Constitutional supremacy is and has to be the bedrock upon which the edifice of a democracy rests. And if the foundation or the basic structure of the edifice is sought to be changed so as to invest one of the pillars of democracy with unbridled powers, the very edifice would tilt and consequently be weakened to the detriment of citizens and consequently of democracy. When however, an attempt is made to shift this balance, someone has to step in and play the role of a soldier, a saviour and consequently a titan so as to restore the balance. The titans to whom this article refers to in the context of the Constitution of India, have to surely be Kesavananda Bharati, the Judges of the Supreme Court that took the majority view and of course the legal genius Nani Palkhivala, who stood like colossuses in the face of the amendment to the Constitution which was the subject matter of challenge before the Supreme Court.
The passing away of His Holiness Kesavananda Bharati on the 5th of September,2020 brings down the curtain on the life of an individual whose memory shall be etched upon the minds of all those concerned with the Law, Judges, lawyers and politicians foremost amongst them, and of course, upon the minds of the Indian populace as a whole, who may not yet realise the immense contribution that the case that he helmed as a petitioner has had such a tremendous impact upon the politico legal landscape of our country.
Perhaps one of the greatest Constitutional cases that has been decided by the Supreme Court , and perhaps continuing to be so is the iconic case of His Holiness Kesavananda Bharati Sripadagalveru v. State of Kerala. That was a case that had the effect of stopping a legislature from running amok and imposing upon the citizens of this country, an Atlas like burden by seeking the right to amend and alter the basic structure of the Constitution, as per the whims and wishes of the legislature, which the Supreme Court thankfully and astutely halted in its tracks.
The challenge in the case was to the 29th Amendment Act , by virtue of which the Kerala Land Reforms Act, 1969 and the Kerala Land Reforms Amendment Act, 1971 were placed in the 9th Schedule to the Constitution. As a result, this brought into focus the issue as to whether the Golak Nath case had been rightly decided or not. The conflict started with the decision rendered by the Supreme Court in Golak Nath v. State of Punjab in 1967, where the Court held by a slim majority of 6 to 5 that the Parliament had no power to amend Fundamental Rights. The majority took the view that the law in Article 13(2) was inclusive of even a Constitutional law enacted by the Parliament in its powers under Article 368 of the Constitution.
On 5th November, 1971, the Parliament passed the 24th Amendment Act, which gave the right to amend the Constitution by amending Article 368 and Article 13, the effect of the amendment being to overrule the majority judgment in Golak Nath. As a result of this amendment, and as a corollary thereto, several legislations were amended, including the Kerala Land Reforms Act, 1971, which was sought to be inserted by the 29th Amendment Act , so as to place the Act in the 9th Schedule of the Constitution, in order to validate the provisions which had been overturned by the Kerala High Court. This laid the ground over and for the mine field of a direct confrontation between the Parliament and the Supreme Court.
With the challenge mounted to the Kerala legislations previously referred to, the challenge to the Golak Nath case was apparent in Kesavananda Bharati as it raised the question as to whether that case had been rightly decided. Whereas a bench of 11 Judges had decided the Golak Nath case, a bench of 13 Judges was constituted to hear the Kesavananda Bharati case. The stage was thus set for the decisive Battle Royale between the Parliament and the Supreme Court .
A marathon, in any sense of the term, the hearing of the case went on for a mammoth 66 days. It was decided with 7 judges taking the ‘Majority view’.The result upon conclusion being that though the decision in Golak Nath’s case that there is no implied limitation on the powers of Parliament to amend the Constitution, was reversed, it was emphatically held that no amendment can do violence to the basic structure doctrine. The words in the judgment are that “ Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”.
11 judgments were rendered in the case which constituted a bench of 13 justices. This being a short article on the issue, it is neither possible or practicable to reproduce the divergent views expressed by the judges.
Many legal scholars and jurists have argued that the “ Note” which bears the signatures of the “majority” could not be considered as a majority view. But comity in justice or judicial comity being what it is, it can very safely be argued that since 6 judges held the view that there was a limitation on the amending power and since one judge, Justice H R.Khanna had emphatically held that parliament could not amend the basic structure or the framework of the Constitution, the judgment was therefore by a majority, with the decisive view of Khanna J, which could be considered as a ‘ swing vote’ if election terminology is used or the deciding vote , as he agreed in principle with the view and furthered it by stating the above. The resultant effect being that by virtue of and being propped up by the view of Khanna J, the Court held that the Basic Structure of the Constitution could not be tinkered with by the Legislature. It could be said that the merged views of the majority read with the view elucidated by Khanna J, therefore effectively was the view of the Court and sealed the fate of the amendment.
The fallout of the verdict
The judgment in the Kesavananda case was pronounced on 24th April, 1973. Chief Justice Sikri was to retire on 25th April,1973. Normally his successor Chief Justice would be named earlier. In a surprise development however, which may perhaps have been foreseen by them, three senior most judges, Justices Shelat, Hegde and Grover, were superseded and Justice A N.Ray was appointed as Chief Justice, whereas in the normal course, justice Shelat would have been appointed as Chief Justice. This happened on 26th April, 1973 and Justices Shelat, Hegde and Grover resigned on the same day at 4.00 p.m.
On 9th October, 1975, Chief Justice Ray passed an order that a bench of 13 Judges would hear a review petition. The hearing commenced on 10th November, 1975 and went on to the 11th of November. When the bench assembled on 12th November, as soon as the proceedings were called, the Chief Justice stated that “ this bench is dissolved”. Every person concerned with the hearing was caught by surprise. The review therefore paled and was put to rest. However, no record of the review is available.
Upon the retirement of Ray CJ, M H.Beg J, was appointed as Chief Justice, whereas H R.Khanna J, would have been appointed. He was however overlooked, perhaps because he had dissented with the majority view in ADM Jabalpur v. Shivkant Shukla. That case was, of course one where many around the country had been detained during the days of the emergency. Upon Habeas Corpus petitions being filed, High Courts had held that the writs were not maintainable as Article.21 of the Constitution had been suspended. When the matters were heard in the Supreme Court, in the above case, the majority held that the petitions were not maintainable. The lone dissent was by Justice H R.Khanna. He disagreed with the position of the majority that Art. 21 can be suspended by the declaration of Emergency.
He stated that, “without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning.” This dissenting judgment and the earlier view that he had taken in Kesavananda, cost Justice Khanna his Chief Justice ship. He too resigned.
The turn of the tide decades later is worth a mention here. The great American Judge, Charles Evan Hughes wrote that “A dissent in the court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” That is what happened in the case of K S.Puttaswami v. Union, which is known famously as the Right to Privacy case. The decision in ADM Jabalpur was overruled . Though judges do their duty when they decide cases, they never look to accolades or even recognition while doing so, but one cannot but wonder whether the indomitable spirit of the judge would surely be pleased that , even if quite a bit late, his words of dissent have prevailed with considerable and emphatic authority.
Fresh attempt to undo the decision in Kesavananda
The matter in Kesavananda refused to die down . The powers that be were perhaps biding their time for an opportunity to have the judgment reversed.
The basic structure doctrine, evolved by the Court in Kesavananda was first tested in the case of Indira Nehru Gandhi vs Shri Raj Narain, where the Court applied the doctrine . By virtue of the 39th Amendment ,Parliament inserted Article 329-A in the Constitution, clauses (4) and (5) of which article barred judicial review of elections for the posts of President, Prime Minister, Vice President and the Speaker of The Lok Sabha. The Court struck down the clauses as being violative of the Basic Structure doctrine.
The 42nd Amendment was moved by the Government in order to once again tilt the balance of power and establish supremacy over . Rather than reproduce the same here, suffice it to say that the amendment once again sought to curtail the powers of the Courts. There was a change of Government at the Centre and the new Government brought in the 44th Amendment in order to do away with the earlier one. The 44th Amendment reversed the provision made by the 42nd Amendment that allowed the government to amend the constitution .
The controversy however, did not rest there. This was brought to the fore in the case of Minerva Mills v. Union of India. The mill had been nationalised and taken over by the Government. This was challenged. Again without going deeper into the whole controversy, suffice it to say that section 55 of the Amendment Act was challenged. This too was struck down. The Judges however deferred on the amendment to Article 31C. That , as yet remains a grey area according to Constitutional experts.
