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‘Persons’ not ‘possession’, ‘children’ not ‘commodities’, ‘girls’ not ‘goods’

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The present research paper aims at touching one of the most sensitized issues in the human society, that is, human trafficking. What is human trafficking? How is it done? Why humans are made victim to such a menace? What are the different forms of human trafficking? What are the causes and the impact of human trafficking on individuals and society? All the questions will be answered in this research paper. In addition to this, we will also talk about the international conventions and protocols such as – Palermo Protocols; UN Convention against Transnational Organized Crimes, 2000; Council of Europe Convention and EU Directives along with the role of UN High Commissioner for Refugees and International Labor Organization. We will also take a brief look at the Indian national legal framework relating to human trafficking like – Indian Penal Code, 1860; Immoral Traffic Prevention Act, 1956; Constitution of India; Information and Technology Act, 2000. After all this, we will go through the Anti – Trafficking Bill, 2018 which is currently in the Parliamentary Standing Committee for re-consideration. We will talk about the loopholes in the bill by closely critiquing it and answer the question, that is, what are the Victim Compensation and Witness Protection Schemes or are there even any, at subsequent stage. Besides, we will take a glance at some of the important and landmark cases and judgments which are adding to the development of human trafficking laws. At last, we will sum up our discussion by giving up some of the suggestions and recommendations that are needed to be taken into consideration in the upcoming Anti – Trafficking Legislations and also to eliminate this despicable evil from the lives of the individuals to make this world a better place for living.

KEYWORDS – Human Trafficking, international legal framework, cases, judgments, Anti – Trafficking Bill 2018, Palermo Protocols.

“People were created to be loved. Things were created to be used. The reason why the world is in chaos is because things are being loved and people are being used.”

-Unknown

These two lines are very well depicting the current situation of our human society. The people are not loved but used. They are being sold in the same manner as the commodities are sold. And, this is the reason why the world is in so much chaos. All the humans are born with certain rights. In the general parlance, we call those rights as human rights. Each and every person enjoys these rights by virtue of being human. And, it is the obligation of the people to respect each other’s rights. Here, the question arises is that are we really fulfilling our duty? Do we really respect the rights of other humans? Is this the kind of humanity that we are talking about these days? Why do we call ourselves as humans even? To answer all such questions, it is expedient to have an understanding about one of the organized crimes that leads to the grave violation of human rights, that is, human trafficking.

Before starting with the concept of human trafficking, let us first start quoting some facts and figures relating to the same to have an idea about the terrible situation across the globe. According to International Labor Organisation,

At any given time in 2016, an estimated 40.3 million people are in modern slavery, including 24.9 million in forced labor and 15.4 million in forced marriage.

It means there are 5.4 victims of modern slavery for every 1000 people in the world.

1 in 4 victims of modern slavery are children.

Out of the 24.9 million people trapped in forced labor, 16 million people are exploited in the private sector such as domestic work, construction or agriculture; 4.8 million persons in forced sexual exploitation, and 4 million persons in forced labor imposed by state authorities.

Women and girls are disproportionately affected by forced labor, accounting for 99% of victims in the commercial sex industry, and 58% in other sectors.

These figures are horrible and insane. But this is what it is! And, the dangerous thing is that these figures are increasing tremendously. This is high time that we should have stricter laws and legislations to combat this global issue of human trafficking.

WHAT IS HUMAN TRAFFICKING?

Merriam Webster Dictionary defines the word “human trafficking” as “an organized criminal activity in which human beings are treated as possessions to be controlled and exploited (as by being forced into prostitution or involuntary labor).” This definition gives us a very narrow understanding as it mainly talks about only two aspects of human trafficking – “prostitution” and “forced labor”. There are many more aspects which are related to human trafficking. All these aspects are defined by an international protocol, that is, Palermo Protocols.

Article 3(a) of Palermo Protocols defines, “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving of payments or benefits to achieve the consent of a person having control of another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.”

We can conclude the above definition by answering three major questions:

What is done?

The recruitment, transportation, transfer, harbor, or receipt of persons.

How is it done?

It is done by creating threat, use of force, coercion, abduction, deception, inducement of alluring payments.

Why is it done?

It is done for exploitative purposes like sexual activities, slavery, bonded labor, organ removal, forced marriage, child soldiers, and what not.

Human Trafficking refers to the trading of persons or quid pro quo of persons for illegal purposes. It is recognized as an organized crime and also known as modern-day slavery.

FORMS OF HUMAN TRAFFICKING

There are numerous ways by which people are trafficked and exploited to execute the heinous crime of human trafficking. Let us have a brief discussion about the same.

ORGAN HARVESTING

The trafficking in organs involves removing a part of the body, commonly kidneys and liver, for the purposes of illicit trading. The trading of organs is increasing day-by-day at international levels. In this techno-savvy world, as the technology for transplantation of organs is increasing, the organ trafficking is also rising up. A victim, either forcefully or freely, gives the consent for the organ removal because they are in the need of money, but are then cheated, or are paid less than the promised price.

FORCED MARRIAGE

Forced Marriage is when one person or both the persons are put under pressure to marry someone or to marry each other respectively against their will. The consent in such cases is obtained fraudulently or by undue influence or by coercion. Generally, the objective of forced marriage is either to take individual outside the country or to gain access in a country for some illegal purposes.

SENDING CHILDREN IN WARS

The one of the most vulnerable groups of human trafficking are children because it is easier to manipulate them. They do not have developed sense of danger and they can be easily recruited to the armed conflicts as soldiers. They may be used either for frontline combat by engaging them directly in the acts of violence or within auxiliary roles of informants. This type of practice is most prevalent in parts of Africa and Asia.

LABOUR EXPLOITATION

This refers to the situation where people are coerced to work, either voluntary or involuntary, in hazardous conditions. Due to lack of employment opportunities in their region, they tend to migrate from their inhabitant areas to the place of work. And, they are generally engaged in factories, mines, industries where they are not paid even minimum wages for their work. Moreover, they are not allowed to leave their workplace. This is one of the main reasons why illegal immigration is heading up. Debt Bondage and Child Labor form the parts of forced labor.

DRUG TRAFFICKING

Drug Trafficking refers to the cultivation, manufacturing, distribution and sale of the substances which are restricted by the Drug Prohibition Laws. Children are made soft targets to smuggle illegal drugs from one place to another.

SEX TRAFFICKING

Sex Trafficking is when an individual engages in a commercial sex act as a result of force, fraud or coercion. Sexual exploitation occurs in various settings including brothels for prostitution purposes, pimping, strip clubs, massage parlors, private homes, sex tourism, pornography, mail order brides or bride trafficking and many more. Women and Children are the most common victims of sex trafficking. LGBT identifying individuals, especially transgender, are increasingly found to be victim of sex trafficking.

SLAVERY

The word ‘slavery’ refers to the conditions where people are treated as the property of another person, household, company, corporation or government. This is the status of a person over whom ownership rights are exercised. Slaves are held against their will from the time of their capture, purchase, or birth, and are deprived of the right to leave, to refuse to work, or to receive compensation in return for their labor. Forced domestic servitude also forms the part of slavery where people are forced to work for long hours for little pay. They may also suffer physical and sexual abuse.

FORCED CRIMINALITY

This is when somebody is forced to carry out criminal activity through coercion or deception. It includes begging, pick-pocketing, bag snatching, ATM theft, selling of counterfeit goods and all. Mostly, children are exposed to the vulnerability of forced criminality.

These crimes are happening in every corner of the world and can include any person regardless of age, socio-economic background or location. Women, children and transgender are the most vulnerable groups exposed to human trafficking. As a result, each form can look very different. The statistics of these crimes are rising at an alarming level despite of having so many legislations, both at national and international levels, to combat this global issue.

HUMAN TRAFFICKING: CAUSES AND EFFECTS

To effectively understand the concept of human trafficking or modern slavery, we must first understand what causes it and how it affects those involved. The root cause of human trafficking is traffickers. But what attracts traffickers to do such type of crimes? The answer is simple. It is the vulnerability that creates opportunity for traffickers. Now, the major question arises that what are vulnerable conditions and actually who falls prey to such crimes?

The conditions are – poverty; unemployment; displacement due to wars, political instability, and natural disasters; lack of education and knowledge; poor and broken family conditions; social and cultural practices; inadequacy of proper legislations and law enforcement agencies. The vulnerable groups include women, children, and LGBTQ communities, undocumented migrant persons, poverty-stricken and downtrodden. It is easy to manipulate these people and traffickers are trained to identify vulnerability. That’s why; these people become the soft-targets of these heart-core traffickers.

