Intellectual Property Rights require being creative. But what is creativity, and can it encompass within it the dimensions of life?
With time priorities are shifting from social need to potential return on investment, and this has served as the principal criterion for commercially guided research. If this continues, there will be a period the rivulets of knowledge(s), and learning will be forgotten and become extinct.
Bio-piracy is the act of financially abusing normal happening biochemical or hereditary processes, by getting licenses that limit its future use while neglecting reasonable compensation to the communities from whom it originates. The term is in vogue for explaining the situation where indigenous knowledge of nature is being used by others without furnishing due acknowledgment to the holders of the same. It is associated with intellectual property rights and is concerned with traditional knowledge or know-how of the local communities enclosed by the biodiversity.
The problem of bio-piracy has broader international implications that has made it an urgent issue for all countries. Bio-piracy as a threat to biodiversity is a result of the IPR regime and the conflicting interests of the two groups i.e., Transnational companies and natural diversity that has posed challenges upon the Western assumption on the propriety of patents. The conflict has also presented the problem of misunderstandings and disagreements of the developing countries with Western patent laws. Bio-piracy disputes are several, and most of the episodes suggest that bio-piracy patents are contrary to the wishes of indigenous communities who are inclined to keep certain erudition sacred.
The seed of the earth: Can we claim?
“Life is not an invention” when Vandana Shiva wrote this phrase she meant to convey to the market that it cannot apply for the patent claiming they created a new life.
Over the last two decades, IPRs and particularly patents have covered a large field of activities. The corporations have successfully influenced patent laws to acquire the ownership of life and control over the survival essentials like seeds and medicine, and other life forms. Such ownership is criticized by authors for being violative of Article 21 of the Constitution of India. IPRs have been expanded to cover the living systems and organisms in the fake garb of ‘innovation’ and ‘invention’. Such distortions are compositions of big corporations dealing in pharmaceuticals, cosmetics, and agribusiness, etc.
With time corporations have acquired controlling powers to dominate the diversity of life on the earth and are influencing people’s indigenous knowledge by proposing and implementing new property rights. There are cases around the globe and particularly in India where corporations have robbed people out of their knowledge and have registered the products of the same in their names. There is no innovation in these cases; instead, they are instruments of monopoly over life itself. Life forms are now redefined as ‘machines and manufacture’ snatching the integrity and self-organization that life held. A new epidemic of bio-piracy has been unleashed by the involvement in the piracy and patenting of traditional knowledge.
Patents on life embed creativity intrinsic to the living systems under which happens the reproduction and exists the freedom of self-organization. Patents going beyond, engird the internal ranges of the figures of plants, animals, and women. They are capturing free locutions by converting publicly kindled information into private property. IPRs that are supposed to reward and stimulate creativity concerning life-forms are in turn stifling the creativity fundamental to the social production of knowledge. The world has moved generations to replace the ideology of terra mater with that of terra nullius (empty lands been expanded to empty lives).
THE MODEL OF IPR: AN INSTRUMENT TO CONTROL THE COMMONS
Biodiversity is a social and cultural issue, and the biological resources exist under the common property systems governed by the principles of justice and sustainability. IPR regime on the other hand sees value as a creation of commercial exploitation. They deny the creativity in nature; while parallel to it they indeed use the creativity, knowledge, and intelligence of the commons. The regime does not recognize creativity but emphasis the protection of capital investment and tends to own the knowledge, products, and processes emerging from it. Thus, systematically alienating the knowledge and resources from the first custodians and patrons leading to the creation of monopoly with the multi-national companies.
Via this trend, biodiversity is turned from a local common into a girdled private property. This enclosure is being universalized by the TRIPs treaty. However, as it is considered by some critics like Dr. Vandana Shiva that
“the CBD along with GATT (TRIPS) are a prescription for a monoculture of knowledge since these instruments are being used to universalize the U.S. Patent regime worldwide, which inevitably lead to an intellectual and cultural impoverishment by displacing other ways of knowing, other objectives for knowledge creation, and other modes of knowledge sharing”.
There are two restrictions that the international agreement poses, one of them is exclusions of knowledge, innovations, and ideas possessed by the “intellectual commons” i.e., the local communities belonging to the diverse biological resources from the category of common rights. The next restriction that IPRs introduce is that an idea or understanding is eligible for recognition only when its use yields profits, a mere value in the minds of its users to meet the social needs does not place them on the paddle for recognition. According to Article 27.1, an IPR sanction requires innovation to be that which is able of industrial application. The result of such criterion is the exclusion of all the other sectors that innovate and produce in the mode other than industry.
Fundamental to the privatization of information and biodiversity is the devaluation of local awareness, the relocation of nearby rights, and all the while, the production of restraining monopoly rights to biodiversity use through the case of novelty. Some tendencies enclose the issue of knowledge, one among them is the paradigm of mechanistic reductionism which is the root cause for the negative ecological and health implications. This western concept of reductionism purports that non-Western systems of knowledge are old and inimical when in reality they are to be adapted as they respect life and not take it as a material commodity. On the flip side, precisely when original systems of knowledge could come into their own, the GATT is utilizing IPRs to fortify the syndication of Western frameworks and is depreciating indigenous frameworks, even while misusing them for setting up IPR monopolies. IPRs lend support in the systematic privatization of biodiversity and the intellectual commons and “Bio-prospecting” is the expression employed to explain this new model of the enclosure.
Bio-prospecting is the exploration of commercially worth biochemical and genetic resources. The simile is plagiarized from the prospecting for oil or gold. Biodiversity is fast becoming the green oil and green gold for the biotechnology and pharmaceutical industries, the metaphor suggests that the value and use of biodiversity lie with the prospector, when it is held by local indigenous communities. The metaphor denies the fact that biodiversity was not buried and unused before it was being prospected. Unlike gold and oil, it did not lie beneath the earth; on the contrary, the local communities knew its value and use long before prospecting.
