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Measures needed for expeditious disposal of criminal appeals in which appellants are still in custody: Orissa High Court

The court has very rightly expressed its grave concerns pertaining to the inordinate delay in the disposal of the appeals. What is most pleasing to see is that the two-judge bench of the Orissa High Court has not dithered from holding all the stakeholders responsible for the delay in the disposal of the appeal which includes not just the state but also the judiciary.

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It is a matter of grave concern that the Orissa High Court in a latest, learned, landmark and laudable judgment titled Shyam Sundar Jena vs State of Orissa in JCRLA No. 73 of 2006 has expressed its mounting concern regarding the inordinate delay in disposal of the appeals. The Bench of Justice SK Mishra and Justice Savitri Ratho hoped that appropriate measures would be taken by the State of Odisha and the High Court of Orissa “for expeditious disposal of the Criminal Appeals in which the appellants are still in custody.” Very rightly so!

To start with, Justice SK Mishra who has authored this notable judgment for himself and Justice Savitri Ratho sets the ball rolling by first and foremost pointing out in para 1 that, “In this appeal, the appellant-convict, Shyam Sundar Jena, has assailed his conviction under Section 302 of the Indian Penal Code, 1860(hereinafter referred to as the “Penal Code” for brevity) and sentence of imprisonment for life and to pay a fine of Rs.1000/- (rupees one thousand), in default to pay the fine, to undergo rigorous imprisonment for one month, passed by learned Addl. Sessions Judge, Jajpur in S.T. Case No.660/2003 (arising out G.R. Case No.370/2003 of the court of learned S.D.J.M., Jajpur corresponding to Binjharpur P.S. Case No.50/2003).”

While stating in brief the prosecution case, the Bench then discloses in para 2 that, “Shorn of unnecessary details, the prosecution case in brief is that the deceased-Urmila had married the appellant-accused sometime in the year 1994. At the time of marriage, a sum of Rs.20,000/-, gold chain, ring etc., were given as per the demand made from the side of the appellant. After the marriage, the appellant further demanded a sum of Rs.10,000/- and he used to assault Urmila and force her to bring the said amount as dowry. The matter was settled on a number of occasions by the village gentries. It is alleged that on 7.7.2003 night the appellant forcibly opened the door of the room where Urmila had slept with her son. The appellant poured kerosene and set her on fire with a match stick. Thereafter Urmila screamed and her brother-in-law came. He abused and slapped the appellant. Urmila had sustained extensive burn injuries and implicated the appellant in the said manner before others who arrived at the spot. She was shifted to District Headquarters Hospital, Jajpur in a trekker. In the same night one Lalu Jena @ Babaji came and informed Ghanashyam(brother of Urmila) about the shifting of Urmila to the said Hospital. Thereafter after advice of the Doctor, Urmila was shifted to S.C.B. Medical College and Hospital, Cuttack.”

To be sure, the Bench then states in para 3 that, “On 10.4.2003 Ghanashyam submitted F.I.R. before the Officer-in-charge, Binjharpur Police Station. In pursuance of the F.I.R. lodged, one Basanta Kumar Jena, Officer-in-charge of Binjharpur P.S. rushed to S.C.B. Medical College and Hospital, Cuttack and found Urmila to have sustained extensive burn injuries on her body. He took steps for recording the dying declaration of Urmila and Urmila expired on 13.4.2003.”

To put things in perspective, the Bench then reveals in para 4 that, “During course of investigation, the Investigating Officer issued requisition for medical examination of the appellant and his son. He seized the wearing apparels of the deceased Urmila and a pillow. Sarat Kumar Nathasharma, S.I. of Police, Bijnjharpur P.S. (another Investigating Officer) took step for examination of those articles by the Director, State Forensic Science Laboratory, Rasulgarh. After completion of investigation, the Investigation Officer submitted charge sheet against the appellant.”

Quite significantly, the Bench then envisages in para 13 that, “In this case, the evidence of P.W.26- Nigamananda Panda, the Executive Magistrate, is of much importance. He has categorically stated on oath that he proceeded to the S.C.B. Medical College and Hospital on being directed by the Collector, Cuttack. He consulted Dr. P.K.Mallik-P.W.25, who informed the Magistrate that the deceased-Urmila is mentally and physically fit to give dying declaration. Thereafter the Executive Magistrate put questions to the deceased about her name, her father’s name, her native village, the marital village, her age and as to when her marriage was performed. The Magistrate further stated that she gave rational answers to the questions. Therefore, he was satisfied that the deceased was in fit state of mind. Thereafter, the Magistrate started questioning the deceased about the occurrence as to how she got the burn injuries and then recorded verbatim, the answer given by the deceased in his own hand. He read over the contents of the dying declaration recorded by him and had questioned the deceased if it was correctly written to which she had replied in affirmative. She was not in a position to append signature on the statement and her left hand palm was burnt. So he took the right hand thumb impression of the deceased on the statement, i.e. Ext.4. Though cross examined at length, in our opinion, no major contradiction has been pointed out by the defence. Though, it appears that there are some difference between the evidence of P.Ws.25 and 26 as to when the opinion of the Doctor was given, it is a very hyper technical argument, which cannot be given much weightage.”