The effects of human trafficking are too harsh to handle for the victims. It has the power to impact someone’s life forever. The consequences are not only limited to the extent of physical trauma but also comprise mental, psychological and sociological harms. The physical trauma includes sexually transmitted diseases, diabetes, cancer, injuries, infections, and other illnesses. A lack of proper medical care allows these conditions to spread and worsen often affecting an individual’s health permanently. It also has a severe impact on the mental health and social life of the victim, including, depression, stress, memory loss, anxiety, fear, guilt, shame, difficulty in relationships, isolation from the society and many more.

Not only victims, but the traffickers are too affected by the outcomes of human trafficking. The traffickers also experience trauma because of what they see and do to others, and many traffickers have been victimized themselves at some point in their lives.

INTERNATIONAL LEGAL FRAMEWORK

There are a number of laws and legislations that are adopted by international forums in order to combat the menace of human trafficking. Let us have a brief look about the major international legislations.

The United Nations Convention against Transnational Organized Crime (UNTOC), Adopted by General Assembly resolution 55/25 of 15 November 2000, is the main international instrument in the fight against transnational organized crime. The Convention is further supplemented by three Protocols, which target specific areas and manifestations of organized crime. Countries must become parties to the Convention itself before they can become parties to any of the Protocols. The three Protocols are as follows:

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2003), is the first global legally binding instrument with an agreed definition on trafficking in persons. Article 3(a) talks about the definition of trafficking in persons and Article 3(b) states that ‘consent’ becomes irrelevant when the child is below 18 years of age. Also, Article 5 tells us about the criminalization.

The Protocol against the Smuggling of Migrants by Land, Sea and Air (2004), deals with the growing problem of organized criminal groups to smuggle migrants, often at high risk to the migrants and at great profit for the offenders.

The Protocol against Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition (2005), is the first legally binding instrument on small arms and its purpose is to promote, facilitate and strengthen cooperation among State Parties in order to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition.

The Universal Declaration of Human Rights of 1948, which declares in Article 4 that “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”

The International Covenant on Civil and Political Rights of 1966, in Article 8 states that “(1) No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited. (2) No one shall be held in servitude. (3) No one shall be required to perform forced or compulsory labour.”

The Convention to Suppress the Slave Trade and Slavery of 1926, which states in Article 2 that the parties agreed “to prevent and suppress the slave trade and to progressively bring about the complete elimination of slavery in all its forms.”

The Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery of 1956, which states in Article 3(1) that “the act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto shall be a criminal offense under the laws of the States Parties to this Convention and persons convicted thereto shall be liable to very severe penalties.”

The Convention for the Suppression of the Traffic in Persons and of the Exploitation of Prostitution of Others of 1949. The Preamble to this Convention provided that “Whereas prostitution and the accompanying evil of traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community.” Article 17 thereof provides that States parties are required to “undertake, in connection with immigration and emigration, to adopt or maintain such measures ASE are required, in terms of their obligations under the present Convention, to check the traffic in persons of either sex for the purpose of prostitution.”

The Convention on the Elimination of All Forms of Discrimination against Women of 1979, which, in Article 6, calls upon States parties to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”

The Declaration on the Elimination of Violence against Women of 1993, which defines “violence against women” to include “rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution.”

The Convention on the Rights of the Child of 1989, which states that States parties must “take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.”

The Optional Protocol to the Convention on the Rights of the Child, on the Sale of Children, Child Prostitution, Child Pornography of 2000.

The Optional Protocol Stipulates, in Article 10, that States parties must “take all necessary steps to strengthen international cooperation by multinational, regional and bilateral agreements for the prevention, detection, investigation, prosecution and punishment of those responsible for acts involving the sale of children, child prostitution, child pornography and child sex tourism.”

The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict of 2000. The Optional Protocol requires States parties to ensure that “persons who have not attained the age of 18 years are not compulsory recruited into their armed forces.”

The ILO Convention No 182 on the Elimination of the Worst Forms of Child Labour of 1999, which provides in Article 3 “all forms of slavery or practices similar to slavery such as the sale and trafficking of children.”

The Convention on the Rights of All Migrant Workers and Members of their Families of 1990, which in Article 11 provides that “No migrant worker or member of his or her family shall be held in slavery or servitude or required to perform forced or compulsory labor.”

Despite of having numerous legislations at international level, the basic rights rather human rights are at abysmal. This should be the first priority, or we should say, this is the need of the hour to tackle the crisis of human trafficking.

HUMAN TRAFFICKING: INDIAN LEGAL FRAMEWORK

After having a discussion about international legal framework relating to human trafficking, it becomes important to talk about the Indian laws and legislations as well. India has recognized human trafficking as one of the major issues and to control the same, it has enacted various laws. Let us take a glance at these laws.

Constitution of India guarantees certain fundamental rights to its citizens and it is the duty of the State to protect these rights. According to Article 23(1), “trafficking of human beings and beggar and other similar practices are punishable offence under the law.” In the similar manner, Article 24 “prohibits employment of children below 14 years of age in factories, mines, or other hazardous employment.” “Right to Life and Personal Liberty” guaranteed by Article 21 is also infringed because of human trafficking.

Indian Penal Code, 1860 has around 25 provisions which talk about trafficking and made it a punishable offence. The significant provisions Section 370 and Section 370A provide for comprehensive measures to combat the organized crime. It also includes trafficking of children for exploitation in any form – physical, sexual, slavery, servitude, or the forced removal of organs.

The Immoral Traffic (Prevention) Act, 1956 is the primary legislation related to the commercial sexual exploitation of children, women and girls, but it does not define trafficking. Keeping a brothel or allowing premises to be used as a brothel or prostitution in the vicinity of the public places are some of the offences specified in ITPA, 1956. Also, Section 372 and Section 373 deals with the selling and buying of girls for the purpose of prostitution.

Information Technology Act, 2000 penalizes the publication or transmission of inappropriate or lascivious material in electronic form which depicts children in sexual explicit act or pornography. Section 67A and Section 68B are the relevant sections to discuss when we talk about human trafficking.

As per Section 2(14) (ii) and (ix) of Juvenile Justice (Care and Protection of Children) Act, 2015 talks about children who are found working in contravention of labour laws for the time being in force or is found begging, or living on the street and who is found vulnerable and is likely to be induced into drug abuse or trafficking is included as a “child in need of care and protection”, among others.

Protection of Children from Sexual Offences (POCSO) Act, 2012 is a special law to protect children from sexual abuse and exploitation. It also provides various precise definitions of sexual abuse, penetrative and non-penetrative sexual assault, sexual harassment and all.

Child Labour (Prohibition and Regulation) Act, 1986 defines a child as a person who has not completed the age of 14 years. The Act provides the provisions to regulate the working hours and working conditions of the child workers and also protects them from being employed in hazardous industries.

The other important legislations related to trafficking in persons are – Prohibition of Child Marriage Act, 2006; Bonded Labour System (Abolition) Act, 1976; Transplantation of Human Organs Act, 1994.

Apart from all these legislations, different State Governments have also enacted the laws in order to deal with this issue. The Punjab Prevention of Human Smuggling Act, 2012; Karnataka Devadasi (Prohibition of Dedication) Act, 1982; Goa Children’s Act, 2003; Andhra Pradesh Devadasi (Prohibiting Dedication) Act, 1989 are some of the major State legislations.

From time-to-time, India has enacted various legislations to handle the rising rates of human trafficking and also to obligate with the international instruments. But are these laws enough? Yes, these laws are sufficient from the perspective of working independently. Then, why these laws are not capable of tackling the rising number of human trafficking in India? If we talk about the figures, then, according to National Crime Records Bureau, 8132 human trafficking cases were reported in India in 2016 under the Indian Penal Code, 1860. In the same year, 23117 trafficking victims were rescued. Of these, the highest number of persons were trafficked for forced labour (45.5%), followed by prostitution (21.5%). Thus, there is a need to have a comprehensive legislation that can constitute all forms of human trafficking. Consequently, after identifying gaps in the existing legislations, the Anti-Trafficking Bill was introduced in Lok Sabha by the Minister of Women and Child Development, Ms. Maneka Gandhi in July, 2018. Currently, the Bill is in the Parliamentary Standing Committee for revision. Let us take a look at the critical analysis of the bill.