TRIPS is encroaching on the Common Property Rights to biodiversity and biodiversity-related knowledge because the entire design of TRIPS is to proffer individuals and corporations the monopoly rights as stated in the 1988 industry paper, “Basic Framework for GATT Provisions on Intellectual Property,” coauthored by IPC, Keidanren, and UNICE:
“Because national intellectual property protection systems differ, intellectual property right owners spend a disproportionate amount of time and resources to acquire and defend rights. These owners also find that the exercise of intellectual property rights is encumbered by laws and regulations limiting market access or the ability to repatriate profits”.
The TRIPS agreement by letting monopolistic charge or control on life-forms has posed severe repercussions for biodiversity preservation and the environment. Article 27 (3) (b) of the agreement states:
Members may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.
The developing countries were always in threat when it came to TRIPS, the Indian Minister of Trade and Commerce Shri Murasoli Maran in a forum on “Intellectual Property Policy and Strategy in the 21st Century,” at Geneva in 2000 expressed his fear of how “the industrialized countries are using TRIPS as a tool to prevent developing countries having used reversed engineering and other methods of imitative innovation during their process of industrialization”.
The practical implementation of TRIPS and other IPR related laws is mocked by the torch-bearing North or Western corner of the globe. Surmounted dominions were treated as people less when patents of the 15th and 16th centuries were granted. People were naturalized into “our subjects.” Today, we remain to be the subjects of the Western power markets and the growing trends of protection for profit generation. The regime has shifted the interest of commons to the private right thus, supporting the private right over the empty seeds of life. As understood by Dr. Vandana Shiva TRIPS is hence a tool for the privatization of the learned commons and for de-intellectualization of civic society as the mind has become a corporate monopoly. Surely, our planet deserves a fairer deal.
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Central Vista Project case: Is PIL about public or publicity?
Central Vista Avenue Redevelopment Project referred to as the Central Vista Project (CVP) has attracted a lot of eyeballs in the recent past due to the PILs filed in Supreme Court and then Delhi High Court and the political statements issued by opposition in this context. A set of media articles has also spent bottles of ink highlighting the problems with this project. Delhi High Court while judicially reviewing a case against CVP (PIL: Anya Malhotra vs. Union of India), declared the CVP as “an essential project of National Importance”, and went ahead to mention in the order that “this is a motivated petition preferred by the petitioners and not a genuine public interest litigation” with imposing a cost of Rs. 100,000/- (one lakh). Pradeep Kumar Yadav has now challenged the May 31st decision of the High Court in an appeal before the Supreme Court. Interestingly, Supreme Court has already in a 611 page order (2:1) in the case of Rajeev Suri vs. Delhi Development Authority & Ors (decided on 5th January 2021) has given a green signal to the project. Hon’ble Justice Sanjiv Khanna dissented from the majority on the issues of “public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee (HCC) and the environmental clearance order passed by the Expert Appraisal Committee (EAC)”; however, concurring with the majority on “the aspects of Notice inviting Bid, award of consultancy and the order of the Urban Arts Commission”.
Public Interest Litigation: PIL is basically a relaxation in the rule of ‘locus standi’ (the right or capacity to bring an action or to appear in a court). The traditional rule is that a person who brings the action must have the cause of action/ locus standi. In cases of fundamental rights, it is the person whose rights have been infringed brings this locus. However, there are situations in which the aggrieved person may not be able to reach Supreme Court or High Courts for vindication of his/her rights, in such situations Supreme Court has allowed any ‘public spirited citizen’ to bring a case on behalf of the aggrieved person. Justice V.R. Krishna Iyer observed in Akhil Bhartiya Soshit Karmachari Sangh Case (1981) that “access to justice through ‘class actions’, ‘public interest litigation’ and ‘representative proceedings’ is the present constitutional jurisprudence”. The concept of class action comes from the American jurisprudence.
Hussainara Khatoon vs. State of Bihar (1979) became the first reported case of PIL which focused on the inhuman conditions of prisons and under trial prisoners that led to the release of more than 40,000 under trial prisoners (petition filed by Kapila Hingorani). Justice P.N. Bhagwati in SP Gupta case (1982) laid down the foundation of modern PIL in India by stating “any member of the public having sufficient interest can maintain an action for judicial redress for public inquiry arising from breach of public duty or from violation of some provisions of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provisions.”
A PIL may be filed against ‘State’ both under Article 32 before Supreme Court (only for breach of fundamental rights) and under Article 226 before High Court. The Court can itself take cognizance of the matter and proceed suo motu as well on the basis of public information received by it through newspapers or any other source. Supreme Court has entertained even letters as petitions in some cases (epistolary jurisdiction). Evolution of PIL as a mode of helping people became the purpose/objective for many Non-Governmental Organisations (NGOs) like Peoples Union for Democratic Reforms, Rural Litigation and Entitlement Kendra, Indian Council for Enviro-Legal Action, People’s Union for Civil Liberties, etc.
There are hundreds of PIL decided by Supreme Court and High courts. These PILs have ushered in the era of judicial activism. Supreme Court has used its jurisdiction under Article 32 in a creative manner, also referred to as Judicial Activism, giving new dimensions, meaning, scope and purpose to many fundamental right, especially Article 21 – the Right to Life and Personal Liberty.
Publicity Interest Litigations: While elaborating the concept of locus standi, Justice PN Bhagwati had also cautioned, “but we must be careful to see that the member of the public, who approaches the court in case of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The courts must not allow its process to be abused by politicians and others….” Supreme Court in several cases has deprecated the practice of PILs turning into ‘Private Interest Litigation’ or ‘Political Interest Litigation’ by imposing heavy costs on the petitioner.
Supreme Court Guidelines on PIL excludes the following cases from being entertained as PIL: (1) Landlord-Tenant matters. (2) Service matter and those pertaining to Pension and Gratuity. (3) Complaints against Central/ State Government Departments and Local Bodies except those relating to the listed matters to be entertained as PIL (4) Admission to medical and other educational institution. (5) Petitions for early hearing of cases pending in High Courts and Subordinate Courts.
In the Central Vista Case, while disposing of a bunch of petitions on this subject, the Supreme Court has observed, “The tool of public interest litigation or “social interest litigation”, as it is more appropriately called, was devised to open the doors of the constitutional Courts for remedying glaring injustices against humans, that is, for securing constitutional rights. It was never meant to transform the constitutional Court as a superlative authority over day-to-day governance.”