The Basic Structure Doctrine remains, but was later refined by the Supreme Court
In a later decision in Waman Rao v. Union of India, soon after the decision in Minerva Mills, the Court held that the various Amendments by which additions were made to the 9th Schedule, would be valid only if they did not damage the Basic Structure of the Constitution.
That of course led to further issues. A Constitution Bench hearing the case of I R.Cohelo referred the matter to a larger bench. A bench of 9 Judges held that Amendments to the Constitution made on or after 24/4/1973 by which the Ninth Schedule is amended by inclusion of various laws.. shall have to be tested on the basic or essential features of the Constitution……though an Act is put in the Ninth Schedule by a constitutional Amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure…
It was also further held that “ Justification for conferring protection…on the laws included….. shall be a matter of constitutional adjudication…..if the infraction affects the basic structure then such laws will not get protection of the Ninth Schedule”.
What is the Basic Structure?
The concept of basic structure is difficult to encapsulate. But what emerges from a perusal of the judgments of the Supreme Court is that some features of the Constitution lie at its core and are therefore sacrosanct. In the course of the hearing of Kesavanandas case, and as emerges from the judgment, some concepts as set out by the judges are what the basic structure refers to. I refer to some of them here. Supremacy of the Constitution, secular character of the Constitution, separation of powers between the legislature, executive and the judiciary, essential features of the individual freedoms secured to the citizens, secularism and freedom of conscience and religion.
The arguments advanced by Palkiwala in the Minerva Mills case are worth reproducing in an encapsulated form. He argued that giving primacy to the Directive Principles over Fundamental rights, had the effect of demolishing the basic structure. According to him, principles stated in the Directive Principles could only be achieved through permissible means, without infringing the provisions of Part III of the Constitution.
The Court stated that to destroy the guarantees given by Part III (Fundamental Rights) in order to purportedly achieve the goals of Part IV (Directive Principles) is to plainly subvert the Constitution by destroying its basic structure. And so holding, the Court held that Sections 4 and 55 of the 42nd Amendment Act, 1976 to be ultra vires the Constitution of India.
To put this in perspective. the Basic Structure is the base upon which the edifice of our Constitution stands. The structure is seen in the form of Fundamental Rights. If laws are made which have the effect of altering or altogether doing away with the Basic Structure Doctrine, then it would be perceived as an attack upon the Basic Structure and would not stand judicial scrutiny.
To further comprehend this. Article 44 of the Constitution speaks of the State endeavouring to have a Common civil Code. It is a Directive Principle. Why does it appear as a Directive Principle? The framers of the Constitution and the Constituent Assembly were aware of the plurality of religions in the country. They were aware of the various uncodified laws that existed. They were aware of public sentiment and the possible impact of foisting upon the citizens such a code. Thus it was placed as a Directive Principle with the words.. The state shall endeavour. If the observations of the Court over the decades on a possible Common Civil Code are read, it becomes abundantly clear that though desirable as per Article 44, a code may not be practicable in view of public sentiment. In Lily Thomas v. Union of Indiathe Court stated that-” In another decision, namely, Pannalal Bansilal Pitti v. State of A.P. “, this Court had indicated that enactment of a uniform law, though desirable, may be counter-productive. I refrain from reproducing excerpts from other judgments due to space constraints.
Dr. B. R. Ambedkar in the Constituent Assembly on 2nd December, 1948 at the time of making of the Constitution. While discussing the position of Common Civil Code, Dr. Ambedkar, inter alia, had stated in his speech that “. . . . . . . . . . . . .I should also like to point out that all that the State as claiming in this matter is a power to legislate. There is no obligation under the State to do away with personal laws. It is only giving a power.He further stated in his speech as under :”We must all remember …that sovereignty is always limited, no matter even if you assert that it is unlimited, because sovereignty in the exercise of that power must reconcile itself to the sentiments of different communities’
The Constitution of our country gives us religious freedom. Our personal laws are woven around our diverse religions. That is a fundamental right. Thus even though the Common Civil Code is perceived in the Constitution, its practicability must be measured against public sentiment. It must also be looked at by the powers that be that we already have statutory personal laws in existence for many religions. If not in existence, they can be brought in by legislation for the religious denomination . In fact, the Law Commission of India itself in its report on the Common Civil Code stated through the then Chairman that instead of a code, changes in personal laws would be recommended.
Despite various attempts at different times, a Common Civil Code has been difficult to put into place. It has not been due to any appeasement but due to sensitive religious overtones . In fact, there are some petitions pending before a High Court seeking prayers that a Common Civil Code be formulated. The question arises as to whether such a petition based upon a Directive Principle can lie, when the Courts have held that one could prefer a writ when there is violation of a fundamental right. Let us suppose the High Court does not entertain the petitions on the ground of maintainability. But what if the petitions are entertained. Can the Court direct such implementation. I think not. If however, the court does recommend instead of directing, what will be the ultimate outcome? A political party has the Uniform Civil Code on its wish list.
Will the probable future taking away of personal laws and replacing them with a Common Civil Code amount to a violation of the fundamental rights of the guarantee of religious freedom? Can and more particularly, should it be done? Does it go against the Basic Structure Doctrine?
Do we have another Kesavananda Bharati waiting to happen in the wings, and alongside him another incarnation of N A.Palkiwala ? Only time will tell.
Sr. Adv. Satyajeet A. Desai practices at the Gujarat High Court. He is a revising author, Mulla’s Hindu Law and Desai on Partnership.
Beyond political sloganeering: Actual benefits of new farm bills
It is undisputed that APMC laws affect the state revenue. However, it is the conflicting interest of the state government which is preventing the farmers to reap actual profits from the product. The Central government in 2003 drafted a ‘Model APMC Market System Bill’. The purpose of the Bill was to help the state government liberalise their respective APMC laws and reduce the role of intermediaries. No state incorporated the reforms suggested therein. Therefore, the Central government was correct in bypassing the state government in bringing new legislation for agrarian reforms.
Introduction: The protest by the Indian farmers against the recent changes to the law related to farming is gradually intensifying. Through the recent ordinances, the Central Government aims to usher in a change of open market system in the agriculture sector. However, this change is being resisted by many farmer groups and unions who accuse the Central Government of indirectly removing the Minimum Support Price system and making the farmer vulnerable to corporate giants.
A cumulative reading of The Farmers Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020; The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020 and The Essential Commodities (Amendment) Ordinance, 2020. It is pointed out that these ordinances were in the current session were brought in as legislation and passed by both the houses of parliament. These legislation show a majority of concerns raised by the farmer groups and unions are based on false apprehensions misguidance by political parties. In this article, we try to bust the myths surrounding the recent changes to these Acts and address genuine issues in the implementations of the Acts.
The Problems with Agricultural Produce Market Committee System
A major criticism of the recent changes in the law related to farming is that it indirectly dismantles the Agriculture Market Committee System. However, the APMC system suffers from many infirmities and required reforms. The APMC system has created inconsistent growth amongst different stakeholders involved in the agrarian sector. While the agents/traders of APMC market earn astronomical profits, the farmers receive inadequate payments.
Under the APMC laws, farmers can only sell the agricultural produce at fixed “market areas”. The legal definition of the “market area” is very wide. It can range from a small area of land to an entire district. Under the APMC system, the farmers cannot sell their product outside the said “market area”. There is also a prohibition on selling product at APMC “market area” of a different district. The APMC system further requires the farmers and traders to pay a service fee to the APMC. APMC markets charge a service fee, even in those cases where no services are availed by the farmers. The restrictive nature of the APMC system suffers from serious problems. The system gives birth to cartels wherein the APMC agents conspire together to prevent high bids and get agricultural products at a very low rate. The profits made on selling the final product are shared between the APMC agents while they leave the farmers empty-handed. Another problem in the APMC system is restrictive trade barriers. For instance- The license fee charged by the APMC is very high, which makes the entry of a new distributor-agent very difficult. Further, the APMC demands a high rate of commission, fees etc on procurement of agricultural goods. Restrictive trade practices like these increase the ultimate price of the product.
The Ashok Dalwai Committee aimed at increasing the farmer’s income also recognized the involvement of numerous intermediaries in the sale of agricultural goods. According to the Dalwai Committee, majority farmers received only 15% of the ultimate price and the intermediaries earned the remaining profits. The Dalwai Committee also noted that India needed at least 3500 additional APMC market to make the sale of agricultural goods easier. Because of the lack of APMC market, the small farmers have to sell their product outside APMC areas to unlicensed agents who pay even less money than APMC agents for the agricultural product.