THE ANTI-TRAFFICKING BILL: A CRITICAL APPRAISAL

The Anti-Trafficking Bill, 2018 or Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 is a well-organized bill which provides for the investigation of trafficking cases, and prevention, rescue and rehabilitation of trafficked victims.

Key highlights of the Anti-Trafficking Bill

The Bill clearly sets out the definition of “trafficking in persons” and specifies all the offences as “cognizable and non-bailable.” Also, the Bill states that its provisions must be read in consonance with other laws and its provisions will only apply in the case of any inconsistency. The main highlights of the Bill are as follows:

The Bill includes trafficking for various purposes – sexual exploitation, slavery, forced removal of organs. In addition, the Bill considers trafficking for certain purposes such as begging, inducing early sexual maturity, forced labour, bearing children as an “aggravated” form of trafficking, which attracts a higher punishment.

In order to punish the traffickers, the Bill provides for the establishment of “investigation authorities or Anti-Trafficking Units and rehabilitation authorities” at “district, state and national levels.” Further, may be, “protection homes and rehabilitation homes” establishes for the long-term care and rehabilitation to the victims of trafficking.

The Bill provides for the “preventive measures” to be taken by “district and state anti-trafficking committees” to protect and prevent vulnerable persons from being trafficked. These measures include – facilitating implementation of livelihood and educational programmes for vulnerable communities, various government programmes and schemes, and developing law and order framework to ensure prevention of trafficking.

The Bill also provides for the setting up “designated courts” in each district for the complete trial of trafficking cases within a year.

While the victims of the offence are provided with “immunity” this immunity extends to only those crimes that are punishable with imprisonment of 10 years or more and not for lesser offences.

The Bill “penalizes an owner or lessor of a premise” as if he is presumed to have knowledge about the trafficking carried out on the premise, along with the traffickers.

The Bill also “punishes a person who distribute or publish material” which may be used for the purpose of trafficking.

The Bill sets out the “higher penalties” for the various offences related to trafficking as compared to the punishments given in the prevailing laws.

Besides all these provisions, the Bill is not perfect and still having certain lacunae which needs to be fulfilled. Let us have a glance at the criticisms of the Bill to understand it more effectively.

Criticisms of the Anti-Trafficking Bill

The Anti-Trafficking Bill, 2018 is a good initiative by the government to condemn the offence of human trafficking. But like every other law, it is also having some gaps. These gaps must be removed to bring this Bill effectively into existence. The criticisms of the Bill are as follows:

Firstly, the Bill gives “no clarity” as to what will happen to the existing laws. This Bill states that it is not a replacement to the existing laws but it adds to the wide range of existing legal framework which deals with various aspects of trafficking in their own way. This will lead to the overlapping in the laws regarding their enforcement and rehabilitation procedures.

Secondly, the “assumption” that owner must be having the prior knowledge regarding the use of his/her premise for illicit purposes is a departure from the standard principle in criminal law where the guilt of the accused has to be proved and not presumed.

Thirdly, the Bill does not specify the criteria of differentiation between “aggravated and non-aggravated” forms of trafficking. It does not tell why other forms of trafficking will not fall in the aggravated category.

Fourthly, what about the “transgender” being vulnerable community. The preamble of the Bill recognizes women and children as vulnerable but it does not even talk about transgender. It is a great lacuna.

Fifthly, the Bill does not mention the word “sex-buyers.” Why the Bill does not set the liability for the sex-buyers? Everyone in the chain of trafficking must be liable.

Sixthly, the “budgets” are not earmarked for the purposes of establishing rehabilitation centers and shelter homes.

Seventhly, the process of “rehabilitation” is very limited. No heed is paid to the fact that there should be individualized exit strategies for the victims to recover from the trauma of trafficking.

Lastly, the “victim immunity and witness protection schemes” are absent. No assurance is given to the victims and witnesses that no actions will be taken against them if they will speak up. Further, the immunity will be given only to those persons who will be trafficked for serious crimes. But the trafficked victims who commit petty offences under coercion will not be able to claim immunity.

These are some of the major lacunae which must be taken into consideration by the law enforcing agencies before the Bill comes into effect.

LANDMARK CASES AND JUDGMENTS

The Supreme Court and various other High Courts stepped in and taking up the cases for proper functioning and monitoring of the institutional machinery, statutory agencies and victims rehabilitation schemes. The Court while exercising its jurisdiction for enforcement of fundamental rights has given various landmark judgments for the strengthening government response in combating trafficking. Some of the various proactive landmark judgments are as follows:

Vishal Jeet v. Union of India

FACTS – A writ petition under Article 32 of the Indian Constitution was filed by way of Public Interest Litigation before the Supreme Court. It seeks issuance of certain directions – (i) to look into issues of Red Light areas and forced prostitution from a law enforcement perspective; (ii) to rescue victims of commercial sexual exploitation and provide them with proper rehabilitation facilities so as to enable them to choose a more dignified way of life; (iii) to look into issues pertaining to dedication of young girls as Devadasi and Jogin.

JUDGMENT – The Supreme Court held that this matter is of great importance and stated that this malady is not only social but also a socio-economic problem and, therefore, the measures to be taken in that regard should be more preventive rather than punitive. Considering all aspects of matter before it, the SC issued the following directions to Central and State Governments – (i) direct concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution; (ii) take steps in providing adequate and rehabilitative homes; (iii) set up Advisory Committee consisting of relevant government officials and voluntary organizations to make suggestions for eradicating child prostitution and the Devadasi and Jogin tradition and measures for rehabilitation of victims.

Gaurav Jain v. Union of India

FACTS – The petitioner filed writ petition under Article 32 of Indian Constitution by way of Public Interest Litigation before the Supreme Court of India, based on an article “A Red Light Trap: Society gives no chance to prostitutes’ offspring” published in the magazine ‘India Today’. In the petition, the petitioner has asked for the establishment of separate educational institutions for the children of prostitutes and, seeking a declaration that prostitutes in India have – (i) the right to be free citizens, (ii) the right not to be trapped again, (iii) the right of readjustment by economic empowerment, social justice, self-sustenance, equality of status, dignity of person in truth and reality and social integration.

JUDGMENT – Considering all the facts regarding the matter, the Supreme Court did not accept the plea for separate educational institutions for children of prostitutes as it would not be in the interest of the children and society at large. Further, the Supreme Court quoted the Fundamental Rights of Women and Children from the Constitution of India (namely, Articles 14, 15, 16, 21, 23, 24, 38, 39, 45, and 46) and relevant International Instruments. Also, the SC constituted a Committee directing it to frame a National Plan of Action and to implement it in mission mode. This is to be noted that SC in its whole judgment used the term fallen women for prostitutes.

In Kamaljit v. State of NCT of Delhi 2006, the court in its order stated that sexual exploitation of women and children had not delivered the desired results and more stringent measures were the crying need of the day. Thus, the court emphasized on the point that trafficking is an organized crime and more serious measures are required to condemn it.

The Bombay High Court, in its recent judgment, held that there is no provision under the law which makes prostitution per se a criminal offence. It orders the release of three women sex workers detained at a State corrective institution in Mumbai. It observes that an adult woman had the right to choose her vocation. However, seducing any person for the purpose of prostitution or running a brothel is illegal.

These are only some of the landmark Indian cases which prepared a roadmap for the development of laws regarding human trafficking. There are a plethora of landmark cases relating to human trafficking. The Supreme Court and various other High Courts of India have time-to-time decided many cases and are still trying to develop some rigid measures to stop this brutal practice.

Let us also quote one recent judgment relating to human trafficking by the UK Supreme Court.

MS (Pakistan) v. Secretary of State for the Home Department

FACTS – The Appellant, MS, is a Pakistani national who entered the UK in 2011 at the age of 16 years on a visitor’s visa. During the four preceding years, while still in Pakistan, he had been subjected to forced labour and physical abuse by relatives. One of them, his step-grandmother, brought him to the UK by deceiving him into thinking this was for the purpose of his education. On arrival, he was forced to work for no pay, as arranged by his step-grandmother for her own financial gain. He then moved from job to job for the next 15 months, under the control and compulsion of adults, as both the First-tier Tribunal (FTT) and the Upper Tribunal (UT) later found.