Delhi High Court rejected the argument of petitioners being ‘public spirited citizens’ in Central Vista PIL on the ground of being selective of one construction project when similar constructions at other places were not challenged. The court said “It was vehemently argued that the fact that the petitioners have chosen to be ‘public spirited citizens’ only with regard to one project, speaks volumes of their ill-intent behind filing the present petition as well as lack of bonafides, which is the foremost issue that the Court has to consider while entertaining a public interest litigation. The ‘public spirit’ and ‘public interest’ of the petitioners is evidently selective and the present petition being completely motivated must be dismissed on this ground alone.”
The Central Vista Project
In the heart of the national capital, and within the “Lutyens’ Bungalow Zone” (LBZ), lies the Central Vista – the centrepiece and living heritage of Delhi. The Indian National Trust for Art and Cultural Heritage (INTACH) describes Central Vista as the “ensemble with main axis Rajpath…the Rashtrapati Bhawan at Raisina Hills, flanked by the Secretariat (North and South Blocks)…the Parliament House…the hexagonal round-about that has the India Gate and the Canopy…” (Supreme Court). The present Central Vista has emerged out of the urban architectural design of Edward Lutyens and Herbert Baker when British Raj decided to move the capital city from Calcutta to Delhi on December 12, 1911. It all began with the construction of the palatial residence for the Viceroy of India at Raisina Hills. About 300 families were displaced by the application of Land Acquisition Act, 1894. When we got independence and Dr. Rajendra Prasad became the first president of independent India, it was named as Rashtrapati Bhawan. The other buildings which came up surrounding this were the Sansad Bhawan, North and South Blocks and first building of the National Archives. The Rajpath
The policy on the re-development of the Central Vista Avenue emerged out of the need to have larger working space and efficient functioning of the legislature and integrated administrative blocks presently spread in different locations. The first building requiring attention was the Parliament House, a Grade I heritage structure which has been transformed several times during the past 74 years of independence. The population has significantly grown from about 55 crore to 130 crore and the next delimitation exercise to be done in 2026 would require an increase in the number of Lok Sabha seats from the current 545. The new Parliament shall symbolize the 75th Independence Day of the country in 2022. The initiative of redevelopment got a shot in the arm with a letter written by the OSD of Lok Sabha speaker to Secretary, Urban Development Ministry highlighting the stress on the present infrastructure and the need for large space (July 13, 2012).
The second sub-project is the redevelopment of Central Vista Avenue which is basically the public space on both sides of the Rajpath starting from India Gate to Rashtrapati Bhawan where the Republic Day Celebrations are held on 26th January every year. It is proposed to hold the Republic Day parade of 2022 in the new re-developed Rajpath. Solicitor General in his submissions before the Supreme Court had stated that it is very important public place and most widely visited by common public and tourists and hence the scope of the work includes “(i.) Providing public amenities like toilet blocks, paths, parking space, vendor zone; (ii.) Making four pedestrian underpasses below Janpath and C-Hexagon Road. (iii.) Improvement of canals, bridges, lawns, lights etc.”
The Politics of Central Vista: Of late, it has been very difficult for the citizens to differentiate between the issues which has pure political angle versus the legal issues concerning the larger public interest. Unfortunately, the politics have driven itself away from larger public interest towards the short-term election goals. The jibe ‘Modi Mahal’ terming CVP as the project to provide a house for the Prime Minister Narendra Modi is nothing but a gimmick, as any infrastructure created by the Government of India belongs to the public and is to be utilized for the public for the times to come. For example the ‘Nehru Memorial Museum & Library’ (NMML), housed within the Teen Murti complex, cannot at any stretch of imagination be called the “Nehru Mahal”, or for that matter, the large Samadhi sthals created for our beloved leaders. These are all public places and have its own social, cultural and historical importance. Another major political question has also been about the timing of the CPV. Whether it was right to invest in such infrastructure project when the country is fighting with COVID? The logic is indeed emotional and touches our heart, but the question is do we stall all our activities because of the pandemic? Is there a Financial Emergency declared under the Constitution? Interestingly, a bit of a research shows that a Times print in 1964 (when NMML was founded) reported “Hunger grows in India: major crisis in the nation is feared as population growth outpaces that of food production”. Do we say the investment in NMML was not right at that time? If yes, probably we could not have an institution to foster academic research on modern and contemporary history. Any infrastructure developed under this project will be utilized by the successive generations to come, however, yes in the history, the credit of doing the work will go to the political party in power at that point in time. However, as a researcher in law one has to stay away from these logics and political hullaballoo. The harmful effect of muddling the legal and political issues is that the genuine legal issues get subsumed into the chatter and noise around the gimmicks and sloganeering. A series of decisions/ oral remarks in past couple of years by the various courts in India have shown that judiciary cannot remain completely uninfluenced by what is happening around, including the perceptions created by the media reporting. This would require another study.
Another interesting angle of political criticism arose due to the decision of Prime Minister doing Bhumipujan by the Prime Minister. A group of former secretaries raised this issue in an open letter stating “We wonder what locus standi the Prime Minister has to lay the foundation stone of the Parliament building. The Prime Minister is the head of the executive, not of the legislature. For a building that will accommodate the two Houses of Parliament, the appropriate protocol would have been for the President of India to lay the foundation stone. This was a clear instance of breach of Constitutional propriety”. Well, this brings us to an interesting perspective of ‘propriety and law’, which is indeed a grey area. All faith prayer marked the foundation stone-laying ceremony of the new parliament building with Bhumipujan being performed as per Hindu rites. Some may initiative arguments of ‘secularism’ on this, but again not a point to discuss for this article.
There is always a logic given that why do we need such infrastructure development, we could have had hospitals and schools instead. My take is that country requires everything including hospitals and schools, at the same time also a world class infrastructure which we could be proud of. It is about balancing the interests keeping in view the needs of future generation.