What has to be really pointed out is that the states where protests against the action of the central government are actually taking place there does not exist a very active APMC regime. Also it is imperative to mention that the existence of APMC regime is huge source of funding for the regional political players. It is the end of this source of funding which is actually leading to protests in the name of farmers rights.
Empowering the Indian Farmer Viz New Legal Regime
The objective behind the new legislation is to liberalise the agrarian economy. The Government aims to provide greater bargaining power to the farmers and minimize the role of the intermediaries by removing restrictive trade barriers.
Section 2(m) of The Farmers Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020, stipulates an expansive definition for “trade area”. Under this section, farmers no longer have an obligation to sell their products only at the AMPC markets. Unlike the AMPC market system, farmers can now directly sell their product at any area or location, place of production, collection and aggregation including (a) farm gates; (b) factory premises; (c) warehouses; (d) silos; (e) cold storages; or (f) any other structures or places, from where the trade of farmers’ produce may be undertaken in the territory of India. Critics of the ordinance argue that even before the ordinance came into effect, majority Indian farmers sold their goods outside the AMPC markets. However, the same critics conveniently hide the fact that under the APMC market system products were sold outside the APMC market because of compulsion and at a very low price. Section 2(m) of the Act creates an additional place for trading agricultural products where the importance of the intermediary is negligible. Therefore, the farmers will directly earn profits as they won’t have to pay any additional commissions. As explained above, the entry of a new trader-distributor was very difficult because of cartels and high licensing fee. The FPTC Ordinance solves this problem too. According to Section 2(n) of the Ordinance, any trader with a pan card can now buy products directly from the farmers. Such a person can simultaneously trade products from outside and inside the AMPC market. However, to carry trade inside the AMPC market, he would require the requisite license under the AMPC laws. Further, Section 6 of the FPTC Ordinance prohibits State Government from levying any additional market fee or cess on farmers and traders. Section 6 of the Ordinance helps both- the farmers by increasing their total share in profit and the consumers by reducing the overall cost of the final products. Perhaps the most innovative provision under the FPTC Ordinance is the introduction of electronic trading for agricultural products.
Under Section 4 of the Ordinance, anyone can create an electronic interface to facilitate easy buying and selling of agricultural goods. The Ordinance empowers the government to regulate electronic trading. The Government also has the power to punish any electronic trading platform that indulges in unfair trade practices for a penalty up to Rs 10 lakh.
The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020 (FAPAFS) safeguards financial interests of the farmers. According to Section 3(1) of FAPAFS Ordinance, all agreements must be in writing. Section 5 of the Ordinance requires that sponsor must mention the price for the product in the agreement itself. According to Section 5 of the FAPAFS Ordinance, the agreement must have a minimum guaranteed price for the product and details of the bonus and premium amounts which the sponsor will pay. The sponsor should calculate the bonus amount from the price prevailing in the AMPC market. According to FAPAFS Ordinance. Section 3 further requires that The Sponsor shall make payment of not less than two-third of agreed amount at the time of delivery and the remaining amount after due certification, but not later than thirty days of delivery and in other cases, make payment of agreed amount at the time of accepting the delivery of farming produce and issue a receipt slip with details of the sale proceeds.
No Irregularity In Procedure Adopted to Pass The Legislation
The opposing political parties have quested how the Central Government has passed all three farm-related legislation. Many political parties have termed it as a death of democracy. The political parties in opposition have raised 2 major concerns regarding the procedural irregularity. The opposition parties firstly claim that the Central Government passed the legislation hastily. They argue that the State Government should receive more time to deliberate since the reforms affect the revenue of State Government. Second, the Deputy Speaker of Rajya Sabha intentionally adopted a “voice vote” procedure and the MPs who protested against voice vote faced suspension. Further, many political groups have claimed voice vote to be an unprecedented phenomenon.
All these accusations are merely misdirection by the opposing political parties. It is undisputed that APMC laws affect the State Revenue. However, it is the conflicting interest of the State Government which is preventing the Farmers to reap actual profits from the product. The Central Government in 2003 drafted a “Model APMC Market System Bill”. The purpose of the Bill was to help the State Government liberalize their respective APMC Laws and reduce the role of intermediaries. Because of the strong political lobby of APMC markets, no State Government incorporated the reforms suggested in the Model Bill. Therefore, the Central Government was correct in bypassing the State Government in bringing new legislation for agrarian reforms.
The second allegation of irregular parliamentary procedure is also incorrect. The MPs from opposing parties in the Parliament have argued that the Deputy Chairman of Rajya Sabha suspended them for distribution of votes. However, the argument suffers from unsound legal principle. The suspension of MPs is because of the ruckus created by a few members of the opposition. The Deputy Speaker is well within his power to punish MPs who resort to unruly behaviour inside the Upper House. Ironically, the Deputy Speaker did resort for a division under Rule 252(3). However, because of the commotion created by the opposition inside the Parliament, the division became unfeasible. It is pertinent to mention that voice vote is the norm in the Indian Parliament. Recently, the Rajasthan Legislative Assembly also decided the recent No Confidence Motion against the Ashok Gehlot Government through a voice vote. If the criticism of the legislation is because of the method of voting, then the scope for reform lies in the rules and procedure of the Parliament and not merely a criticism of its usage.
While it is made clear that the authors do not support the manner in which the bill was passed in the house but it was not the first time it has happened and in no manner can the deputy chairman of Rajya Sabha be blamed for the action.
What has to be appreciated is the fact that this government is inclined to act towards roping in new structural reforms and take unprecedented decisions for actual changes in the exisiting system. The protests and furore over these newly passed legislation is only political in nature as it leads to nothing but losing out on regional vote banks and illicit funding which is their kneeve of survival in states. These reforms are need of the hour in order to create a robust agricultural setup.
Adv. Sai Krishna Kumar, is an advocate with MS Law Chambers and Co-author Aditya Joshi is a penultimate year Law student from University of Delhi.
How much funny is really funny? The debate over parody in copyright law
The rights that a work of parody might violate are the distribution rights over the work, right to publicise the work in a positive light, and the moral rights which are associated with the author. Moral rights essentially prohibit modification of the copyrighted work in a manner that injures the honour and reputation of the owner of the work.
The difference between parody and satire has not been accepted or developed by the Indian courts in the context of IP laws. This means that whether a work is a parody or a satire, the defence of fair use can be claimed by the defendants and the work shall also be entitled to claim separate copyright protection as well.
Parody refers to a work that humorously and critically comments on existing work to expose the flaws of the original work. Parody, as a means of criticism, has been historically used by various people such as stand-up comedians, YouTubers, Bloggers, actors, authors, etc. to communicate a particular message or a point of view to their audience. This means that to create a successful parody, one has to, inevitably, use the original work. Since copyright law gives authors of original work certain exclusive rights, such as the right to reproduction, communication to the public, distribution rights, right to make derivative works, and other such rights associated with the work, parody turns out to be a violation of the rights granted to the copyright owner.
The rights that a work of parody might therefore violate are the distribution rights over the work, right to publicize the work in a positive light, and the moral rights which are associated with the author. Moral rights essentially prohibit modification of the copyrighted work in a manner that injures the honor and reputation of the owner of the work.
Parody issues generally come into play with tort law as well as criminal law, especially law on defamation. However, in this article, we’ll try and focus on the major IP issues that hover around the debate regarding parody.
Copyright Law and its philosophy
Copyright is a unique kind of property. Just like other Intellectual property, you cannot touch or feel it, but you certainly can protect the ‘creation of the mind’. However, the objective behind copyright law is to “strike a fine balance between monopolistic claims made by authors of original work and adequate protection to the Intellectual property to encourage further creative thought”. Such copyrighted work can therefore be used by third parties to encourage creativity – This is fair use. However, such use has to be reasonable and under certain conditions for specific purposes only.
The Four Factor Test
For a valid fair use claim, the defendant will have to satisfy what is commonly known as the “Four Factor Test”. Under the four-factor test, the consideration is: firstly, what was the purpose and character of your use of the copyrighted work. Secondly, the nature of the copyrighted work, which means that if the work is copyrighted then, what is the degree of protection that it deserves. Thirdly, the amount and substantiality of the portion of the work that was taken by you. This means that whether the amount of copying done by you was reasonable in relation to the purpose of copying and lastly, the effect that your use will have on the market of the owner. Will your use impact the potential market of the original work.