In September 2012, the Appellant came to the attention of the police, who referred him to a local authority Social Services Department. They, in turn, referred him to the National Referral Mechanism (NRM), due to concerns as to his vulnerability and the possibility that he had been trafficked. However, in February 2013, the NRM decided that there was no reason to believe that he was a victim of trafficking. The Appellant sought judicial review of this decision in April 2013.

In September 2012, the Appellant had also claimed asylum, but that application was rejected in August 2013. The Secretary of State, therefore, decided to remove the Appellant from the UK. The Appellant appealed this decision on asylum and human rights grounds to the FTT who dismissed his appeal. The UT granted permission to appeal and re-made the decision in view of errors of law by the FTT, finding in favour of the Appellant. In addressing NRM’s decision, the UT observed it to be contrary to the Article 4 of European Convention on Human Rights.

The Respondent appealed to the Court of Appeal, which allowed the appeal for the AS (Afghanistan) v. Secretary of State for the Home Department, the UT could only go behind the NRM’s decision and re-determine the factual issues as to trafficking if the decision was perverse or irrational or one which was not open to the NRM.

The Appellant was granted leave to appeal to the Supreme Court. He later wished to withdraw from the proceedings, as his immigration problems had now been resolved. A preliminary issue therefore arose as to whether the Equality and Human Rights Commission (EHRC), which had applied to intervene in the proceedings, could take over the appeal.

JUDGMENT – The Supreme Court on unanimously allows the appeal. Lady Hale gives the only judgment, with which Lord Kerr, Lady Black, Lord Lloyd-Jones and Lord Briggs agree. The Supreme Court held that the immigration tribunals can make their own findings of facts and they are not bound by the Home Office. Therefore, the appeal is allowed and the UT’s decision is restored.

This was the instance of the UK Supreme Court in the judgment dated March 18, 2020 regarding human trafficking.

WHAT IS THE WAY FORWARD?

For tackling this major problem, we have to contribute at individual, societal, national and international level to make a great change. Therefore, few suggestions and recommendations to prevent and protect the vulnerable groups and to improve the conditions of trafficked victims are as follows:

First things first, the “implementation of laws” must be strictly done. The enforcement agencies and personnel should be trained to deal with the issue of human trafficking.

The “individualized rehabilitation strategies” for the victims of trafficking must properly planned. The government must ensure a good and healthy environment for the victims in the rehab centers and shelter homes, so that, victims can cope up with the situation and can start their life from a new perspective.

The “awareness campaigns” regarding human trafficking must be initiated at a massive level. The people must be made aware to protect themselves from being trapped in the circles of trafficking.

The people must be provided with “job opportunities” to reduce the trafficking of migrant workers. If they will be given better economic opportunities in their areas, then the chances are high that we can combat trafficking of migrant persons.

“Good governance and transparency” must be a prior commitment to prevent human trafficking.

Apart from these suggestions, the major requirement is to cut down the source or the roots of human trafficking at the ground level, i.e., rural areas. The people must be given reasonable social, economic and educational opportunities to prevent themselves from the clutches of traffickers. The government should take immediate and strict actions regarding this huge problem. This should be the need of the hour.

CONCLUSION

After having a very lengthy discussion on the issue that should be the priority to be tackled, we have come to an end of the same. As we have seen what human trafficking is and who are the vulnerable groups that are most likely to fall prey to the traffickers, it varies from country to country. People in precarious situations are looking out for their needs and in the desperation of the same; they end up falling in the hands of traffickers. We see this exploitation happening in various different forms – forced labour, slavery, servitude, prostitution, engaging children in wars, and many more. This leads to the severe physical, mental and emotional health conditions of the victims of human trafficking. It is evident from the discussion that we have a robust legal framework both at national and international levels. But, because of negligent, corruptive and non-serious nature of our law enforcement agencies, human trafficking has become a hidden crime. Due to the lack of victim-centric justice and witness incentivizing schemes, the victims are afraid of coming out. The safety of the public and victims is a paramount need. Not only the government and law implementing bodies, but also the society at large must have to take drastic steps to condemn this global issue. Despite of the fact that “Right to Life and Personal Liberty” are fundamental human rights, the status of “human” has fallen no more to that of a “commodity.” These human rights are inalienable and natural rights that call for a duty to be preserved and not infringed.

STOLEN PEOPLE, STOLEN DREAMS! END THE MISERY, STOP TRAFFICKING!

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Policy & Politics

Mera Aadhar, Meri Pehchaan: Privacy and security concerns

Ritansha Laxmi

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Privacy, a right essential to sovereignty of an individual and also the protection of human dignity.1 Privacy authorizes individual to make barriers around and to manage boundaries, protecting themselves from unwarranted interference in the lives, and allows people to be who they are exactly and the way they would like to interact with the world around them. Privacy helps people to create boundaries around them to restrict who has access to their body, places and things, as well as the communications and information. And State being the duty bearers for the protection of privacy.2 Therefore, the role of the state is to strike a balance between freedom and protection, rights and responsibilities. In 2001 a meeting of ministers headed by

L.K. Advani presented its report in May and acknowledged proposal for an id card, Aadhaar an identification card having 12- digit number.3 It was then issued by the government of India to each individual residing in the country. However, it has come across some privacy issues from different sections of society. Issuance of unique identification number with an aim to provide its every individual with different schemes like gas subsidy, MGNREGA, Jan Dhan yojna like benefits but it clubbed with breaching the privacy of an individual, moreover the informational privacy of the people.4 This article attempts to explore the security and privacy concerns from the perspective of people, legal and Government on Mera Aadhar, meri pehchan thereby trying to settle whether there is an infringement of the privacy or not?

AADHAAR, A BRIEF INTRODUCTION:

The conception of idea about Aadhar card came into existence in 2004 with the amendment of citizenship act by the then ruling Indian National Congress (INC) led UPA government to make a way for the National Population Register (NPR)5, a database record of all the residents of India preserved by the Census Commissioner of India and Register General. With the administrative approval for the project, Unique ID for Below Poverty Line (BPL) families by the ministry of Communication and Information Technology, the first work regarding issuing Unique IDs to BPL residents of India truly started in the year, 2008.6 It saw the amalgamation of National Population Register (NPR) under the Citizenship Act, 1955 with the UID project to comprehend Aadhaar card.7 While discussing the legal viewpoint, some jurists in their verdicts have dealt with diverse facets of privacy with regards to Aadhar and its linking, concerning the security and privacy threats.8 The judgments concerning privacy issues would be going to help as a brick for development of the idea of protection of privacy for the people of India. With these judgements and recommendations, the safe, secure, socially and politically justified legal framework can be created protecting privacy.

The perspective according to government is that it contends that the fundamental right status does not make privacy the absolute right and hence is archaic by other major apprehensions of the nation state that is to say national security of its people, frauds and fake registrations of people.

The Supreme Court in its judgment of K.s Puttaswamy9 has overruled verdicts given in the Kharak Singh case and the M.P. Sharma case, both of which said that the right to privacy is not protected under the constitution of India. On 27 March 2017, the supreme Court directed that Aadhaar card mandatory for availing benefits under welfare schemes and it cannot be done without aadhaar number. Though government tried to check every possibility of making it compulsory for other purposes such as income tax filings, bank accounts, sim card purpose etc. In April 2017, a constitution Bench of the supreme court taking into consideration the legality of Aadhar on the ground of right to privacy. A nine-judge bench of the Supreme Court has given verdict that citizens of India enjoy a fundamental right to privacy that it is intrinsic to life and liberty and covered under Article 21 of the constitution of India.10 Regarding privacy issue the Supreme court directed concerned government authorities not to share personal information of Aadhar card holders with any private or unauthorized sources.

Analysing the judgement of Justice K.S. Puttaswamy (Retd) vs Union of India and Ors., 2017 & 2018 pertaining privacy issues:

In the year 2017, a nine-judge bench of the Supreme Court of India in Justice K.S. Puttaswamy vs Union of India11 passed a landmark judgment upholding the constitutional right to privacy. It acknowledged privacy, an essential component of the Constitution of India under Part III of it, which lays down the fundamental rights, ranging from rights concerning to equality, freedom of speech and expression, freedom of movement, protection of life and personal liberty etc. These rights which are fundamental in nature cannot be given or taken away by law, and all laws and administrative actions must stand by these fundamental rights. The Supreme Court proclaimed that the government must cautiously balance individual privacy and the legitimate concerns of the state, even if national security is at stake. The Court also declared that any incursion on privacy must satisfy the triple test, established i.e.,

1. Need12, legitimate state concern is necessary. The law should seek to achieve a legitimate aim of the state.

2. Proportionality13, in least invasive manner. There should be a balanced relationship between the objects and the means adopted to achieve them. The degree of interference must be proportional to the need and;

3. Legality14, backed by law. The existence of a Law.

The judgement of K.s Puttaswamy which has been signed by all nine judges, holds: The decision in M P Sharma15 and Kharak Singh16 both stands over-ruled and uphold that the right to privacy considered as an intrinsic part of the right to life & personal liberty under Article 21, Part III of the Constitution of India. This verdict has re-shaped the domain of fundamental rights in the constitutional history of India. It has given the government of India an opportunity to re-think its data protection mechanism, both in light of individual privacy and the welfares of the state.