Challenge before the Supreme Court: Legal scholars would be looking at the outcome of the appeal against the decision of Delhi High Court, however, keeping in view that Supreme Court’s three judge bench has already decided 2:1 in favour of the project, a different outcome is very unlikely, and moreover when Delhi is unlocking from the pandemic. Supreme Court in its January 5th decision had already said, “No doubt, the Courts are repositories of immense public trust and the fact that some public interest actions have generated commendable results is noteworthy, but it is equally important to realise that Courts operate within the boundaries defined by the Constitution. We cannot be called upon to govern. For, we have no wherewithal or prowess and expertise in that regard.”
Still, if there is a chance that matter is entertained, what could be legal issues before the court? One of the preliminary issue in the appeal against the decision would come on the ground of locus of the appellant as it appears that original petitioners before Delhi High Court have not yet preferred the appeal. Some of the other issues could be:
A. Public Health Issues – violation of Disaster Management Act (DMA) – The main ground of challenge before Delhi High court was violation of DMA in continuing with the construction of CVP and causing thread to public health. Court noted that “the construction activity is not prohibited under paragraph-8 of the order of the DDMA dated 19th April, 2021 issued under Section 22 of the Disaster Management Act, 2005, where workers are residing on-site, contrary to the stand of the petitioners.” It is argued that there were construction workers coming from another site of the vendor. I doubt, there emerges any ‘question of law’ to be entertained in appeal.
B. Welfare of Labour – The PIL espouses the cause of the safety of the labour working at the construction site. Stalling the project in fact affects the labour more, as most of these labour are migrant laborers. In the past, Supreme Court has been called upon by several quarters to order Central and State Government to ameliorate the plight of these migrant workers. A view contrary to this is very unlikely.
C. Breach of ‘Public Trust Doctrine’ – One of the major challenges is about breach of ‘public trust’ doctrine by the Government. It is argued that stakeholders who would be affected by the project have not been consulted while sanctioning the change in land use under the Delhi Development Act, 1957. Supreme Court rejected the argument on sustainable development stating “In the present case, the subject project is an independent building and construction project wherein one-time construction activity is to be carried out. It is not a perpetual or continuous activity like a running industry. It is absolutely incomprehensible to accept that a project of this nature would be unsustainable with the needs and aspirations of future generations.” Supreme Court in its order has already held otherwise, except the dissenting opinion, which provides some hope to the potential appellant. However, this would require a constitution bench of minimum 5 judges to take a contrary view.
D. Heritage Clearances – Supreme Court has already stated that the requisite heritage clearances shall be obtained before proceeding with any alteration to the heritage sites. In this case 7 out of 141 listed heritage sites are of relevance and these are parliament house and campus, central vista precincts (Rajpath), National Archives and campus, grave platform, and vice-president’s house. A clearance made by HCC not in conformity of the laws, may be challenged at appropriate forum. So is the case with environmental clearance, however, Supreme Court did not find any merit for ‘Merits Review’ by National Green Tribunal (NGT). The questions raised in the petition have been termed as ‘mere suspicions’ not meriting any in-depth technical analysis.
E. Cost of the Project – There have been a lot of discussions around the cost of the project pipped at Rs. 20,000 crores, justification is that the project is spread over several years in different phases. The current projects are New Parliament Building and rejuvenation of Central Vista at an estimated cost of Rs. 862 crores and Rs. 477 crores respectively. In Tata Cellular case and subsequent cases, Supreme Court has already been established that it will normally not go into the strategic/policy wisdom of the government. In fact, the courts shall hesitate to stall the projects temporarily, as it would escalate the cost of the project and ultimately a burden on public exchequer. Ultimately, it is the tax payer’s money.
F. Timing of the Project – The project has been caught amidst the storm of COVID pandemic and thus so much of public attention and purported bad publicity. However, there is no legal issue to challenge this unless there is a declared financial emergency. At the most, it is a question to be discussed by the parliamentarians in the parliament. Ironically, will this be discussed in the parliament for not having a parliament building which provides with modern amenities and more space is doubtful.
I leave it to the readers to decide for themselves whether it is a “Public”, “Publicity” or “Political” interest litigation. However, looking at the PILs filed to challenge Central Vista project and the logic advanced reminds me of Delhi High Court’s observation while dismissing a PIL – “Chai peete peete idea aaya toh socha file karo PIL (while having tea you had an idea and decided to file a PIL). That is not how it is done. You may have an idea while walking on the road. “You have to do some homework and then file the petition.” (Economic Times – May 2, 2021). Why these cases can’t be brought before a mock moot court or youth parliament wherein the young generation discuss this at length and if a sound case emerges on legal point, courts may be approached. Country has a large pool of young legal professionals who needs to be nurtured and interest needs to be generated on these issues of public importance.
The Publicity Interest Litigations are doing a lot of harm to the genuine causes which are taken up by the courts through various PILs. It casts a shadow of doubt on the legitimate petitions and also eats away into the precious time of the courts, amidst the rising pendency of cases on a daily basis.
Dr Vijay Kumar Singh is Dean, School of Law at UPES Dehradun. Views are personal.
Analysing the importance of online dispute resolution during the coronavirus pandemic
International arbitration has used technology for as long as we know it. That technology may have been from very rudimentary concept such as email, just sending a document by email is the form of technological embrace in ADR.
ADR is something which is worldwide acknowledged and perceived and this is the most financially savvy and productive method of dealing with and taking into account disputes when contrasted with the traditional court framework and prosecution technique. Disputants or the parties these days lean towards ADR over the customary court framework due to several pros of the alternative dispute resolution mechanism. It’s not only because it is cost effective but it is also efficient. Parties have the right to choose their forum & choose the way they want their dispute to be settled. So, we can also say that ADR is Appropriate Dispute Resolution Mechanism, since this freedom of choice can only be available over here and not under the conventional court system.
ADR has not only been given global recognition and acceptance but in Indian law as well, U/S 89 of the Civil Procedure Code, it has been stated, that the court repowers to settle matter outside the court & officially got it notified in the year 2002. So, we can understand the strength of ADR under the Indian legal system through these acceptance and recognition.
Since the whole concept of ADR is to reduce burden of the courts where the litigation is so expensive, tedious and time-taking & at times litigants get frustrated, ADR provides a better opportunity where it ensures that there is more fluency, cost effectiveness and smooth proceedings where you have the right to choose your own forum and get your dispute resolved.