Parody and Satire
Indian laws treat parody and satire as one and the same. However, the position is different when one looks at the jurisprudence evolved by the courts of foreign Jurisdictions.
In the United States, the courts have differentiated parody and satire to the extent that it impacts the defense of Fair Use under their copyright law. In Campbell v. Acuff-Rose Music, Inc (1994), the court differentiated between the two and held that “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s imagination, whereas satire can stand on its own feet and so requires justification for the very act of borrowing.” Parody, according to the court, meant, “Second work by a different author that imitates the characteristic style of the first author … to ridicule or criticize the copied work.” However, satire meant a work in which “prevalent follies are assailed with ridicule or attacked with irony, derision or wit.” The Supreme Court of the United States, in this case, made it clear that while parody was entitled to the defense of fair use, satire was not.
On the other hand, in May this year, the Delhi High Court had an interesting case before it. Netflix aired a web series on its platform named “Hasmukh” which is a dark comedy about a small-town boy who arrives at Mumbai to pursue his career in stand-up comedy. Something weird about Hasmukh, the protagonist, is that he can only successfully perform his act if he commits murders before his performances and makes jokes about his victims. During one of the episodes, Hasmukh has been shown to have had an upsetting experience with a lawyer. The lawyer is someone dishonest and greedy. During the same episode, the protagonist allegedly makes derogatory remarks against the entire legal fraternity. So, a suit was filed before the Delhi High Court seeking a stay against further airing the web series. The court in Ashutosh Dubey v. Netflix (2020) sat to decide whether the above situation amounted to freedom of speech and expression under Article 19(1) (a) of the Constitution of India. Although the case was decided based on the above contention, the court made certain remarks on what a satire is. The court said, “Satire is a work of art. It is a literary work that ridicules its subjects through the use of techniques like exaggeration. It is a witty, ironic, and often exaggerated portrayal of a subject.”
Another instance when the court considered the issue of satire was in the case of Indibily Creative Pvt. Ltd. vs. Govt. of West Bengal (2019). It was the Supreme Court that held that “A Satire is a literary genre where issues are held up to scorn by means of ridicule or irony. It is one of the most effective art forms.” The difference between Parody and satire has not been accepted or developed by the Indian courts in the context of IP Laws. This means that whether a work is a parody or a satire, the defense of fair use can be claimed by the defendants and the work shall also be entitled to claim separate copyright protection as well. This is because the courts in India have considered both these forms of expression as a work of art and have characterized them under artistic expression.
Parody and Fair Use
Parody is included under a category of works allowed under Section 52(1)(a)(ii) of the Copyright Act, 1957. This provision provides for ‘criticism or review, whether of that work or any other work.’ Parodies usually are essentially a criticism of original work and are therefore included in the list of works allowed in the above provision. However, it isn’t as simple as it sounds. The real problem starts when you have to prove that your work was a parody and not an infringement on the rights of the original copyright holder.
To prove that your work is covered under parody, you have to satisfy two conditions which will essentially conclude as to whether it is covered under fair use or not. They are, Firstly, you must not have intended to compete with the copyright holder. This is also called the Market Substitution Test and Secondly, you must not have made ‘improper’ use of the original work. These conditions were laid down in the case of Blackwood and Sons Ltd. & Ors. v. A.N. Parasuraman & Ors. (1959)
So, if you can prove that your work has not impacted the potential market of the original work and that the parody and the original work cater to two completely different sets of audiences, you would have passed the market substitution test. This is tricky because applying this rule strictly is impossible for the simple reason that one is not quite sure if the categorization of the audience can be done in the manner that this rule presupposes. If the court looks into the commercial gains made by the parody to see if the parodist has competed with the original author, then that too wouldn’t be an effective mechanism. Kris Ericson writes, that, even if the parody has made commercial gains by criticizing the original work it doesn’t mean that it has made inroads into its potential market. Infact, he goes on to mention that, it has indirectly helped the original copyright owner by publicizing the original work and for lesser-known works, it has served to make it more famous/popular.
The Transformative Work Test
To meet the difficulties that could arise while analyzing the first condition, the courts have evolved the “Transformative Work” Test. This test was also used in the Campbell case where the US Supreme Court held that the relevant question to decide in such circumstances is to see “to what extent the new work is transformative, i.e., to what extent the new work alters the original with new expression, meaning or message.” This test has therefore substantially downplayed the commercial use argument and if the parodist can show that his work is transformative, he would be entitled to fair use defense. However, what qualifies as a “transformation” under this test has to be decided by the court on a case-to-case basis.
In Leibovitz v. Paramount Pictures Corporation (1998), the US Court of Appeals for the Second Circuit was faced with a dilemma. Leibovitz is a well-known photographer. Among her most famous works is the photograph of the actress Demi Moore. Moore was pregnant when the photo had been shot by Leibovitz. She was depicted nude with a serious facial expression. The photo was shot keeping in mind various aspects such as skin tone, body positioning, and lightning, among other things. The photograph gained popularity in very little time. Paramount pictures, sometime later, published a photograph of the actor Leslie Nielsen where the company had used the same concept behind Leibovitz’s photo. The company used the photo of a naked pregnant woman, which was shot using similar lightning, body positioning, etc. and superimposed the ‘smirking’ face of Nielsen in the place of the woman. Now, the question that the court had to decide upon was, whether this amounted to a transformative work at all. The court held that Paramount’s use was transformative because it had imitated the original work and had brought in a ‘comic effect or ridicule’ which was an addition to the original work. The court also held that Nielsen’s photo with a smirking face had a contrasting dissimilarity with the serious expression of Moore which may be perceived as commenting on the ‘pretentiousness’ of the original.
In R.G. Anand v. M/s Deluxe Films (1978), the Supreme Court in India has held that “Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.”
However, a work does not become a parody simply because there is humor inside it. If it is found that the parodist has tried to use a famous work to gain more commercial benefit by simply incorporating humor in the work, it wouldn’t be considered a parody. For instance, during the fag end of 2015, a US court was hearing an exciting case. The defendant, who was an apparel company, had used the iconic Superman logo on its T-shirt. The T-Shirts featured the word “Dad” in a superman-styled logo. They claimed that SuperDad T-Shirts by the defendant were an obvious parody of the Superman logo and therefore there is no likelihood of confusion that could be caused to the consumers. They infact claimed that the word ‘Dad’ was used to point out Superman’s ‘undue self-importance’. The court was sitting to decide on the motion to dismiss the complaint. The judge disagreed with the arguments of the defendant and held that although the defendant’s use of the word Dad is humorous, it is only to promote the t-shirts using the logo of the plaintiff, and therefore it is not a parody.
What does the SupermanSuperDad fiasco show? It shows two things in particular. It shows how a defense of parody will only succeed if the work is not likely to confuse the consumers as to the source of the work. Secondly, it shows how parody has to be more than being just funny especially when the work is purely commercial in nature. It has to make some commentary on another’s work. The commentary must be meaningful and must not be simply to utilize someone else’s work to increase your sales.
Parody and Moral Rights
Moral Rights are inalienable rights granted to an author of a copyrighted work. They exist independently of Copyright. The author of an original copyrighted work, even after agreeing to alienate his exclusive economic rights, retains moral rights in his works which can be enforced when the need be. They give the right to the author to have the work attributed to him which is also known as the right to paternity.
Moral Rights were included in Article 6bis of the Berne Convention way back in 1928. Section 57 of the Copyrights Act, 1957 grants protection against any act of distortion, mutilation, modification, or any other untoward act done to an author’s original work in which copyright exists. Acts which prejudice the honor or reputation of the creator of the work is read as a violation of the Right to Integrity, which also forms a part of Section 57.
It is to be understood that parody directly infringes upon the moral rights of the author of an original work. This is because it is based on ridiculing and mocking the copyrighted work. This is where the second test to claim parody as fair use comes in. We do know that to claim fair use defense in parody, the parodist will have to prove that he did not use the original work in an ‘improper’ manner. But the test becomes difficult to theorize because of a lack of a clear definition of the word ‘improper’ and as to what it entails.
Here, there are issues relating to freedom of speech and expression (argued by the parodist) as well as those related to defamation law and claim over one’s right to dignity (argued by the author of a copyrighted work). It is to be understood that freedom of speech and expression is not an unbridled right. It is infact a right with reasonable restrictions. This means that a parodist is not allowed to ridicule or attack the work such that it can be imputed to the author of the work.