While analysing the “Justice KS Puttaswamy (Retd) and Another versus Union of India and Others,2018” also called as Aadhaar judgement17, and applying the above triple test proposed in previous judgement to the Aadhar scheme, A five-judge constitution bench test the validity of Aadhaar from the aspect of privacy as a Fundamental Right held that Aadhaar would remain obligatory for filing of Income Tax returns(ITR) and applying for allotment of Permanent Account Number (PAN), and it would not be mandatory to link Aadhaar to bank accounts and the telecom service providers cannot demand for Aadhar number for the purpose of its linking for mobile connections.18

The judges of supreme court in this case also held that there is a need to introduce a data protection regime in India. The Judges conferred the right to privacy with respect to the protection of informational privacy and the right to preserve individual reputation.19 Also held that privacy is one of the most important rights to be protected both against both State and non- State actors and be recognized as a fundamental right subjected to some restrictions like national security. Also, the decision makes it clear that the Indian Government is now concerned to establish an online data protection regime for the protection of the privacy of every people which is need of the hour and also as India is lagging behind in online data privacy regime i.e., proper laws and regulations regarding collection, preservation, and compliance of personal data and related enforcement mechanisms.

The population who are being asked to link their personal documents, identity and information to their Aadhar Card have to decide between two conflicting options of Advantages to the Society in general of which they are a part, and loss of their personal privacy. It is considered as a trade-off without monetary benefits.

CONCLUSION

It is well known fact that India does not have a law on privacy till now. In fact, then chairman of UIDAI, Nandan Nilekani, penned to the Prime Minister in May 2010 recommending the need of a data protection and privacy law in India.20 Therefore, the privacy bill should be the primary action towards the issues of breach in privacy. Correspondingly, people should be educated on the risk involved with ID thefts and fraud happening in digital world. IT laws should be strengthened and the liability should be bounded on companies handling data to escape the mishap from data mishandling. Some of the recommendations which I believe is important are, First, Aadhar should focus and incorporate privacy by design itself, the technology and process towards collecting privet information should be protected parallelly. Second, there is a need of collecting minimum set of data that would be sufficient from residents, like name, age, address of resident and thumb impression. Third, Prohibiting the extensive use of Aadhar number for every authentication or Proof of document. Use of Aadhar number should be only for required purpose like linking with direct subsidy and welfare schemes from central or state government example: Gas subsidy, BPL subsidy schemes etc.

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Policy & Politics

Private sector to play prominent role leveraging technologies like 5G and satellite communication

Speaking at the conference, P. Balaji Summit Co-Chairman and Chief Regulatory & Corporate Affairs Officer, Vodafone India said that with 5G on the anvil, IoT and AI will unleash the next digital revolution helping India meet our trillion dollar digital economy goal in the coming years.Private sector to play prominent role leveraging technologies like 5G and Satellite communication to help in reaching the hinterland more effectively and efficiently said by Guest of Honour, Alok Chaturvedi, CEO, CSC Wi-Fi Choupal Service India Pvt. Ltd, MeiTY, GoI. He mentioned that today there are about 3.76 lakh CSC centres in the country covering all Gram Panchayats and important villages run by a village level entrepreneur, a change agent, who could be an individual or an organization promoting rural entrepreneurship and rural employment opportunities. He opined, government has to ensure that quality broadband internet services are availing to the residents in Gram Panchayats and Villages.

Umang Das, Summit Chairman and Chairman, Foreign Investors India Forum in his address said that Govt and the private sector to weave an unpreceded wave of digitisation that will drive Industry 4.0 and significantly improve the day-to-day lives of a billion Indians. The telecom sector is at of the cusp of transformation and Indian tech companies can attract global investors who’ve burnt their hands in Chinese tech companies added by Mr Das.

Peeyush Vaish, Partner & Telecom Leader, Deloitte India in theme introduction mentioned that Convergence amongst the telecom ecosystem with the power of technology will pave the way for bridging the urban−rural divide across sectors, including banking, healthcare and education.

CII -Deloitte paper launched, called “Digital Reset – Touching a billion Indians” aptly highlights the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise business and easing the lives of the common man.

In his address, Amit Marwah, Head of Marketing and Corporate Affairs, Nokia India said, 5G will be a huge leap towards a connected digital society adding value beyond connectivity to economy as well as deliver social impact. He also said that the government, regulators and the telecom industry in India need to collaborate on initiatives that will facilitate faster 5G roll-out and adoption, to accelerate socio-economic growth.

Speaking at the conference, P Balaji Summit Co-Chairman and Chief Regulatory & Corporate Affairs Officer, Vodafone India said that with 5G on the anvil, IoT and AI will unleash the next digital revolution helping India meet our trillion dollar digital economy goal in the coming years. The telecom sector and our network warriors have catalysed the economy in the last 18 months and has fast-tracked digital adoption at an unprecedented scale, both at individual and organizational level and provided a robust platform for the digital society enabling Healthcare, Education, e-Commerce, Fintech and Manufacturing to deliver services to consumers and enterprises highlighted by Mr Balaji.

Space open for Industry further would excite everyone for the future growth translate the potential of IoT into tangible benefits on the ground said by Dr Rishi M Bhatnagar, President, Aeries communications India in his address. IoT projects through solutions would meet various end uses such as improving supply chain efficiency, enhancing customer experience, tracking and monitoring assets, improving logistics and empowering smart cities through a bouquet of solutions added by Dr Bhatnagar.

Peeyush Vaish, Partner & Telecom Leader, Deloitte India in theme introduction mentioned that “ Convergence amongst the telecom ecosystem with the power of technology will pave the way for bridging the urban−rural divide across sectors, including banking, healthcare, and education. CII-Deloitte paper report launched, called “Digital Reset – Touching a billion Indians” aptly highlights the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise business and easing the lives of the common man.

As the industry transcends from ‘digital-first’ to ‘digital-throughout’, technology will play a critical role in creating a ubiquitous presence amongst consumers and diversify revenue streams for enterprises moving “beyond connectivity” built strategically with the strong support and commitment from the GOI towards sustainable growth of the nation”. said by Mr Vaish.

The virtual summit aimed to provide a platform for telecom players to discuss the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise. The conference saw speakers from Quadgen, Ericsson,COAI, Bharti Airtel and others.The summit was attended by over 175 participants

Tarun Nangia

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Private sector to play prominent role leveraging technologies like 5G and Satellite communication to help in reaching the hinterland more effectively and efficiently said by Guest of Honour, Alok Chaturvedi, CEO, CSC Wi-Fi Choupal Service India Pvt. Ltd, MeiTY, GoI. He mentioned that today there are about 3.76 lakh CSC centres in the country covering all Gram Panchayats and important villages run by a village level entrepreneur, a change agent, who could be an individual or an organization promoting rural entrepreneurship and rural employment opportunities. He opined, government has to ensure that quality broadband internet services are availing to the residents in Gram Panchayats and Villages.

Umang Das, Summit Chairman and Chairman, Foreign Investors India Forum in his address said that Govt and the private sector to weave an unpreceded wave of digitisation that will drive Industry 4.0 and significantly improve the day-to-day lives of a billion Indians. The telecom sector is at of the cusp of transformation and Indian tech companies can attract global investors who’ve burnt their hands in Chinese tech companies added by Mr Das.

Peeyush Vaish, Partner & Telecom Leader, Deloitte India in theme introduction mentioned that Convergence amongst the telecom ecosystem with the power of technology will pave the way for bridging the urban−rural divide across sectors, including banking, healthcare and education.

CII -Deloitte paper launched, called “Digital Reset – Touching a billion Indians” aptly highlights the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise business and easing the lives of the common man.