ONLINE DISPUTE RESOLUTION
Online dispute resolution is an arbitration institution or in addition to that it is a technology platform which people can use based on what it is, that they want to do out of that technology. For instance, if a person only wants to use the technology offerings and don’t want to use the institutional rules it is possible. On the other hand it is also a full institution which helps in appointing arbitrator which helps you resolve the dispute through amicable means.
International arbitration has used technology for as long as we know it. That technology may have been from very rudimentary concept such as email, just sending a document by email is the form of technological embrace in ADR. Using video conferencing is another aspect of technology. Online Dispute Resolution is a spectrum which does not fix a particular definition. So, as it is a whole spectrum of it, we need to know where it is on the spectrum we want to be and what the benefits are that being on that part of spectrum wins. The way traditional arbitration has used it, which is for instance only using email as a mode of communication or only using the video conferencing on the adhoc places and limited ability. For realizing the full ability of online dispute resolution we must try and explore a much wider spectrum of where it can be used.
With the following three principles in mind let’s try and analyze if that can be achieved:
• Can we make things faster?
• Can we make things fairer?
• Can we make things more effective?
And those of the three things we need to look at, while considering and analyzing whether online dispute resolution is good, bad, ugly or whether you want to use it or not. For making things faster using technology, the obvious ways can be just the ways you can communicate instantaneously over technology. That’s why when we compare existing court systems to arbitration or at least some arbitration where technology is used in these elements we can see the time advantages.
In real life about 25% of the life cycle of any case is spend just notifying the other party dispatching documents to the other party. If we look at the civil trial in a civil court its 5 yrs. on an average is spending one and a half year just communicating with the other party and sending the other party documents. Now that is the very crucial element where technology can play a huge role.
Firstly on the notification of the parties- when we are notifying the parties we can use technological means of notifications such as emails, messages, WhatsApp chats. In addition to it physical means of delivery can also be used, but not with the same limitations that are there presently. For example using courier with an automated tracking system makes the process of notifying the other party much faster. So this is another aspect where Online Dispute Resolution bodies can go on to resolve the dispute. The next cycle of the case is- after the other party has been notified of the case, he has to make filings. This is another stage where online dispute resolution can make a huge difference and there is the advantage of both the fast element of it and accessible element of it. If there is a situation where the parties are very distantly located, then if the person has to file a petition in the Supreme court then first they have to find a local advocate of that jurisdiction who will further connect with An Advocate on record at the Supreme Court who will further take over the matter at the apex court. So, in spite of all these difficulties the easiest ways could have been the Online Dispute Resolution that would be technology based. Further, the technology over here would have helped in making the things much faster and easier as compared to the conventional court system procedure.
Online dispute resolution has embellished a very positive impact to corporate, legal professionals (Lawyers) dealing in dispute resolution, ombudsmen and regulators, and the court of law. Corporates have to deal with a lot of disputes arising out from the customers, business partners, competitors, as well as from other business entities & corporate personalities.
Corporates have to deal with problems arising from various geographical areas and dealing with them involves a lot of time, money, support and manpower, and many a times, their image is also at stake. Online Dispute Resolution enables the corporates to resolve these disputes and the problems at a faster speed and helps them with out-of-court settlement. Corporates are thus getting benefitted by avoiding expensive litigation and reputation loss by using Online Dispute Resolution.
Legal professionals handling in dispute resolution are getting reap benefits by online dispute resolution techniques as it ameliorate their effectiveness in resolving the cases, and this makes their clients happy and satisfied.
BENEFITS OF ONLINE DISPUTE RESOLUTION
• Cost effective
• Convenient and quick dispute resolution
• Removes unconscious bias
• Increased access to justice
Online Dispute Resolution holds a lot of word of honor in addressing longstanding difficulty of justice delivery. Fortunately, the realization of this honor is not a farfetched one. As has become obvious during the current COVID-19 induced crises, people are very prepared and welcoming of technology to ease their daily lives. In turn, technology has shown to be accessible and adaptive to the demands of its users. The synergy of these occurrences, in the dispute resolution ecosystem, takes the form of Online Dispute Resolution. It would therefore only follow that there has never been a better time to harness Online Dispute Resolution’s potential than now. It will now depend on the various factors and stakeholders to determine the extent to which they are willing for their lives to be truly altered.
With reference to ODR & COVID-19, the mechanism of ODR proves to be a viable situation during the said time. Already courts are over burdened with matters and disputes. Due to the COVID-19 & lockdown the burden has doubled & if the statistics has to be preferred, then during this period at times courts were closed & now each court hear on an average 60-100 matters a day only. So the matter pending can be reflected by the statistics provided.
So, the pendency was already too much & with the COVID-19 they have added to the misery of the courts. So, ODR as a dispute mechanism process would really help in lowering the burden of the court during these times. Parties should go for Arbitration, mediation or any other ODR methods that fits for their dispute resolving process, getting amicable results without having the interference of the conventional court system coming into picture.
The blessing that has come in the period of COVID-19 is the digitalization of the courts and functioning of Judiciary. At the present time, courts are functional, but they are only hearing urgent matters. Therefore, to ease the burden of Courts disputants may prefer ODR over the Conventional Court System.
A scrutiny of sedition law with reference to the recent judgement in Vinod Dua case in relation to Kedar Nath Singh case of 1962
The Supreme Court shielded the well-known journalist from arrest earlier, the case was quashed on 2 June 2021 by a two-judge bench comprising of Justice U.U. Lalit and Justice Vineet Saran.
As per section 124A of the Indian Penal Code 1860, any written or spoken word or any visible representation which intends to bring into hatred or contempt or excites or attempts to excite discontentment towards the concerned Government is subject to penalization.
Sedition is the most contentious and intense topic of the political and constitutional history, invoked to abstain political criticism and tranquil the vernacular press of the British India.
The independent India as well exercises the law of sedition in the most tendentious and vexed way and the law remains open for wide interpretations. Coming across powerful and influential politicians charge vociferous political critics and journalists with Sedition and then it is annexed to be the predominant piece in the news, critically challenging and disputing with the reputation of the emphatic speaker is the commonest of things in the daily mail.