How can this distinction be made is a question of fact which the courts have to decide on a case-to-case basis. Usually, the courts apply what is called “The line of Creativity” principle. This principle draws a line between the parodist’s creative application of ideas and expressions to criticize the original work, and, the insult or humiliation intended towards the author of the original work. Such an inquiry is for the courts to do. But while doing such an inquiry the courts need to draw a distinction between innocent humor and defamation intended against the moral rights of an author.
Notably, the Australian Supreme Court laid down the ‘bane and antidote Test’ in the case of Charleston & Smith vs. Newsgroup Newspaper Ltd (1995). The test laid down a rule that if any defamatory text or picture is accompanied by a disclaimer prescribing that the work has been used just for humor purposes then it must be taken only for humor purposes and nothing more or nothing else. This was a big development.
The growth of new media technologies has increased the number of actors, standup comedians, bloggers, and other stakeholders in copyright law. The use of original copyrighted works, without the permission of the author of the work, has almost become a norm and a social and cultural behavior. This is all being done in the name of a joke or a parody. Majority of these contents violate the moral rights of authors of original works and are offensive. The rest use parody as a fair use defense for works that are purely aimed at commercial gain. Such infringements need to be regulated in an age of digital India to grant incentives for creators to create more works of artistic expression. The different tests adopted by the courts have to be applied equitably. In the longer run, this will further the goal of Intellectual Property to balance the rights of the Authors as well as those forming part of the citizenry.
Anurag is a student of National Law University, Visakhapatnam and can be contacted at email@example.com Abhinav is a student of law from Amity University, Noida and can be contacted at firstname.lastname@example.org
Constitutional framework during Covid-19
To fight against this pandemic, Prime Minister Narendra Modi imposed a nationwide lockdown for 21 days from 25 March 2020 with only a few essential services running, all others like commercial, industrial, religious and cultural activities were shut down. Residents were ordered to self-quarantine themselves. A comprehensive look at its legal and statutory sides.
Right to life as guaranteed under Article 21 of the Constitution of India also includes the right to health and states being the duty bearer to protect the health and wellbeing of its people. The right to health also has its reference in Article 38 — social order to promote the welfare of the people under the Constitution of India.
The novel coronavirus also known as COVID-19 said to be originated in Wuhan, China. Over a period of time, it has been spread almost all the other countries, including India, which observed its very first case in January this year. With the increasing number of cases, the World Health Organization (WHO) declared COVID-19 a “Global Public Health Emergency”. Governments across the globe have taken drastic measures to limit the virus’s spread, including national lockdowns, border closures, and ramped-up medical research. To fight against this pandemic, Hon’ble Prime Minister Narendra Modi imposed a nation-wide lockdown for 21 days in India from 25th March 2020 with only a few essential services running, all others like commercial, industrial, religious and cultural activity were shut down. Residents were ordered to self-quarantine themselves. This lockdown was aimed at slowing down the spread of the coronavirus and breaking the chain to combat corona. Instead of obeying the lockdown order, people started panicking and scrambling to stock daily essentials products and thousands of labours, migrants, who fear dying not from the deadly virus but rather from hunger, have decided not to wait and start moving to their respective state. Many of the fundamental rights of the people are suspended.
Stages of transmission
According to the Indian Council of Medical Research (ICMR), there are four stages of transmission of the Novel Coronavirus:
• Stage 1 – Imported Cases (People with travel history). This includes cases usually from people who had travel history to an already corona affected country.
• Stage 2 – Local Transmission (Transmit virus usually to friends or family member). This includes those cases from people who have brought the virus from other affected countries and transmit it to people living nearby them.
• Stage 3 – Community Transmission This includes those who are not having direct contact with an infected person or not having any travel history to any affected countries yet he/she reports corona positive thus affecting many others around him/ her.
• Stage 4 – Epidemic This is the last and the most fearsome stage as the disease becomes an epidemic in a country with large no of cases spreading across the country and the rising number of deaths with no clear stopping point. China is a perfect example of this situation.
Legal aspects: Constitutional framework
As we know, The Constitution of India is supreme and consider as a “skeleton to guide”. Every passed act derives its validity from the Constitution itself. Any provision or act which is in contravention with the articles mentioned in the constitution is considered to be “void ab initio”.
But article 256 of the Indian constitution grants powers, which deals with the duty of the state and the union’s executive power and also extending the power of Union of giving required instructions to the State as may appear to the Indian Government to be necessary for the purpose. And this lockdown for 21 days announced by the prime minister is valid in this manner as all these are done to protect whole India from the deadly contagious disease and same recognized by the government and prioritise the interests of society at large and suspending some of the rights of the individual for the benefits of the general public. And it is a well-known fact that this pandemic is affecting every country and India as a whole and the declaration of lockdown was to prevent the life of the people
. Here the Union, the state and the citizens came along and decided to voluntarily waive their right to movement and restrict themselves in certain boundaries to fight against this pandemic disease i.e. Coronavirus together and it is completely valid as it is for the welfare of the society. And in Smt Ujjaim bai vs state of UP, it was held that Fundamental Rights are inviolable except under certain conditions. The rights are placed in Part III of the Constitution, which is regulated ‘Fundamental Rights”, and the conditions under which these rights can be abridged are also indicated in Part III. Briefly stated, the conditions are that they can be abbreviated only by a law in the public interest or to achieve a public purpose.
1. Tracing patients: Surveillance vs Right to Privacy. The right to life and personal liberty is most basic of all our rights and gives meaning to our very existence. Every person comes into the world with a right to his person which has the freedom of moving and using it at his own will. This Fundamental Right is guaranteed under Article 21 of the Constitution of India, which states “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
Right to life as guaranteed under article 21 of the Constitution of India also includes the right to health and states being the duty bearer to protect the health and wellbeing of its people. The right to health also has its reference in Article 38 – Social Order to promote the welfare of the people under the constitution of India
. It is also stated in Section 2 of Epidemic Law that authorizes a state to inspect people and segregate suspected patients. Measures and procedures for the check-up, vaccination, and vaccination of persons, including their segregation in a hospital, temporary accommodation, or otherwise can also be taken.
“necessitas non habet legem” – necessity knows no law.
In the time of Pandemic, we should not lose vision of the inventive capacity of the law to maintain its significance. Necessity is a doctrine which ties the gap between what the law allows the government to do and the government’s actual response at the time of emergency. Restricting the free movement of the citizens of India and to assemble peacefully in the territory of India, guaranteed under Article 19(1)(b) and (d) of the Constitution of India. The framework of the said laws imposing restrictions have been curtailed to maintain public order and in the interest of the general public. Limiting some of the rights of an individual for the legitimate aim to protect them from this deadly virus is itself a need of the nation right now.
2. Quarantine vs Right to freedom of movement
The consequence of law which curtailed individual freedoms guaranteed by Article 19 would be required to answer the tests of reasonableness stated in clauses 2 to 6 of Article 19 and the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does not amount to an unreasonable restriction within.
All citizens of India guaranteed with protection of certain rights such as Fundamental rights “to move freely throughout the territory of India” and “to assemble peaceably” which guaranteed under 19(1) (d) and Article 19(1) (b), respectively.
Quarantine being a restriction on free movement and assembly of people prima facie violates fundamental right mentioned in Article 19 of the constitution of India. However, Article 19 (3) states “Nothing in subclause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order”. Likewise, Article 19(5) offers the state power to make such laws in the interest of the general public.
The UN Charter and International law principles also implied here as India being party to these which states that “Member states have the sovereign right to implement their health policies, even if this includes the restriction of movement of people. Article 3 of the International Health Regulations (IHR), 2005 lay down rules for implementation of quarantine, ensuring it to be respectful of the dignity, human rights and fundamental freedoms of individuals.
Quarantine includes the restriction of free movement of individuals, or separation from the rest of the population, of healthy persons who may have been infected, with the objective of monitoring their symptoms and ensuring early detection of being infected.
And Epidemic Diseases Act, 1897 empowers the government to provide better prevention of the spread of dangerous epidemic diseases. Any state government, when satisfied the test of reasonableness i.e., any part of its territory is exposed to an outbreak like coronavirus, may authorize all measures, including quarantine, to prevent its spread. This is the main legal defence of the government to combat this situation of crisis.
“Desperate times breed desperate measures.”