In his address, Amit Marwah, Head of Marketing and Corporate Affairs, Nokia India said, 5G will be a huge leap towards a connected digital society adding value beyond connectivity to economy as well as deliver social impact. He also said that the government, regulators and the telecom industry in India need to collaborate on initiatives that will facilitate faster 5G roll-out and adoption, to accelerate socio-economic growth.

Speaking at the conference, P Balaji Summit Co-Chairman and Chief Regulatory & Corporate Affairs Officer, Vodafone India said that with 5G on the anvil, IoT and AI will unleash the next digital revolution helping India meet our trillion dollar digital economy goal in the coming years. The telecom sector and our network warriors have catalysed the economy in the last 18 months and has fast-tracked digital adoption at an unprecedented scale, both at individual and organizational level and provided a robust platform for the digital society enabling Healthcare, Education, e-Commerce, Fintech and Manufacturing to deliver services to consumers and enterprises highlighted by Mr Balaji.

Space open for Industry further would excite everyone for the future growth translate the potential of IoT into tangible benefits on the ground said by Dr Rishi M Bhatnagar, President, Aeries communications India in his address. IoT projects through solutions would meet various end uses such as improving supply chain efficiency, enhancing customer experience, tracking and monitoring assets, improving logistics and empowering smart cities through a bouquet of solutions added by Dr Bhatnagar.

Peeyush Vaish, Partner & Telecom Leader, Deloitte India in theme introduction mentioned that “ Convergence amongst the telecom ecosystem with the power of technology will pave the way for bridging the urban−rural divide across sectors, including banking, healthcare, and education. CII-Deloitte paper report launched, called “Digital Reset – Touching a billion Indians” aptly highlights the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise business and easing the lives of the common man.

As the industry transcends from ‘digital-first’ to ‘digital-throughout’, technology will play a critical role in creating a ubiquitous presence amongst consumers and diversify revenue streams for enterprises moving “beyond connectivity” built strategically with the strong support and commitment from the GOI towards sustainable growth of the nation”. said by Mr Vaish.

The virtual summit aimed to provide a platform for telecom players to discuss the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise. The conference saw speakers from Quadgen, Ericsson,COAI, Bharti Airtel and others.The summit was attended by over 175 participants

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Policy & Politics

Key legal challenges associated with artificial intelligence in India

Naina Pachnanda

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INTRODUCTION

Artificial Intelligence (hereinafter referred to as “AI”) and related technologies are crucial to the business ecosystem and are permeating into every sector. As AI gains more control over common subjects and services, it is bound to become potentially unpredictable and cause harm. While research on AI is being conducted all over the world, there are certain potential legal questions raised when it comes to the usage of AI. These range from criminal liability to data privacy concerns. This article addresses some of the key legal issues that crop up with respect to AI, across different sectors, as with an exciting new generation of AI solutions being developed it is essential that the same is regulated by a legal framework which allows AI to make the best possible impact in the economy.

In the event that there exists no legal definition for Artificial Intelligence, for the purpose of this article, Artificial Intelligence is defined as “a constellation of technologies that enable machines to act with higher levels of intelligence and emulate the human capabilities of sense, comprehend and act.”

Before one aims to pin point issues that arise with respect to an AI technology and attribute any liability to an AI technology, it is essential to determine the nature of the AI’s existence. This becomes important as the attribution of any liability would be based on the status granted to the AI in the country. To ensure their accountability under the law, AI entities could be treated as legal personalities, like corporations. Corporate liability of an individual was limited to motivate people to engage in commercial activities through corporations. The same principle could be extended to AI entities. This enables a number of advantages to the existing legal system to tackle upcoming challenges by AI without the need to make drastic changes in the legal system, to effectively solve AI related problems as AI developers are largely concerned about the liability arising from its actions.

KEY LEGAL

CHALLENGES

As mentioned above, assuming that an AI technology is given the status of legal personhood, in India, principles of tort law may be applied, in case of default by the AI technology. When an AI software is defective or use of such software injures the party using the software, it results in legal proceedings under the tort principle of negligence. In the case of AI, the software developer/programmer owes a duty of care to the customer/user. It is of course difficult to decide on the standard of care to be owed to the customer/user. The kind of software being implemented might assist in deciding the standard of duty of care that may be attributed to the software developer/programmer. For instance, if the system involved amounts to an “expert system” the befitting standard of care that would be that of an expert or a professional. Similarly, we could reason that if a person can be held liable for the wrongdoing of a human helper, the recipient of such support could be equally liable if they outsource their duties to a non-human helper instead, considering that such delegation is equally advantageous to them. The policy contention is quite compelling that using the assistance of a self-learning and autonomous machine should not be treated any differently from employing a human auxiliary, if such assistance leads to the harm of a third party . However, to hold the principal liable for the wrongdoing of another, it may be challenging to determine the standard against which the operations of non-human helpers will be assessed in order to emulate the degree of misconduct, as in human auxiliaries. The potential standard should take into consideration, that in many areas of application non-human auxiliaries are more safe and less likely to cause damage to others than human beings, and the law should at least not dissuade their relevance.

Again, assuming that an AI technology is granted the status of a legal person, the AI technology can be held liable under the criminal law system. For criminal liability to be established both the elements of mens rea( mental element) and actus reus (physical act) are essential to be present. The pertinent question that arises here is that how does an AI technology fulfil these two essential aspects of criminal liability? And how is an AI technology liable directly for the commission of an offence?

Assuming an AI is an innocent agent , the obvious question that arises is that who shall be held liable for the crime committed? Here there are two candidates at play, i.e. the programmer of the Al software and the user of the AI software. A programmer of an Al software might design a program in order to commit offences through the Al entity. Both the programmer or the user do not perform any physical act in the commission of the crime and therefore, they do not meet the actus reus requirement of the offence. The legal result of this is that the programmer and the user should be criminally liable, as the principle of mens rea or malafide intention is attributed to them for the specific offence committed, while the Al entity has no criminal liability whatsoever.

In another scenario, assuming there is excess involvement of the programmers or the users in the day to day activities of the Al entity, but without any intention of committing an offence by way of the Al entity, negligence or recklessness should be considered as the standard of mens rea.

Yet another viewpoint suggests that an Al algorithm might have many characteristics and qualifications that exceed those of an average human being, but all such qualities are not essential in order to impose criminal liability. As far as a human or a corporation is concerned, if they are able to fulfil both the essentials of the mental and physical elements, only then can criminal liability be imposed. Similarly, if an AI technology is capable of fulfilling both the essentials of mens rea and actus reus, then criminal liability can be imposed on the AI as well. So long as an AI technology, controls a mechanical or other mechanism to move its moving parts, any act by the AI technology here may be considered as performed by the Al technology itself, thereby fulfilling the requirement of the physical component, i.e. actus reus. As far as the mental element or mens rea is concerned, the only essential requirements that need to be fulfilled under the general ambit of criminal law are knowledge, intent, negligence, etc. Knowledge is defined as sensory reception of factual data and the understanding of that data. Most Al technologies are well- prepared for such kind of reception. The process of analysis in Al systems parallels that of human understanding. The cognitive ability of the human brain understands the data received by senses such as eyes, ears, hands, etc., by analyzing that data. Similarly, advanced AI algorithms are trying to emulate human cognitive patterns. Therefore, if a human being can be held criminally liable for an offence by fulfilling the two criteria of intention and physical act, why should an AI be exempt from the same?

Another potential legal issue that crops up is that of the AI being defective in nature. This attracts product liability. As per the concept of product liability in case of any defect in the product, the manufacturer or the seller of the product is to be held liable for any defect in the product. However, as far as equating an AI technology to a product is concerned, the question that often pops up is that is it fair to hold the creator liable for any injury or harm caused by the AI, as this would inevitably draw an analogy with the principle of strict liability. It is essential that all AI technologies should have limits placed on their ability to cause harm, and it could be argued that there is no better person than the creator to be able to prevent any such harm caused by the AI as well as compensate for any financial losses resulting from such harm.

With an increasing shift in business towards the digital set up, and an increase in the demand of software products, another area of concern, is that of Intellectual Property Rights, particularly the Patent law. As far as protection of AI innovation is concerned, the Patent Act,1970 currently provides protection only to the true and first inventor, which implies a legal person , which includes either a natural person or an artificial person, i.e. a corporation. Section 3(k) of Patent Act 1970 clearly states that “mathematical or business method or computer programme per se or algorithms are excluded from patentability. However, in the recent order by a quasi-judicial body, in the case of Ferid Allani v Union of India has stated that computer inventions that meet the criteria of a ‘technical effect’ , are patentable under the law. This order opens the doors for an enormous corpus of innovation to now become protectable and more valuable as patent protection for innovations in India is essential to foster innovation.