The recent case of Vinod Dua that has been quashed by the Supreme Court and has laid down principles from the Landmark Sedition judgment of the Kedar Nath case of 1962 that should be contemplated and analyzed rationally by every citizen to judiciously differentiate between portrayal of discontent in the form of an opinion which comes under the ambit of free speech and expression under Article 19 of the Constitution and the actual act of sedition that excites masses to violently spread any kind of distress and lawlessness and spreads hatred against the Government disturbing the harmony of the state that is covered under section 124-A of the Indian Penal Code,1860.
BRIEF ANALYSIS OF THE ACCUSATIONS AGAINST VINOD DUA
In a video released, Vinod Dua had criticized and denounced the Prime Minister and the Central Government for maladministration of the migrant crisis in 2020 with regard to the first wave that broke out.
BJP Leader Ajay Shyam filed Sedition case against the journalist and commented that his act and portrayal of opinion was intended to “instigate violence against the government and the prime minister by spreading fabricated information and malicious news.”
Section 124A that defines the act of Sedition punishes the act with imprisonment ranging from 3 years to a lifetime, a fine or both once proved.
With the Seditious charges being imposed on the Journalist by the BJP leader, the Himachal Pradesh Government was therein represented by Solicitor General, Tushar Mehta. The grounds of his argument in the Supreme Court were the journalist’s attempt to advance false information intending to spread panic and resentment against the government among the masses. He emphasized on his statements which mentioned ‘food riots post lockdown’ which had the potential of transmitting unprecedented panic and agitation.
THE COURT RULING ON THE SEDITION MATTER OF VINOD DUA
The Supreme court shielded the well-known journalist from arrest earlier, the case was quashed on 2nd of June 2021 by a two-judge bench comprising of Justice UU Lalit and Justice Vineet Saran.
The Supreme Court explicitly held that the remarks in the video made by Dua were a piece of opinion which were practiced under the Constitutional right ambit of right to free speech and expression, the comments were genuine and were constructive criticism and did not amount to Sedition.
Prayer of the Journalist
Vinod Dua in his prayer to the Apex Court appealed to the Hon’ble court to constitute a committee of Chief Justice of High Court or a Judge he deems fit be the most appropriate in his recommendation, the leader of the Opposition and the Home Minister of the state to examine and analyze the FIRs lodged under Section 124A, furthermore to prevent the misuse of the Sedition Law. He in addition added to his prayer that the persons associated with the media with a minimum of 10 years of standing should not be charged with Seditious offences unless the approval of the committee so constituted assents for the same.
APEX COURT’S SUBSTANTIVE REPLY TO THE PRAYER OF THE JOURNALIST
The Hon’ble court refused to give assent to the committee constitution as it shall amount to encroachment of the legislature’s domain. The Supreme Court further elaborated that every journalist shall be entitled to protection as stated in the Kedar Nath Judgment of 1962.
As every prosecution under Section 124A and 505 of the Indian Penal code must be in strict conformity with the with the scope and ambit of the sections mentioned above and completely in tune with the law laid down in the Kedar Nath Singh case.
PRINCIPLES STATED IN THE KEDAR NATH SINGH JUDGEMENT, 1962
The Constitutional validity of Sedition was upheld by the Apex court in the landmark judgment of 1962 in the Kedar Nath Singh case. The judgment furthermore strived to restrict its scope so as to curtail the possibility of misuse
The court explicitly held that criticism of the Government policies or the administration body if not accompanied by violence and public unrest cannot be labelled under the ambit of sedition.
Seven guidelines ruled out in the Kedar Nath Singh Judgment where sedition cannot be charged are detailed below:
BIFURCATION BETWEEN ‘THE GOVERNMENT ESTABLISHED BY LAW’ AND ‘THE PERSONS FOR THE TIME BEING HANDLING THE ADMINISTRATION’
There has to be a clear bifurcation between the Government established by law and the persons in charge of the administration for the current tenure as the Government established by law is an explicit representation of the state. The existence of the state will be in jeopardy if the Government established by law is destabilized.
Acts included under the ambit of Section 124-A of the Indian Penal Code, 1860
The acts that can be included under the ambit of Section 124-A and contain the effect of destabilizing a Government by bringing it into contempt and originating disaffection against it would be within the penal statute as it imports the concept of public unrest by the employment of lawlessness and violent activities.
The paramount criteria highlight the presence of violence and public disorder
The paramount criteria mentioned in the judgment is the presence of violence and public unrest which has been incited by the offender against whom sedition has been charged
RIGHT OF THE CITIZEN TO CONSTRUCTIVELY CRITICISE THE GOVERNMENT
A citizen has a right to criticize the government and its measures, by way of criticism or comment so long as he does not incite the feeling of public disorder and violence
AIM OF SECTION IS TO RENDER VIOLENT ACTIVITIES
The section and judgment mentioned makes it is reasonably explicit that sedition aims at rendering penal only such activities as would be intended or have a tendency to originate disorder or unrest of public peace or harmony by resort to violence pernicious tendency or intention of creating public disorder
It is only when the words written or spoken etc. which have the pernicious tendency of creating public unrest or disturbance of law and order that the law has to step in to prevent such activities in the interest of public disorder “we propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement or tendency to create public disorder or cause disturbance of public peace.”
The objective of the judicial system has always been to educate the citizens between the act of Sedition involving penalization, reputation exterminating and the freedom and right of very citizen to manifest his critical opinion without instigating and spreading hatred that could result into public distress and lawlessness.
Air Pollution : India has 22 of 30 most polluted cities in the world
At daybreak, we started driving to my grandmother’s house in Mussoorie. The foul-smelling fog made it strenuous to reach our destination. I could also see homeless people on the road. Many were kids my age. Immediately, I acknowledged how privileged we are to sit at home with air purifiers, while this hazardous air quality affects those on the streets every day.
According to research by IQ AirVisual, a Swiss-based group that gathers air-quality data globally, and Greenpeace, India has 22 of the 30 most polluted cities in the world. In 2015, out of the 10.3 million deaths in the country due to non-communicable diseases, 2.5 million were linked to pollution. The stakes are high and we should use our privilege to inspect what causes this issue, and how we may eradicate it.