Quarantine, across the world, is proving to be the best bet in the containment of Coronavirus disease and the same is prescribed by WHO. It might be interfering with our liberty but such a reasonable restriction is even permissible under our Constitution itself in the interest of general public and order, it is also our duty as a citizen to cooperate with the government and help to break the chain of infecting coronavirus by being at indoors.
Statutory provisions involved
It is clear that no single law can effectively control the present coronavirus outbreak. It is this reason that there are various provisions of Indian Penal Code (IPC), Criminal Procedure Code (CrPC), the Epidemic Diseases Act and the Disaster Management Act (DMA) is being invoked to govern the current outbreak situation.
3. Penal provisions needed for criminally negligent patients and authorities While dealing with an emergency by the outbreak of a dangerous viral disease, the state may seek the support of its citizens to combat coronavirus. If the desired support is not forthcoming, a regulation may be imposed. For example, Section 144 (Cr.P.C.) empowers the administration to enforce restrictions on the personal liberties of individuals to prevent injury or danger to human life, health, and safety or disturbance of public peace. And section 4 of the Epidemic Diseases Act includes a protection clause that gives state immunity such that “no suit or other legal proceeding can be brought against any person for anything done or in good faith intended to be done under this Act.”
Failure to comply with such restrictions constitutes a punishable violation under the following sections of the Indian Penal Code, 1860.
There are these statutory provisions which direct the authority during this pandemic namely,
The Epidemic Diseases Act, 1897,
The Indian Penal Code, 1860.
The Disaster Management Act, 2005 and
Code of Criminal Procedure, 1973.
The Epidemic Diseases Act, 1897
Section 3 of this Act puts light on the penalty that can be given for potential violations of government order of lockdown. As per this provision, the punishment is given when a person violates any regulation or order made under the Act. The quantum of punishment is recognized under Section 188 of the Indian Penal Code, 1860.
Indian Penal Code,1860: The relevant sections of IPC during this pandemic are Section 188, section 269, section 270, section 271.
i. Section 188 deals with disobedience to the directions promulgated by a public servant, the kind of noncompliance that is most likely to take place during the time of the outbreak and emergency i.e., disobedience which tends to cause danger to human life, health or safety or causes or tends to cause riot or disturbance will be punished with an imprisonment term up to 6 months or a fine up to 1,000 rupees or both.
ii. Section 269 covering negligent act likely to spread infection of disease dangerous to life, which will be punished with an imprisonment extendable up to 6 months or fine or both.
iii. Section 270 covering malignant act likely to spread infection of disease dangerous to life, which will be punished with imprisonment extendable up to 2 years or fine or both.
iv. Section 271 covering disobedience of quarantine rule, which will be punished with imprisonment extendable up to 6 months or fine or both.
The Disaster Management Act
The purpose of this act was to bring to a situation such as an earthquake, flood or fire rather than a disease like COVID-19. However, the Home Ministry on 14th March declared the Coronavirus outbreak as a “Notified Disaster”, thus, bringing into play the provisions of the Disaster Management Act.
Chapter X of this act exclusively talks about offences and penalties.
Section 51 (b) of this act states that whoever, without reasonable cause, refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act. This provision has two facets- Firstly, it is for the persons who leave their homes for nonessential work. Secondly, it is for the persons who are infected from the virus but run away from the isolation ward. Those will be punished with imprisonment of a term up to 1 year or fine or both and can be extended to two years looking at the severity of the offence.
Law to impose a penalty on people spreading misinformation
Section 54 of this act includes punishment for false warning. The section is relevant in present conditions as if a person create or forward fake news and information about coronavirus with an intent to create chaos through social media platforms will be punished with imprisonment of a term up to 2 years and also with fine or both.
This coronavirus is said to have come to India from foreign countries and it must be addressed jointly by the whole nation without internal geographical restrictions and conflicts. As almost all the fundamental rights, right to freedom of movement, right to assemble peacefully right to privacy and various other fundamental rights were practically deferred during nationwide lockdown. But all these are done to protect the public from the deadly virus and government recognized to prioritise the interests of society at large and suspending some of the rights of individual for the benefits of the general public. If we look closely to the need of the lockdown amid an outbreak of coronavirus, we can draw that there was a legitimate aim of the state to impose the lockdown to protect the general public from the contagious virus and protecting the nation from this outbreak. Difference in steps taken by different authorities created confusion and lawlessness and cause panic among the general public. I believe government measures of social distancing under the nation-wide lockdown to prevent the spread of the contagious virus is appreciable and the only way to combat the spread of coronavirus.
Unveiling 103rd Parliamentary Standing Committee interim report on functioning of virtual courts
Technology is an intimate adjunct to the rule of law. Technology giving rise to a changeover, rather than simply automating conventional processes. Process improvement through mechanisation is a primitive first step. Technology in the judicial system needs to unfurl its true potential; today, blockchain artificial intelligence, algorithms and the technology of command have the capacity for calling attention to a fundamental transformation of the judicial process, dispute containment, ensuring only those conflicts requiring judicial resolution enter the court system.
The concerns have begun to surface. The spokespeople of Bar showcased the flaws as to why the virtual courts cannot be scrutinised as a substantial stopgap for regular courts. The Committee opined three specific magnitudes scilicet access divide, connectivity divide, skill divide. A member of Committee retorted the assertion of digital divide, i.e. exclusion of advocates dwelling in rural areas. In Swapnil Tripathi v. Supreme Court of India 2018, live proceeding was permitted. The Committee persuades the judiciary to speculate solutions viz mobile videoconferencing to licence advocates. Becoming ignorant towards finances to improve the judicial system at lower levels, there is a need to make availability of finances because it is subordinate courts which form the basic structure the contact of the common man and justice occurrence traces equity unless the hierarchy is bound to crumble.
“Vision without execution is hallucination”
—Thomas Alva Edison
COVID-19 descended without a warning, as many pandemics do as history tells us. Access to Justice cannot suffer a lockdown whatever be the circumstances; the criminal justice system can- not function without courts. The courtroom is a service liberating the witnesses meant to give testimony, Clients put out their confidence, Contracts get negotiated, Judges hang down their judgements, and Contracts result in legislation delineating statute. No doubt the British system of administration was superfluous but it has some gross deformities in context of adhering in In- dian Judicial System and has outnumbered repercussions.
Consider the most fertile and dangerous embodiment of disillusionment. Our minds can flip from defending the facts we know into a mode of tearing up the reality.
Taking cognizance of the same, on September 11, 2020, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (Committee) after taking inputs from key stakeholders and best practices across the globe presented its interim report on “Functioning of Virtual Courts/Court Proceedings Through Video Conferencing” (Report) to the Hon’ble Chairman of Rajya Sabha.
How do we conceive of technology and what we can see as the role of technology in? It must be towards fortifying fundamental values of human dignity and equality; our court procedures are just too tardy, too expensive, and unintelligible to common citizens. Technology is an intimate adjunct to the rule of law. Technology giving rise to a changeover, rather than simply automating conventional processes. Process Improvement through mechanization is a primitive first step. Technology in the judicial system needs to unfurl its true potential, today blockchain artificial intelligence, algorithms and the technology of command today has the capacity for calling attention to a fundamental transformation of the judicial process, Dispute containment ensuring only those conflicts require judicial resolution, enter the court system. Dispute avoidance facilitates those processes which ensure that a dilemma does not reach the stage of an animosity. Disseminating knowledge about privileges and remedies available, so as to entrust citizens & Emphasising on virtual courts, and the future of technology. While Design structure stimulating technology is required to bolster the ambit of courts to implicate dispute avoidance and to endow dispute containment by the courts to mediation and foster dispute resolution. The UK civil justice council report proclaimed one’s incapable to do this would be a fluoride element in the law is asking when someone introduces fluoride into the water and stop to decay. So we’d be able to stop the decay of the system, and that would be a fluoride element in the law. Forthcoming justice that requires all information & data findings of the courts, as well as court proceedings themselves, should be understandable to non-lawyers. Paradoxically The Indian legal System rolled out virtual hearings by the dint of Article 142 of Indian Constitution on 6th April 2020 besides Turkey, Canada & Italy.