Any discussion on AI is incomplete without addressing the issue of data protection. The functioning of AI is based on the dataset that is used to train the AI’s actions. Therefore, it is essential that such data should be utilized in a safe manner. Since there is a wide range of data collected at an individual’s end, to be utilized, the problem lies with respect to the safe usage of such data. In the event that the Personal Data Protection Bill, 2019 ( hereinafter referred to as “PDP Bill”), is pending before Parliament, the Information Technology Act, 2000 alongside the Information Technology(Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 provide a framework, for protection of sensitive personal information, as far as body corporates are concerned. This apart, the Ministry of Electronics and Information Technology ( hereinafter referred to as “MeitY”) has acknowledged the imbalance with a few companies dominating the market and has recommended that there should be mandatory data sharing mandatory to open up competition in any concerned sector enabling startups, or for other community/ public interest purposes. This is to ensure startups and small medium enterprises are given equal opportunity as compared to big corporate giants and there is no monopoly by corporate giants.

CONCLUSION

Given that AI is a growing industry and India has a tremendous corpus of AI innovators, with the development of an imaginative legal framework to govern the same, AI innovation can be safely unlocked and fostered, in a fashion that is safe and yet dynamic.

DISCLAIMER

The views expressed in this article are that of the author alone and do not reflect the views by any organization.

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Policy & Politics

INDIA-ASEAN TRADE COULD REACH US$200 BN: PIYUSH GOYAL

Tarun Nangia

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Piyush Goyal

Addressing trade barriers could take India-ASEAN trade to USD 200 billion, stated Piyush Goyal, Minister of Commerce & Industry, Consumer Affairs & Food & Public Distribution and Textiles, Government of India, while addressing the Indo – ASEAN Business Summit & Expo organised by Confederation of Indian Industry (CII) in partnership with the Ministry of External Affairs on 7 – 8 October, 2021.

The Minister stated that India considers ASEAN a valued partner and has contributed to the ASEAN COVID-19 Response Fund. He highlighted that during the pandemic India had not only met international service commitments, but had also shown to the world its capabilities of self-sufficiency by producing critical medicines, medical equipment, and vaccines, for domestic and export purposes, which has earned India the reputation of being the ‘pharmacy of the world.’

Today, 70 percent of the world’s vaccines are manufactured in India and the country’s prowess in producing affordable, standardised medicines make India a strong partner in mitigating the global health risks that are a top priority of Governments, affirmed Shri Goyal. India’s business friendly policies under the ambit of the Aatmanirbhar Bharat vision with Production Linked Incentive schemes amounting to USD 30 bn constituting APIs, drugs and medical devices open up a plethora of investment and partnership opportunities, he opined.

The India-ASEAN bilateral trade has grown significantly and stands at USD 80 bn and we should look at taking this to USD 200 bn. This is possible with strong collaborations between the countries and addressing the impediments on the way, said Shri Goyal. Misuse of the trade agreement including by third parties should be discouraged and this could instil more confidence in both sides to reduce tariffs for inter-ASEAN and Indian trade, he added.

Ministers from 7 ASEAN countries addressed the session.

Utilisation of digital and technology, especially in the 4th industrial revolution era can further strengthen the supply chain. One of the areas that we must work on is to build a vibrant and resilient supply chains through deeper trade and investment in the region, said H E Dr Khampheng Saysompheng, Hon’ble Minister of Industry and Commerce, Lao PDR. There must be a reduction in trade barriers such as non-tariff and technical trade barriers to ensure constant flow of goods and skilled man force across countries, he added.

Cambodia is highly committed to cooperating with India and ASEAN to seize the opportunity to make an environment for sustainable development, said H E Mr Chhuon Dara, Secretary of State, Ministry of Commerce, Royal Government of Cambodia. Enhancing trade efficiency through improving competitiveness by further strengthening the current trade facilitation mechanism is beneficial for trade within the region to be fast-flowing and efficient, he added.

India remains one of ASEAN’S largest trading partners, said H E Yang Berhormat Dato Seri Setia Dr Awang Haji Mohd Amin Liew bin Abdullah, Minister of Finance and Economy, Brunei Darussalam.

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Bilaterally, Brunei Darussalam has a steady trade economic relationship with India. In 2020, India is our 6th largest trading partner with a total trade value of over 583 million USD, he stated.

FTAs and enhanced economic cooperation are important, said Ramon Lopez, Secretary, Department of Trade & Industry, Philippines. Philippines looks forward to a more strategic, and wider economic partnership with India and ASEAN. ASEAN & India can work with other trading partners to seize the opportunity, he stated.

We should enhance economic cooperation through capacity building and technical assistance programmes, workshops, and seminars as well as outreach activities. Making strategic decisions will support the implementation and utilisation of ASEAN India treaty area, said H E Dr Pwint Sann, Union Minister, Ministry of Commerce, Myanmar.

It is important that ASEAN & India join hands in recovering from the adverse impact of the pandemic on the economy of the region, said H E Dr Jerry Sambuaga, Vice Minister of Trade, Indonesia. We need to keep our markets open, especially for medical & healthcare products and other essential goods, encourage trade facilitation, digital economy, produce assistance to our MSMEs, he added.

With the combined population of 2 billion people and the combined GDP of USD 5.6 trillion, ASEAN and India should work closely together to ensure open trade development and enhance entrepreneurial competitiveness, said H E Dr Sansern Samalapa, Vice Minister for Commerce, Thailand. Both sides should seek to transform farmers into smart farmers by making digital technology an integral part of their farming operations, he added.

Both India and ASEAN are home to rapidly growing markets and have a number of emerging opportunities in common sectors of interest including manufacturing, human development, logistics and transport, retail and human development, among others. Both sides together can contribute to building and diversifying supply chains, noted Mr T V Narendran, President, CII and CEO & Managing Director, Tata Steel Limited.

Business cooperation between India and ASEAN in areas of mutual interest such as FinTech, start-ups, and innovation, empowerment of youth and women and the development of MSMEs are important factors to take this multilateral connection to a higher growth trajectory, said Chandrajit Banerjee, Director General, CII.

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Policy & Politics

Sr. Adv. Vivek Tankha (MP) requests Australian High Commissioner for Diwali as optional holiday, reduction of fees for Indian students

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Sr. Adv. Vivek Tankha (MP), met Barrt O Farrell, the Australian High Commissioner to India on October 14th at Tankha’s residence. He requested Farell that it would be a great gesture if Government of Australia could kindly consider the Diwali day, November 4th, 2021 as an “optional holiday” in Australia for the people of Indian origin and similarly placed persons since it is a day of rejoicing and festivity. Also, he requested for working towards getting direct flight services operational for New Delhi to Sydney or Melbourne. Tanka also highlighted that the fee charged from Indian students in Australia is much more than what is charged from local residents, and requested it to be reduced.

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Policy & Politics

Freedom of speech and expression on social media: Exploring the contours of a new paradigm

The innate relationship between FSE and social media has been explained aptly by Barlow. According to him, the internet promotes democratic values and gives its users an opportunity to express and share views and opinions with other people of the world. ‘That has made it the best place for self-expression.’

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I . INTRODUCTION The shift from Times of India to Twitter, from job update corners of the daily newspaper to LinkedIn, from collecting photos in photo albums to Facebook and Instagram posts, from All India Radio to all time accessible YouTube, & from writing letters to texting on WhatsApp, this age of digitalization has revolutionized the life of all human beings. ‘Trending’, ‘texting’, ‘story’, ‘status’ etc. are the buzzwords of the 21st era. Expressing one’s views on social media is deeply related with the non-instrumental theory of freedom of speech and expression (for short ‘FSE’).

In this backdrop, it becomes quite pertinent to understand the pros and cons of the transformation brought by social media. In this article, the author endeavors to explain social media, FSE and their relationship with each other. Furthermore, it deliberates over the new challenges posed by social media, questions the ability of existing laws to curb them and then provides some probable solutions to tackle the same.