Vehicle exhaust is one of the main sources contributing to air pollution in the country, making it dangerous to step outside of homes. Different vehicles on the road at the same time produce toxic gases. Another source contributing to the declining air quality is the generation of dust–particularly from construction sites. For example, in Delhi, a major fraction of the pollution load comes from the brick manufacturing industries, which are situated at the outskirts of the city. Moreover, in India, about 80% of municipal solid waste is still discarded into open dumping yards and landfills which apart from foul odor and poor water quality lead to various emissions.
Along with health, air pollution also impedes cultural inheritance. Ours is a diverse country, whose rich culture is overlooked due to the contaminants in the environment. New Delhi, the capital city that has so many historic monuments and landmarks, is often hidden in a haze of smog blanketing the city. The city’s situation is made worse by the colder winter air which is more stagnant, trapping the pollutants in place.
In addition to the underprivileged humans, air pollution also disproportionally risks non-human life. Even in animals, ozone affects the lung tissues causing respiratory conditions, such as asthma. Acid rain, which is a result of air pollution is harmful to the environment. It affects marine diversity as well. Ozone is another pollutant that is toxic to both plants and animals. It results in reduced photosynthesis and slower growth in plants.
The way we are going right now, the world will come to an end pretty soon. How can you all behave so carelessly and irresponsibly? What planet are you leaving behind for your children? What’s the point of holding elections and arguing about new policies when we won’t be able to survive only? We really need to wake up and see the damage that has been created due to us. It is now or never!
We can eradicate air pollution and minimise its adverse impact by moving away from fossil fuels that lead to vehicle exhaust, and from our unhealthy waste disposal habits. We can replace the former with alternative energies like solar, wind, and geothermal, and use them judicially.
Currently, due to the pandemic since everyone has been at home, the pollution levels have come down. We don’t use cars as much. The brick factories are not operational. You can see the graciously clear blue sky and huge fluffy white clouds. It clearly is a miracle, a good thing that has come out of the lockdown, and we should continue and sustain the same practices even after it is over. This is all in our hands now, no one is too small to make a difference.
Legal validity of the ban on transgender community from donating blood
The permanent deferral policy in India is introduced on the lines of the guidelines issued by WHO, though not with the same scientific temperament. It is imperative to note the historic background, resulting in this globalised policy on blood donation deferrals. During the HIV epidemic breakout in the 1980s, the United States alone had 179,136 AIDS cases and it had also spread to multiple continents.
The National AIDS Control Organisation (NACO) guidelines, on blood donor selection and blood donor referral, 2017, permanently defers the transgender community from blood donation, since they have a higher risk of contracting Human Immunodeficiency Virus (HIV). This article analyzes the loopholes and the constitutionality, vis-a-vis the purpose of the deferral policy and the HIV-AIDS (Prevention and Control) Act, 2017.
The permanent deferral policy in India is introduced on the lines of the guidelines issued by WHO, though not with the same scientific temperament. It is imperative to note the historic background, resulting in this globalised policy on blood donation deferrals. During the HIV epidemic breakout, in the 1980s, the United States alone had 179,136 AIDS cases and it had also spread to multiple continents. Since HIV was first found in Men who have sex with men (MSM) and sex workers, The Centre for Disease Control in the United Stated along with several other countries categorized these groups, including the transgender community which was previously under the MSM category for HIV surveillance, as High-Risk-Group and permanently deferred them from donating blood.
ANALYSIS OF THE NACO GUIDELINES
The said NACO guidelines, the intention is to facilitate a safe and sufficient supply of blood with minimal risk of infections amongst donors. Every unit of blood is screened for Transfusion Transmissible Infections. Further, the transgender community along with other potentially High-Risk Groups (HRG) are periodically subjected to HIV tests, as provided under Section 6(c) of the HIV-AIDS (Prevention and Control) Act, 2017 (hereinafter referred to as ‘the Act’). As per the NACO guidelines itself, these surveillance and screening tests are to be conducted every six months. These tests are done without the consent of the HRG, for epidemiological and surveillance purposes.
The Supreme Court, while reading down Section 377 of the Indian Penal Code to confine it to the offence of bestiality and non-consensual acts, in Navtej Singh Johar Vs Union of India, had also noted that behaviour and not sexual identity places people at risk of HIV. Therefore, transmission of HIV is not linked with sexual orientation or gender, rather, it is due to the differences in the knowledge about transmission, that puts people at risk of HIV. Further, the definition of ‘Significant risk’, as per Section 2(v) of the Act, means the presence of a significant risk body substance or a circumstance constituting a significant risk for transmission or in the presence of an infectious source and an uninfected person. Further, as noted by UNAIDS, HIV infections are not restricted to homosexuals and drug users. Anyone who has unprotected sex, blood transfusion with contaminated blood, sharing unsterilized equipment can be infected with HIV. This classification being scientific and subjective does not restrict communities based on gender or sexual orientation.
The Supreme Court in the case of National Legal Services Authority Vs Union of India had recognised the fundamental right of the transgender population as citizens of the country to possess an equal right and realise their full potential as human beings. Hence, the guidelines to bar transgender persons would alienate them and violate their right to a dignified life provided under Article 21 of the Constitution of India.
At the same time, it cannot be denied that there lies a duty on the State to identify HIV infected persons to stop further transmission via infected blood pool. However, the transgender community undergoes pre-blood screening, HIV tests, counselling and education. Further, as noted by the WHO, “during a pandemic situation, the risk of blood shortage far outweighs the risk of transfusion transmission. Further, though the positivity rate of the Transgender persons remain high, due to their mobility and indulgence in unprotected sex, yet, as per the study conducted by NACO, Transgender people have the lowest risk of contracting sexually transmitted infections, upon every clinic visit, when compared to the other High Risk Groups such as Female Sex Workers, Men who have sex with men, migrants, truckers and injecting drug users. Transgender persons also visit clinics for testing and treatment, more than any other High Risk Groups, at 79.06%, during every quarter. This reason could also attribute to the high positivity rate.
