killing set off a series of target killings of KP leaders by the trigger-happy terrorists who used to celebrate counting the heads killed. This dance of death continued to the extent that a killer terrorist confessed on local TV channels that he had killed KPs in double digits and had lost the exact count.

Retired District and Session Judge Pt Neelkanth Ganjoo was killed on 4 November 1989 in Hari Singh High Street Market. Ganjoo had presided over the trial of JKLF founder Maqbool Bhat in the murder of police inspector Amar Chand in 1966. In August 1968, he sentenced Bhat to death. This sentence was upheld by the Supreme Court in 1982. Bhat’s execution was carried out in Tihar jail.

On 30 April 1990 at village Shali, in the Kokernag area of district Anantnag, three armed militants kidnapped a renowned freedom fighter, teacher and scholar, Pt Sarvanand Koul. Sensing something amiss, his younger son Virendra Koul requested the gunmen that he be allowed to accompany his father. He joined his father, but two days later two dead bodies were found hanging with their limbs broken, hairs uprooted, and portions of their skin slit open and burnt. The dead poet and teacher was the 67-year-old Kashmiri Hindu Pandit Sarvanand Koul “Premi” and his youthful son Pandit Virendra Koul.

Late Pt Sarwanand Koul Premi was so popular that Jammu and Kashmir government last year decided to introduce the Urdu version of Shrimad Bhagavad Gita and the Kashmiri version of Ramayana authored by the late Premi in all educational institutions of Jammu and Kashmir state for the benefit of the students.

Another renowned son of the soil and a senior lawyer of Anantnag bar, Pt Prem Nath Bhat was killed. Director Doordarshan, Pt Lassa Koul, Special Director Food Supply department, A.K. Raina, Satish Tikoo, Ms Sarla (was sawed by a blade), Ms Ganjoo of Sopore, officials of Intelligence Bureau and hundreds of members of the KP community were brutally murdered to get rid of the entire KP community from the soil of Kashmir.

The terrorists mercilessly killed Chuni Lal Shalla, Inspector Jammu and Kashmir Police (CID) of Seer Jagir, Sopore while he was travelling in a bus from Kupwara to Sopore. “By March 1990 most of the Pandits had left valley to save their lives and honour.”

There are hundreds of similar stories of gruesome killings, torture, intimidation, loot and plunder of properties of Kashmiri Hindus by the terrorists and their local sympathisers.

After individual killings, the mass massacre of Hindus started, which frightened the leftover families living in different parts of Kashmir. The massacres in Sangrampora, Wandhama, Chatisingpora, and Nadimarg alone consumed more than 60 innocent lives of Kashmiri Hindus and Sikhs, who included infants, children, young, elderly and also women.

The Sangrampora massacre claimed seven Kashmiri Pandit Hindu villagers in Sangrampora village of Budgam district on 21 March 1997 by Islamic terrorists. This was the first series of massacres which selectively targeted minorities in Jammu and Kashmir. The victims were lined up and the Islamic terrorists shot and killed seven people.

The Wandhama killings of 1998 claimed 23 Kashmiri Pandit Hindus in the town of Wandhama on 25 January 1998. The victims included four children, nine women and 10 men. The attackers also demolished a Hindu temple and a house. The then Prime Minister of India, Inder Kumar Gujral joined the mourners in Kashmir’s Wandhama village on 28 January. The Prime Minister was anguished and expressed heartfelt condolences. He was accompanied by then Governor General, K.V. Krishna Rao.

The Nadimarg massacre claimed 24 Hindu Kashmiri Pandits in the village of Nadimarg in Pulwama district of Jammu and Kashmir by terrorists on 23 March 2003.

The communalism had manifested viciously from 1947 onwards but was confined to discrimination against the members of religious minority at the administrative levels and in educational and professional institutions. The murder and massacre became an order, starting with the murder of police inspector Amar Chand of Nadhal, Bandipora, in 1966 by JKLF terrorists and its so called founder Maqbool Bhat, who was tried for the inspector’s murder.