Be it noted, the Bench then also makes it clear in para 15 that, “The submissions of the learned counsel for the appellant that the dying declaration is not in question answer form and hence it is not properly recorded are also of no value. The ratio laid down by the Hon’ble Supreme Court is that there is no format prescribed for recording of dying declaration and it depends on facts of each case whether the dying declaration has been properly recorded or not and whether it can be relied upon as the sole basis for conviction. We are of the opinion that the evidence of P.Ws.6,7,22,25 and 26 read together leaves no doubt in the mind of the Court that the dying declaration is true and voluntary and these five witnesses have not been cross examined to show that they have faulted while recording the declaration by P.W.26 or that these witnesses are not reliable. P.W.26, the Executive Magistrate recorded the dying declaration of the deceased on 10.4.2003 on the requisition made by P.W.22, the I.O., on being certified regarding the mental and physical fitness of the deceased-declarant by P.W.25 Dr. P.K.Mallik in presence of P.Ws.6 and 7, namely Pramila Jena and Prasant Kumar Parida, who are also signatories to the dying declaration. So in all fitness of things, we do not think this is a case where the dying declaration should be viewed with suspicious and the conviction should be over turned into a judgment of acquittal.”

Going forward, the Bench then also makes it clear further in para 16 that, “Moreover, this dying declaration has been relied upon by the learned Addl. Sessions Judge, who had the opportunity of observing the demeanor of the witnesses when he recorded the evidence of those witnesses. His subjective findings of reliability on P.Ws.6,7,22,25 and 26 should not be lightly brushed aside by the appellate court.”

It is worth noting that it is then observed in para 17 that, “The learned counsel for the appellant submitted that P.W.1 is the informant in this case. He has stated in the F.I.R. that on 09.4.2003 when the condition of her sister became better he could learn from her that the above mentioned accused (named in the FIR) has tortured her both physically and mentally and then put kerosene on her body and set her on fire. In the F.I.R. he referred the names of six accused persons including the present appellant. He has admitted in the cross examination that he has mentioned the name of the appellant along with five others of his family members, but he denied the suggestion that he has done it deliberately to harass the accused persons.”

What’s more, the Bench then says with consummate ease in para 18 that, “In our considered opinion this will not adversely effect the probative value of the dying declaration as admittedly P.W.1 was not present at time of recording of the dying declaration. Secondly, he had talked to the deceased on 10th and from whatever impression he has got he lodged the F.I.R. So it cannot be taken as a major lacuna in the prosecution evidence to throw out the dying declaration, which has been recorded by an Executive Magistrate, with a medical certificate regarding the mental and physical fitness of the declarant and which has been accepted as good evidence of the murder of the deceased by the learned Addl. Sessions Judge. In that view of the matter, we are not inclined to allow the appeal.”

Moving on, the Bench then notes in para 19 that, “The alternative submission that the appellant is in custody for more than 17 years and six months and, therefore, the sentence should be remitted to the period undergone. In the case of UNION OF INDIA VS. V.SRIHARAN ALIAS MURUGAN AND OTHERS (supra), the Hon’ble Supreme Court has held that the sentence of imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for rest of the life of the prisoner subject, however, to the right to claim remission etc. as provided under Articles 72 and 161 of the Constitution of India to be exercised by the President and the Governor of the State and also as provided under Section 432 of the Cr.P.C.”

While explaining the types of remissions, the Bench then observes in para 20 that, “As far as remissions are concerned, it consists of two types. One type of remission is what is earned by a prisoner under the Prison Rules or other relevant rules based on his/her good behaviour or such other stipulations prescribed therein. The other remission is the grant of it by the appropriate Government in exercise of its power under Section 432 of the Cr.P.C. Therefore, in the latter case when a remission of the substantive sentence is granted under Section 432 Cr.P.C., then and then only giving credit to the earned remission can take place and not otherwise. Similarly in the case of a life imprisonment, meaning thereby the entirety of one’s life, unless there is a commutation of such sentence for any specific period, there would be no scope to count the earned remission. In either case, it will again depend upon an answer to the second part of the first question based on the principles laid in Swamy Sraddananda (2) Vs. State of Karnataka; (2008) 13 SCC 767. The Hon’ble Supreme Court has further held that convict undergoing the life imprisonment can always apply to the authority concerned for obtaining remission either under Articles 72 or 161 of the Constitution or under Section 432 of the Cr.P.C. and the authority would be obliged to consider the same reasonably subject to the principles laid down in the case of Swamy Sraddananda (2) (supra). The right to apply and invoke the powers under these provisions does not mean that he can claim such benefit as a matter of right based on any arithmetical calculation. All that he can claim is a right that his case be considered. Ultimate decision whether remissions be granted or not is entirely left to the discretion of the authorities concerned, which discretion ought to be exercised in a manner known to law. The only right of the convict i.e. recognized is a right to apply to the competent authority and have his case considered in a fair and reasonable manner.”