It is also to be noted that this had happened more almost three decades back and the research and development in the field of testing and treatments have been monumental. Today, we have tests which can detect HIV in the blood with high accuracy as early as 10 days in case of Nucleic Acid Tests (NAT) which also has a specificity and sensitivity of a 100%, and latest by 90 days in case of Antibody tests which also has very high specificity. Further, a recent estimate suggests that risk of HIV transmission through blood transfusion is 1 in 1.5 million which is far lesser than other transfusion related complications. As per guidelines issues by WHO, donor selection criteria and deferral of High-Risk Groups is to be done only in case, appropriate screening assays are not available. India statutorily mandated surveillance and screening amongst potentially high-risk groups every 6 months, combined with the advanced testing technology used today, significantly reduces the risk of transmission via transfusion. Hence, it is proposed that it is time for India adopted a time-based deferral of 3-6 months post unprotected sexual activity and not risk based deferral which not only deviates from the underlying purpose in the guidelines but is also discriminative of a group of people based on their gender and hence violative of article 14 therefore ultra-virus to the constitution.
Covid-19: Why plasma therapy is removed from clinical management guidelines
The antibodies that have been obtained by infected patients will benefit the person who is infected with the corona; this is known as plasma therapy. The ailment for which you are receiving plasma has been resolved fully.
For the past few months, you may have noticed that users on social media have been continuously requesting family members of former covid patients that we need plasma, and many individuals have been frustrated that they have not received plasma treatments in some way. You’ve probably heard many stories about patients who couldn’t live because they didn’t have access to plasma therapy, and there’s been a lot of talk about if the plasma is found, the patient will survive; otherwise, survival is problematic. However, during the night of May 17, the Government of India, which operates with a National Task Force, abruptly intervened. In its recommendation, the National Task Force eliminated plasma treatment from the Clinical Management Guidelines.
As a result, the Indian government no longer recommends that plasma therapy be offered to any hospital or clinic with a covid patient. Many people are perplexed as to why the government abruptly discontinued plasma therapy, which was saving lives. Today in this article, we will know why it was allowed, why it was withdrawn, whether it is appropriate to be removed, and what options are available, so that if any of us has a problem with someone, we will know how to address them and what to avoid.
PLASMA THERAPY: WHAT AND WHY
The antibodies that have been obtained by infected patients will benefit the person who is infected with the corona; this is known as Plasma therapy. The ailment for which you are receiving plasma has been resolved fully. It should also be free of any diseases that could affect him. Antibodies play the most important function in disease transmission because they can protect a person from a new disease that spreads quickly; however, only antibodies unique to this disease may protect a person. Antibody preparation method If there was no vaccination, the only way for antibodies to survive is for us to borrow antibodies from the person whose body have antibodies and save his life.
WHY PLASMA THERAPY WAS APPROVED FOR COVID-19
Plasma treatment was approved for COVID19 because it was used to treat the Spanish flu in 1918, the Swine flu in 2012, and EBOLA in 2014. This treatment was also a ready-to-use way for treating infectious diseases. Aside from that, there was no treatment, though the government was testing this therapy for COVID19 as well.
WHY IS PLASMA THERAPY DROPPED NOW?
Convalescent plasma therapy should be removed from treatment guidelines, according to all members of the ICMR-National Task Force on COVID-19, because it is ineffective and often used inappropriately. The government amended clinical recommendations for COVID-19 treatment on 17 may, removing the off-label use of convalescent plasma after finding it to be ineffective in slowing the progression of severe Covid-19. Last month, the ICMR-National Task Force for COVID-19 met and made the decision. Convalescent plasma should be removed from the guidelines, according to all members of the panel, because it is “ineffective and unsuitable” in many circumstances.
According to PTI, the task committee “updated” the Clinical Guidance for Management of Adult COVID-19 Patients and “deleted convalescent plasma (off label).” Doctors could use plasma therapy on patients with mild symptoms within seven days of beginning of symptoms if a high titre donor plasma was available, according to earlier guidelines.
Some doctors and scientists, including vaccinologist Gagandeep Kang, surgeon Pramesh CS, and others, have written to Principal Scientific Adviser K Vijay Raghavan, urging him to avoid using convalescent plasma for COVID-19 because it is “irrational and non-scientific.”
The letter, which was also addressed to ICMR Director Balram Bhargava and AIIMS Director Randeep Guleria, stated that current plasma therapy guidelines are not based on existing evidence, and that some preliminary evidence suggests a possible link between the emergence of variants with lower susceptibility to neutralising antibodies in immunosuppressed people receiving plasma therapy.
Irrational use of plasma therapy, according to these scientists and clinicians, could contribute to the production of more virulent strains, fueling the pandemic. “This is the result of government-issued recommendations, and we urgently request your intervention to resolve the situation so that COVID-19 patients, their families, professionals, and survivors are not harassed,” the letter stated.
And one of the major reasons to discontinue the plasma therapy is that India has adopted vaccination program which is more effective than plasma therapy and it is long lasting acquired immunity and it is better option as compared to plasma therapy.
PLASMA THERAPY’S COMPLEXITIES
The challenge of getting considerable amounts of plasma from survivors makes this therapy difficult to implement.
Not all recovered patients can offer to donate blood in disorders like COVID-19, where the majority of victims are elderly and have additional medical issues like hypertension, diabetes, and so on.
IS PLASMA THERAPY RELATED WITH NEW VARIENTS?
In a letter to the principal scientific advisory, ICMR president Balram Bhargava, and AIIMS director Randeep Guleria, 18 health professionals stated that when plasma treatment was utilised on an immunosuppressed patient, new variations were produced from the studies. and it was noted in the letter that there was a remote possibility of new variations emerging through plasma therapy. A treatment for which there is no cure for the disease and the possibility of new versions must be discontinued.
Medical professionals have proven that plasma treatment is not useful. It is a source of harassment for society, as well as a significant risk, as new varieties are possible. As a result, the Indian government has removed this therapy from COVID19 clinical management guidelines. Patients who require plasma therapy have a far better option in the form of monoclonal antibodies and antibody cocktail
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