In August 1968, Maqbool Bhat was sentenced to death. The sentence was upheld by the Supreme Court in 1982. Bhat’s execution was carried out in Tihar jail, thereafter after having availed all the mercy remedies under the Constitutional process.

1986 became a turning point in the vicious communal campaign against the KP community. In February 1986, the communal settlers incited the Kashmiri Muslims by a virulent propaganda that “Islam khatrey mein hey (Islam is in danger)”. As a result, Kashmiri Pandits were targeted by the Muslims. Many incidents were reported in various areas where Kashmiri Hindus’ properties and temples were damaged and destroyed. The worst hit areas were mainly in South Kashmir and Sopore. In Vanpoh, Lukbhavan, Anantnag, Salar and Fatehpur, Muslim mobs plundered or destroyed the properties and temples of Hindus.

During the Anantnag riot in February 1986, although no Hindu was killed, many houses and other properties belonging to Hindus were looted, burnt or damaged. The incumbent state government was dismissed.

On 12 March 1986, Governor’s Rule was imposed. The political narrative unfolded on deadly communal lines and was portrayed as a conflict between “Hindu” New Delhi (Central Government)—and its efforts to impose its will in the state—and “Muslim” Kashmir, represented by political Islamists and clerics.

The Islamists had organised under a banner named Muslim United Front, with a manifesto to work for Islamic unity and against political interference from the Centre, and contested the 1987 state elections, in which they lost again. However, the 1987 elections were widely believed to be unfairly conducted, so as to bring the secular parties (NC and INC) in Kashmir at the forefront, and this caused the trigger point to insurgency in Kashmir. The Kashmiri militants killed anyone who openly expressed pro-India policies. Kashmiri Pandits were targeted specifically because they were seen as presenting Indian presence in Kashmir because of their faith and pronounced patriotism.

Though the insurgency had been launched by JKLF, groups rose over the next few months advocating for the establishment of Nizam-e-Mustafa (Rule of Muhammad). The Islamist groups proclaimed the Islamicisation of socio-political and economic set-up, merger with Pakistan, unification of ummah and establishment of an Islamic Caliphate. Liquidation of Central government officials, Pandits, liberal and nationalist intellectuals, social and cultural activists was described as necessary to rid the valley of un-Islamic elements.

Pakistan’s strategy of continuing a low-intensity war with India has the following components, (i) intensification of terrorist activities in a wide area extending from J&K to other parts ii) strengthening the strategic alliance between Kashmiri militants and international terrorist groups; (iii) focusing on coordinated attacks by the militant outfits on the security forces in J&K and elsewhere (iv) using the neighbouring countries to the north and east of India for executing terrorist activities in India and (v) Unleashing false propaganda against India. Through revamping the clandestine TV channels run by ISI, other media networks.Pakistan and ISI agency has a direct hand in infiltrating Afghans and other mercenaries into J&K State and in creating militant outfits , that have been declared as a terrorist outfit by UN and USA. ISI has spread its tentacles in communally sensitive areas of UP, Bihar and Assam for creating a nexus between various Pan-Islamic outfits. Indo-Pak border vulnerability to drug trafficking is being used by ISI. The menance of drug trafficking along the Indo-Pak border has assumed alarming proportions.

The concerns voiced by international community through the UN Human Rights Commission, the U.N. General Assembly, the National Human Rights Commission of India, to which the complaints have already been made of the violations of human rights of the Kashmiri people, have not brought about any peace in Kashmir; instead the pattern of militancy has changed. The United States has taken tough measures to deal with international terrorism. The Indian nation-state has zero tolerance policy on terrorism and dealing sternly with terrorists to ensure the full enjoyment of the human rights by the citizens.

The countries from where the terrorists receive support and material and moral back-up are put on notice, that if they do not stop arming, training and supporting the trans-border terrorism and bring the perpetrators of human rights violatios to book, such country shall be declared as a ‘Terrorist State’ by the international community and severe sanctions and censures shall be applied, then only the menace of terrorism can be effectively eliminated and perpetrators of massive and gross violations of human rights can be punished.