II. SOCIAL MEDIA VIS A VIS THE NON – INSTRUMENTAL THEORY Social media is an online platform where users from all over the world present their opinion freely by commenting, uploading and sharing their views in the form of text messages, photographs, and video or audio clips. Its features like openness, participation and interactivity are some crucial reasons behind its worldwide popularity. In the status quo, it is one of the most used tools for communicating and expressing one’s belief and opinion. The US judiciary in Reno v. ACLU has held that the written, spoken and visual expression posted on the internet is protected under the First Amendment. It further said that internet is “the most participatory form of mass speech yet developed.” The Indian Supreme Court in the case of Shreya Singhal v. Union of India has also held that citizen’s right of FSE over the internet is constitutionally protected.

The jurisprudence behind validation of FSE over the internet emanates from the non-instrumental theory. According to this theory, “speech and expression are essential to the development of the autonomy of an individual regardless of their utility and this is a desirable end in and of itself.” In layman terms, FSE helps a human being attain self-fulfillment by providing him/her the “right to rebelliously, vigorously and practically converse one’s mind”. FSE is not a means to achieve something but an end in itself. It provides the capability to articulate one’s views and opinions and present them sensibly and audaciously in front of others. The Hon’ble Supreme Court has also affirmed the same in the following words; “Freedom of expression has four broad social purposes to serve: (i) it helps an individual to attain selffulfillment… All members of society should be able to form their own beliefs and communicate them freely to others.” It further elaborated FSE as realization of an individual’s earnest desires and competence.

The innate relationship between FSE and social media has been explained aptly by Barlow . According to him, the internet promotes democratic values and gives its users an opportunity to express and share views and opinions with other people of the world. “That has made it the best place for self-expression.” Everybody is a performer on the stage of social media. It provides all participants (users) an equal and all time accessible platform to put forth their views. The expression of one’s fundamental beliefs and thoughts on social media is not necessarily done to promote democratic values (instrumental theory) but is more inclined towards attaining self-fulfillment & self-realization. The author argues that before the advent of social media the non-instrumental theory didn’t had much relevance in the discussions revolving around FSE but the emergence and rise of social media has provided a strong validation to the same.

III. FREEDOM OF SPEECH AND EXPRESSION & ITS RELATIONSHIP WITH SOCIAL MEDIA

In the words of Voltaire, “I may disapprove of what you say, but I will defend to death your right to say it.” These words very aptly summarize the law of FSE enumerated under Article 19(1)(a) of the Indian Constitution. These rights are not absolute and have been restricted with the help of provisions under Article 19(2) . The right to FSE is regarded as an essential step towards attaining liberty and is the hallmark of democracy. It occupies a prominent place in the order of priorities of liberty & is considered as the mother of all liberties. Justice Patanjali Sastri has rightly observed, “Freedom of speech… lays the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible” Social media is an important means of communication in the present world. We can’t imagine our lives without these platforms. These platforms transgress all geographical boundaries and help in exchanging and sharing information all across the globe. The reasons behind growth of social media include the increased use of internet, technological advancements, easy accessibility, inexpensive form of media and most importantly free space and ease of participation. It is popular among the youth as it is the best form of networking in the modern times. It helps them in creating their network and grab learning opportunities. It also provides a platform to the citizens of a nation-state to put forth their grievances and concerns & the state also at times has given due acknowledgement to the same. In the recent case of Lipika Pual v. State of Tripura , the Tripura High Court emphatically held that FSE over the internet is constitutionally protected. In this case, Smt. Lipika Paul was working at the post of UDC in the Department of Fisheries, Govt. of Tripura. It has alleged that she has violated Rule 5(4) of the Tripura Civil Services (conduct) Rules,1988 by posting comments on Facebook against a political leader which amounted to canvasing against the said leader. The Hon’ble Court held that the content posted didn’t amount to canvassing. Moreover, the same is protected under Article 19(1)(a) of the Indian Constitution.

IV. PROS AND CONS OF SOCIAL MEDIA

 As everything has 2 sides, social media too has its own share of praises and criticisms. On the brighter side, it provides voice to all the under privileged sections of the society. It has slowly turned into a powerful tool of protest. Numerous social movements across the globe such as the “Black Lives Matter”, “Arab Spring” , “Occupy Wall Street”, “Shahbag movement” along with various Indian instances such as the “hokkolorob” , “CAA-NRC” agitations, farmers protest, scrapping of Article 370 etc. are a testimony to the important role played by social networking sites in the rise of these movements. It has been aptly stated that “The use of digital media had radically transformed on-line individuals from passive receivers into active shapers of content, from observers of activism into activists themselves.” The Apex Court has also held that FSE on the internet is constitutionally protected and indefinite extension of internet shutdowns shall be unconstitutional as the same is a hurdle in the enjoyment of FSE and hence violates Article 19(1) (a). Dutton has referred the current use of Internet and other digital information and communication technologies as Fifth Estate. He said that “the growing use of related digital technologies and Internet is generating a platform for networking individuals in ways that enable a new source of accountability in government, politics and other sectors. … establishing another independent source of accountability, what has been called as ‘Fifth Estate’.” As aforementioned, social media has turned observers into activists. But the problem occurs when these activists turn into hyper-activists by crossing the realm of law. It has been seen that at times things have turned ugly leading to incidents of riots and mob-lynching. The violence that took place in Bengaluru last year was because of a communal Facebook post , the murder of Nilotpal Das and Abhijit Nath in Assam because of the rumor that they were child-lifters spread through WhatsApp , murder of Kaluram in Karnataka occurred because of a fake video spread through WhatsApp forwards, and other numerous incidents testify the grave dangers posed by social media. According to an India Spend report, out of the 69 mob violence cases reported, 77% of them were the result of fake news forwards. WhatsApp was the chief source of spreading misinformation in 28% or 19 of the 69 cases. These websites are also used for polarization of the masses. They are used to set narratives that are completely opposite to actual realities. These social media platforms can very easily build a positive/negative impression of a person, organization or community. Once the news/information goes “trending”, no one endeavors to do a fact check and accepts the same as truth.

V. SELF REGULATION V. STATE REGULATION Stringent regulations are required to counter the above mentioned problems. The pertinent question here is ‘how’ to do the same. To draw a line between curbing of fake news and regulation of FSE is a difficult task. A straight jacket formula can’t be devised to counter the same. The second issue is the capacity to manage sheer volume of ‘user generated content’. It is an arduous task to fact check all the content generated. The third issue is to devise a way that would stop forwarding of fake messages without intruding the privacy of a person. There are two ways to manage all these issues: i) Self-regulation: Here, self-regulation denotes two meanings. The first meaning corresponds to the social media companies such as Facebook, Twitter etc. These organizations as the owner of such platforms have a bigger onus in terms of managing content and curbing misinformation. Secondly, they are certainly in a better position in managing all these issues and taking appropriate actions as and when required. To narrow down the huge bulk of user generated content, they should keep vigilance on the trending information and when the same is found untrue it should be taken down as soon as possible along with a statement by the organization that the said information lacked authority. They should incorporate appropriate safeguards for curbing fake accounts. The second meaning corresponds to the users that they should always do a preliminary fact check before sharing/forwarding any information on such platforms. ii) State-regulation – The second method is regulation by state through the means of laws, rules and regulations. State being the custodian of the life and limb of all its citizens has a duty to protect them from any mishappenings. In India, the reasonable restrictions imposed under Article 19(2) of the Indian Constitution do provide certain safeguards. Along with these, Chapter XI of the Information Technology Act, 2000 also includes provisions for regulating information on social media. However, when the state regulates these platforms, it generally tends to use the same in its own favor and forbids dissenting opinions infringing FSE. At times, actions by the state also amounts to intrusion into a person’s privacy.

VI. CONCLUSION

 Social media has developed as the ‘fifth estate’ of the modern world whereas FSE has been one of the fundamental underpinnings of all libertarian regimes since ages. FSE is the bulwark of democracy and social media platforms strengthen the same by promoting exchange of opinions, views, information, ideas, beliefs and much more all across the globe. The challenge before us is to balance the scales in such a manner so that an individual can enjoy his/her FSE without getting trapped into the cycle of misinformation. The author is of the opinion that self-regulation should be preferred over state regulation because of two prime reasons. Firstly, the owner organizations are in a better position to handle the situation when compared with the state and secondly, when power is in the hands of state it uses the same as a means to silence dissent. Hence, it is high time to promote and practice self-regulation as a means to uphold the principles of freedom of speech and expression.

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