General Concern Surrounding Virtual Courts
The concerns have begun to surface. The spokespeople of Bar showcased the flaws as to why the virtual courts cannot be scrutinized as a substantial stopgap for regular courts. The Committee opined three specific magnitudes scilicet access divide, connectivity divide, skill divide. A member of Committee retorted the assertion of digital divide i.e. exclusion of advocates dwelling in rural areas. In Swapnil Tripathi v. Supreme Court of India 2018 live proceeding was permitted. The Committee persuades Judiciary to speculate solutions viz mobile videoconferencing to license advocates. Becoming ignorant towards finances to improve the judicial system at lower levels, there is a need to make availability of finances because it is subordinate courts which form the basic structure the contact of the common man and justice occurrence traces equity un- less the hierarchy is bound to crumble. If the efficient sub- ordinate judiciary is built, the amount of reducing the dependency on High Courts will reduce or limit their burden. The National Judicial Data Grid can be taken up for a 360-degree assessment of judicial officers not just in the terms of the cases they dispose but also how far the courts incorporate the ICT governance system. Clasping Technology becomes a major consideration as the majority of the advocates are not well versed. Specialized Course needs to be entertained to swap with digital platforms.
Poor Connectivity leading to glitches & crashing of systems. In the middle, both the ends have better connectivity that will facilitate better video conferencing. The need for good infrastructure is like the pre-requisite of a healthy body for a healthy mind. It is absolutely essential that there is an atmosphere conducive for good work and an individual needs to refurbish skills. Delay in justice delivery system or the judicial process is a very well-known problem in India, which is yet to overcome, it’s austere.
One ought to surmise that for a law or a penal provision to play a role of deterrence the fallout of a criminal trial in the shape of its final verdict and an actual feat of punishment on the censured is equally crucial that of the gravity of the retribution all this has to be rendered before the public memory fades. Halt and technicality are inoperative in civil actions alone. The condition is not better in criminal justice. Many criminals are never apprehended in contrast to corruption, favouritism.
The most efficacious mechanism to battle docket explosion with the utmost accountability is to unravel commercial disputes of an international nature. Expanding virtual courts becomes the prerogative. Certain laws have to be amended to legalise Virtual Hearings. The peculiar taking of things towards judicial administration heads back to the primary importance of rendering justice between man and man via virtual courts to administer distributive justice as it redeems time. Evaluating evidence becomes necessary to decipher conflict between the opposition. The transformation of handling witnesses, adversaries recoups both litigants & Courts time, undue penny too as the concept of speedy trial falls within the ambit of Article-21 is an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution Kartar Singh v. The State of Punjab. The common or mediocre ones that cannot even solicit the justice availed just because of financial deficit becomes a depreciating asset of their life toiling or haggling with the righteous intentions. Judiciary by the very nature does not have a majoritarian impulse. The attacks on the legal fraternity are out of the technology.
In furtherance to the various concerns received by the stake holders and the adverse prevailing situation owing to the on-going pandemic, the Committee also proposed certain recommendations in order to go on efficiently with the justice delivery system even after the pandemic and keep this avenue open for life long.
Some of the key recommendations included; (a) VCs should function in all the Courts even during non-pandemic time, with the consent of all par- ties for certain categories of cases like appeals etc. and final hearings where on- line virtual hearing would be sufficient. Transfer of certain cases from regular courts to VCs will reduce the pendency of cases. (b) A full-fledged VC should be piloted. This would enable the systems to be tested/ refined and further assist the judiciary in identify- ing the cases best suited to VCs. Petty cases should possibly be the first set of cases that may be disposed easily and quickly. (c) VCs may also be extended to cover arbitration hearings, conciliation and summary trials. If national and international arbitrations are allowed to be conducted through VCs, there will be hardly any requirement for real time travel to distant locations. (d) Further, VCs can be extended permanently to various appellate tribunals such as TDSAT, IPAB, NCLAT etc., located across the country which do not require personal appearances of the parties/ advocates. Permanent VCs can also be established for hearing matters relating to administrative and other tribunals at the time of final hearing.
The committee also took into consideration various infrastructural & training requirements that would be necessary to be taken up in order to be well equipped with the technology. The committee recommended the need for increasing broadband access across the populace by timely implementation of National Broadband Mission by The Ministry of Communications. Prevalence of tech brings concerns regarding the data safety and hence the committee also recommended that Ministry of Law and Justice and Ministry of Electronics and Information Technology should address the data privacy and data security concerns while developing an indigenous new platform for India’s judicial system. The said system could leverage block chain technology to improve reliability of evidence and security of transactions and also case files. The report also based its focus on Improving the quality of courtroom technology to overcome the negative impact on advocacy. Further, a study of courtroom design should be commissioned and customized software/ hardware to facilitate VC should be developed.
All such recommendation would go defeated if proper training is not given to both judges as well as advocates. So, in order to be well versed and adopt this technology in long run, the committee also addressed the need of training and opined that Conducting training and awareness programmes in all court complexes across the country needs to be taken. Along with this, Introduction of a computer course as one of the subjects to train future lawyers on digital platforms should be considered by Bar Council of India, so that the upcoming lawyers can be well equipped with digital justice.
Though, the present Report is only an interim report made by the Committee to bring forth the issues being currently faced by the Indian judicial system. While we await the Committee’s conclusive recommendations as per its final report, it seems that the Re- port has taken a holistic approach towards facilitating VCs and at the same time brings substantial judicial reforms. We are sure of that fact that, the adaptability of technology will not only act as an asset to the justice delivery system but proper implementation of the same will also reduce judicial stress of overburdened courts as well as human wealth.
A jailbird’s right: Understanding India’s legal paradigm apropos of rights of the captured midst Covid-19
The Model Prison Manual, 2016 scrutinises the guidelines for governing the administration of prisoners; these guidelines are framed to maintain the conformity in rules and norms for the prisoners throughout the country.
India also has an obligation towards rights of the prisoners as per the international laws and convention. In the 75th Session, 2038th meeting of the United Nations Human Rights Committee concluding observations were adopted by considering the Report of Maldova, adhered on 18th and 19th July 2002.
Amidst this Pandemic COVID 19, the situation is so catastrophic and chaotic that WHO has declared this undetectable pandemic as public health emergency of International concern.
In the absence of any vaccine or medical treatment the only way to restrict the escalation of this disease is to follow and obey the social distancing norms. But proper implementation of social distancing norms is not plain sailing for any country.
In the light of status quo among all these chaos and complications, one of the section which is worst affected and neglected are the Prisoners.
Condition of Prisoners and Prisons
For Indian prisoners in the absence of proper demographic database of prisoners, slow operation and functioning of judiciary, poor infrastructure and overcrowding in prisons and due to various other reasons this unprecedented pandemic acted as a flawless tempest or ticking bomb. Therefore it’s imperative to scrutinize the rights available to prisoners who are locked inside the prisons.
The problem of overcrowding in prisons is one of the major issues for the prisoners during this pandemic as social distancing seems completely missing in prisons. From the year 2008-2018, Indian prisons had an occupancy rate of 117%, which means there are 17% more prisoners than the capacity of prisons. As per the report of National Crime Record Bureau, Ministry of Home Affairs (Prison Statistic 2008) the capacity of prisons to hold the inmates is 3,96,223 while the number prisoners who are locked inside the prisons are 4,66,804 in number which means that there are 70,581 more prisoners than the designated capacity.
The first thing is to consider whether Right to proper healthcare facilities is part of Fundamental rights or not. In the judgement of Paschim Bangal Khet Mazdoor Samity & Others v. State of West Bengal & Others, Supreme Court of India clearly stated that right to proper healthcare facilities is an integral part of right to life which is mentioned in Article 21 of Indian Constitution. Now it is important to scrutinize whether Right to proper healthcare facilities which is an important part of Fundamental Rights is applicable to prisoners in the similar way as it’s applicable on an ordinary citizen.
In the judgement of Charles Sobhraj v. The Superintendent, Central Jail, Tehar, New Delhi, The Supreme Court of India clearly mentioned that all the fundamental rights which are available for an ordinary citizen is available for a prisoner in the same way with slight diminution because the latter is in prison. It was also explicitly mentioned that the prisoners should be provided with proper healthcare facilities and failure to do the same would be considered to be a violation of fundamental rights and involve legal remedy.
Apart from the Judicial Outlook, there are various other legal provisions available for the prisoners which include The Prison Act, 1894 and Model Prison Manual, 2016.
Section 4 of The Prison Act, 1894 includes the provisions for sanitary and hygienic accommodation of prisoners inside the prisons. Section 7 of the act has the provisions for safe and proper custody of all the prisoners who are excess in number and are kept in temporary prisons. This section specifically has provisions to avoid overcrowding in the prisons during the outbreak of any epidemic or during other times as well.