For the sake of clarity, the Bench then elucidates in para 21 that, “We examined the notification issued by the State Government in this regard. The Government of Odisha in Law Department issued a notification bearing No.4817/L./IVJ.7/08(pt) Dt.5.5.10 regarding resolution of reconstituting the Board to review of sentence awarded to a prisoner and to recommend his premature release. The State Sentence Review Board has been constituted which is to meet at least once in a quarter at Bhubaneswar. The eligibility for premature release is quoted here in below:

“Every convicted prisoner whether male or female undergoing sentence of life imprisonment and covered by the provisions of Section 433A Cr.P.C. shall be eligible to be considered for premature release from the prison immediately after serving out the sentence of 14 years of actual imprisonment i.e. without the remissions.

It is, therefore, clarified that completion of 14 years in prison by itself would not entitle a convict to automatic release from the prison and the State Sentence Review Board shall have the discretion to release a convict at an appropriate time in all cases considering the circumstances in which the crime was committed and other relevant factors like;

(a) Whether the convict has lost his potential for committing crime considering his overall conduct in jail during the 14 years incarceration;

(b) The possibility of reclaiming the convict as a useful member of the society; and

(c) Socio-economic condition of the convicts family. Section 433A was enacted to deny premature release before completing 14 years of actual incarceration to such convicts as stand convicted of a capital offence.xxx””

For the sake of further clarification, the Bench then observes in para 22 that, “However, certain categories are mentioned in the said notification by way of the exceptions to the 14 years rule, in such cases, their cases shall be considered only after 20 years including remission. The period of incarceration inclusive of remission even in such cases should not exceed 25 years. These cases include cases of convicts imprisoned for life for murder with rape, murder with dacoity, murder involving an offence under the Protection of Civil Rights Act, murder of a child below 14 years of age, multiple murder, cases of gangsters, contract killers, smugglers and convicts whose sentence has been commuted to life imprisonment.”

As a corollary, it is then stated in para 23 that, “Thus, we are of the opinion that though the Courts do not have jurisdiction to pass an order for a remission of imprisonment of life to any other kind of sentence, but it is open for appellant to make an application to the proper authority in the State of Odisha, the Principal Secretary, Department of Home, Government of Odisha. So, we give liberty to the appellant to make an application to that effect to the concerned authority for remission of his sentence to the period already undergone. In this connection, the correctional authorities, more particularly the Prison Welfare Officer, shall render effective service to the appellant to make a proper representation before the proper authority designated by the State of Odisha. We also hope and trust that if any such application is made by the appellant, the authority shall take a decision as early as possible preferably within a period of sixty days of the receipt of the application regarding remission in terms of the principles laid down by the Hon’ble Supreme Court in the case of Swamy Sraddananda (2) (supra) and in the case of UNION OF INDIA VS. V.SRIHARAN ALIAS MURUGAN AND OTHERS (supra) and the notification issued by the State Government.”

While dwelling on the delay, the Bench then quite forthrightly states in para 24 that, “As regarding the delay in disposal of the appeal is concerned, we are constraint to observe that because of things or matters not in the hands of the judiciary, the appeals are being taken up at a belated stage for which we consider all the stake holders including the judiciary responsible for the same. But at the same time we do not say that judiciary is alone responsible for delay in disposal of the cases. We also rely upon the observations made by brother Hon’ble Shri Justice Sangam Kumar Sahoo in the case of Managobinda Mohapatra Vs. State of Odisha; (2020) 79 OCR 787 (Para-1) and in the case of Nitya @ Nityananda Behera Vs. State of Odisha; (2020) 80 OCR 89 (para-15).”

Now coming to the concluding paras. Para 25 states that, “With such observation, the JCRLA is dismissed.” Finally, para 26 then concludes this notable judgment on an optimistic note by observing that, “However, we hope and trust that appropriate measures should be taken by the State of Odisha and the High Court of Orissa for expeditious disposal of the Criminal Appeals in which the appellants are still in custody.”

On a concluding note, it must be said that the Orissa High Court has very rightly expressed its grave concerns pertaining to the inordinate delay in the disposal of the appeals. What is really most pleasing to see is that the two Judge Bench of Orissa High Court comprising of Justice SK Mishra and Justice Savitri Ratho have not dithered from holding all the stakeholders responsible for the delay in the disposal of the appeal which includes not just the State but the judiciary also even though it has conceded that judiciary alone is not responsible for the delay in the disposal of the cases.

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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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