Parliament enacted an Act in 1993 to provide for constitution of a National Human Rights Commission, State Human Rights Commissions in the states and Human Rights Courts for better protection of human rights and for all matters connected therewith and incidental thereto, which is called; the Protection of Human Rights Act, 1993. This Act applies to whole of India. The Kashmiri Pandits have brought their massive violations of human rights to the notice of the National Human Rights Commission (NHRC) way back in 1995-1996, through a detailed petition/ memorandum filed by the representative organizations of Kashmiri Pandits.

After hearing the parties to the petitions full commission NHRC gave a detailed verdict and described the Killings inflicted on Kashmiri Pandits “akin to Genocide”.

The security situation along the Indo-Pak border continues to be very alarming. The tensions and killings in various parts of the State are a continuing phenomenon. The LG administration and Central governments are primary engaged in combating the security-related problems. Kashmiri Pandit problems have, however, received no serious considerations, except that it finds place in BJP election manifesto and a generic time to time statements by top leaders that reversal of KP exile is on cards and their (Kashmir) Pandits) problem is a priority item on the Central Govt.’s policy agenda.

Today Kashmiri society is on historical cross-roads. Its peaceful ethos, its liberal Islam, its culture of Sufi saints, its Kashmiriyat and its image as a strong citadel of co-existence and pluralistic society lay shattered and devastated by the decades old violence by terrorists and mercenaries. The threat of foisting an alien way of life on Kashmiris by pan-Islamic fanatics is very grave. The Kashmiri society, which is predominantly Muslim,are in introspective mode their choice towards the pluralistic, peaceful democratic and modern way of life was reflected by large participation in recent DDC elections. They have to seriously introspected the happenings and violence of the past three decades and decide about the future socio-political dispensation under which they have to live.

The ethno-religious minority of Kashmiri Pandits which has the original indigenous roots in history linked with Kashmir, have inalienable right of life in that land. Nobody can wish away their rights in the land. If the democratic way of life has to exist and function genuinely in Kashmir, all the violence and terrorism has to end. The violence perpetrated from across the border by Pakistan, ISI operators and other groups has to come to an end. There is a need to enlarge the political space in Kashmir to encompass the views which have not yet been heard, or have not yet participated, for setting up the trend towards a greater tolerant and pluralistic process. Kashmiris are today longing for deciding their matters through peaceful and democratic process – we all must nurture and develop such processes which can put an overall end to the death and destruction phenomenon unleashed by violence in the beautiful vale of Kashmir.

Any process for lasting solutions in whichever form is incomplete without the presence, participation and physical involvement of the Kashmiri Pandit community in the Kashmir affairs.

All Kashmiris emphatically urge Pakistan to keep off Kashmir,stop trans-border terrorism on the peaceful people.KashmirIs are determined to pick up once again the peaceful, pluralistic and democratic way of life. Enough is enough. In Kashmir, much blood has been shed by now, so let all together reknit, reweave and revive the ethos of Kashmir once again for the full enjoyment of human rights and development.

Enough is Enough.Pakistan has to keep off and allow Kashmiris to pick up the plural ethos,democracy and development as a way forward to live as a terror free society, reduce tensions and strengthen the processes, that makes all to live up to the ideals of universal peace and for upholding the human rights of all and one.

Kashmiri Pandits as a Community is determined to return home sooner than later to live and enjoy right to peaceful and secured life,liberty,Political empowerment and spiritual & cultural space.

Ashok Bhan is an Senior Advocate,Supreme Court of India, Distinguished fellow USI And; Chairman-Kashmir (Policy & Strategy) Group.

The communalism had manifested viciously from 1947 onwards but was confined to discrimination against the members of religious minority at the administrative levels and in educational and professional institutions. The murder and massacre became an order, starting with the killing of police inspector Amar Chand of Nadhal, Bandipora, in 1966 by JKLF terrorists and its so-called founder Maqbool Bhat, who was tried for the inspector’s murder.

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