The Model Prison Manual, 2016 scrutinizes the guidelines for governing the administration of prisoners; these guidelines are framed to maintain the conformity in rules and norms for the prisoners throughout the country. The Manual also has a proper framework and guideline for the prisoners during the time of outbreak of any epidemic or infectious disease. It has various provisions like creation of isolated and segregated sheds, treatment of infected barracks and clothes etc. Chapter V includes guidelines for Management of prisons in custody, Chapter VI has provisions for the proper maintenance of all the prisoners, Chapter VII has guidelines for medical and healthcare facilities and many other important rules and guidelines for the proper management of prisoners.
India also has an obligation towards the Rights of the prisoners as per the International laws and Convention. In the 75th Session, 2038th meeting of the United Nations Human Rights Committee concluding observations were adopted by considering the Report of Moldova, adhered on 18th and 19th July, 2002. It specifically mentions that if there is violation of right to proper healthcare facilities during any pandemic and if state fails to take care of their prisoners during the outbreak of some contagious disease then, it would be considered as violation of Right to life mentioned in Article 6 and Right to Liberty mentioned in Article 9 of ICCPR, 1996 (International Convention on Civil and Political Rights). India is one of those countries who have signed as well as ratified the ICCPR. Therefore India has a legal obligation to take preventive measures to stop the spread and escalation of COVID-19 in prisons.
Steps Taken by the Government
The Government of India has also taken measures to protect prisoner’s right amid this pandemic. A suo moto cognizance has been taken by the Supreme Court of India for protecting the rights of prisoners considering the over-crowded condition of prisons. The Supreme Court had directed the government of all the States and Union Territories to grant Parole to the prisoners who charged for minor offences.
Apart from it Segregation cell and Isolation wards are being created at many places inside the prisons, also to avoid overcrowding Interim Bail is also been provided to the undertrials in many states including Maharashtra, Madhya Pradesh, Uttar Pradesh etc. In many states the government has also put various restrictions on the visitors and relatives who come to meet prisoners.
States like Kerala conducted awareness drives regarding COVID 19, Social Distancing, preventive measures etc. These drives helped prisoners to know about the disease so they can adopt preventive measures against the spread of this disease.
This Deadly pandemic COVID-19 makes us realize the loopholes in the implementation of laws and the catastrophic conditions of not only the prisons but also the prisoners. The problem is not just limited to lack of proper legal framework but also in the proper implementation of existing laws and conventions. Thus there is an urgent need for a better legal framework, thoroughgoing surveillance and proper implementation of existing laws and policies for the prisoners, so that the ongoing situation can be healed and made better and we are well prepared for such pandemics in future.
UN Security Council on protecting people with disabilities in humanitarian emergencies and armed conflicts
The children with any kind of disability also face problems in attending schools, unlike other children present there. For example, in the case of armed groups’ attack on various communities in the Central African Republic in the year 2013 to be particular, it was documented that at least 96 of the disabled people were unable to escape when these attacks were made on their houses.
The UN Security Council passed a resolution on 20th June, 2019 to provide protection to people suffering from any disability during armed conflicts and to ensure that they have proper access to humanitarian assistance. This was the first time the Security Council had dedicated an entire resolution to the people with disabilities who face various challenges in armed conflicts, Having said that the major goal was to provide them with a voice in decisions regarding humanitarian actions. It was an important action for the group which was often forgotten during humanitarian emergencies.
Although the impact of this particular resolution depended on how well was it executed in reality but it again reinforced and uplifted the idea that there is an absolute responsibility to protect all innocent civilians during armed conflicts, the UN agrees with the fact that the effect of conflict on people with disabilities is considerably higher and they have to be protected from the impact of war. This move was welcomed by everyone which was followed by extensive advocacy from the disability groups as well. If we refer to the statistics given by the World Health Organization, it clearly points out that 15% of the World’s Population is disabled with some or the other form of disability.
Amongst all these approximately 9.7 million have been forcibly displaced as a result of armed conflict and persecution. In times of armed conflicts or situations of humanitarian emergencies there are some problematic issues that people with disabilities face which includes difficulty in getting access to basic humanitarian needs such as food, medical assistance and sanitation, often issues like abandonment from the family also arises.
The children with any kind of disability also face problems in attending schools unlike other children present there. For example in the case of the Armed Groups Attack on various communities in the Central African Republic in the year 2013 to be particular it was documented that at least 96 of the disabled people were unable to escape when these attacks were made on their houses; they were left abandoned and 11 of them were killed.
Having said that we again come to the conclusion that this resolution basically emphasized on the immediate need for the states to end impunity against the criminal acts committed on the innocent civilians especially the one’s who were disabled, to make sure that every civilian has an equal access to justice and all the available remedies as in Yemen, South Sudan, Lebanon, Myanmar, Greece people with disabilities have expressed their concern over difficulties they face in navigating the uneven terrain to get access to basic necessities like food and medical supplies. The Resolution recognizes the Security Council’s serious concern regarding the disproportionate impact of armed conflict on persons with disabilities and proposes actions to address the barriers faced by the world’s largest minority group. The resolution passed by the Security Council addresses many of the challenges that have been talked about above which includes preventing violence and abuse against all civilians including people with disabilities.
Additionally the resolution passed also called for the member states to ensure meaningful participation of persons with disabilities and the organizations that represent them in decisions related to humanitarian actions, conflict prevention, reconstruction and peace building. The said resolution also urges it’s member states to comply with the said obligations under the United Nations Convention on the Rights of Persons with Disabilities where the Article 11 of the same convention states that “In accordance with their obligations under international law including International Humanitarian Law and International Human Rights Law, all necessary measures are required to be taken to ensure the protection and safety of persons with disabilities in situation of risks, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters”.
The resolution passed was a unanimous decision but some permanent members of the security council expressed their concern regarding creating new legal obligations under international law and exceeding the scope of the mandate of the council, Gennady V. Kuzmin of the Russian Federation stated that Russia “shares humanistic principles and tasks to alleviate the plight of persons with disabilities in conflict” but “firmly upholds our position that all social groups should be equally protected during armed conflict as stipulated by the international law. Specific needs of one category of population should not come at the cost of and with prejudice to another category.” The council, Kuzmin explained, “it should not invent any new international legal concepts that are allegedly aimed to fill ‘gaps’ in the protection regime established by the Geneva Conventions” and not “get too preoccupied with devising new categories of individuals who should need specific protection under the international humanitarian law.” Having said that, even Yao Shaojun of the People’s Republic of China cleared his stand that the issues related to the people with disabilities “should be dealt with in full observance of all Council resolutions on the protection of civilians” and that “the countries concerned must shoulder the primary responsibility of assisting such persons, with the United Nations and others playing a complementary role”.
Now if we go through the Article 25 of the U.N Charter, it obligates the states to “accept and carry out” decisions taken by the Security Council but there is no clear understanding as to what type of language indicates that a provision in a security council is of a obligatory nature. If we carefully analyze the provision that was explained in context to the 1971 Nambia Advisory Opinion by the International Court of Justice it says that when a resolution is passed by the Security Council, before jumping down to the conclusion whether it has any binding effect or not, it’s language should be carefully looked into. Taking into account the provision of Article 25 the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council. Well, as explained by John Bellinger, the former legal advisor of the United States Department of States there are three factors that indicate whether a resolution of the Security Council has a binding effect, these are:-
Findings which state that there is a threat to International Peace and Security
Statement which clears that the Security Council is acting under Chapter VII of the U.N Charter Use of the verb “decides” in any operative paragraphs has a binding effect
Nonetheless this resolution did not fall under either of these categories. However Resolution 2475 could inform how the Security Council drafts future resolutions authorizing peacekeeping operations, which often fall under Chapter VII authority.
Lastly it is to be said that the resolution passed by the Security Council is also the result of the extensive efforts that the civil societies and organizations representing disabled people had put in for a very long period of time. Nujeen Mustafa, a Syrian activist who suffers from cerebral palsy and uses a wheelchair for her assistance, had put forth her journey as a refugee who flew from Syria to Germany; she indeed was the first woman with a disability to brief the Security Council. No matter how remote the goals of this resolution might sound, it is an extremely important and celebrated step and a landmark resolution for people with disabilities taken by the UN Security Council. It is a clear political commitment towards mainstreaming disability across all UN pillars, including peace and security.
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