Connect with us

Legally Speaking

The case of SC gag order against Sudarshan News

One of the arguments advanced by the intervenors is that ‘hate speech’ is punishable under Sections 153A
and 153B of the Indian Penal Code, Section 3(i)(x) of the SC/ST Act and Section 5 of the Cinematograph Act.
Without getting into the details of the said provisions and examining whether the content falls under their purview or not, what is to be seen here is that these provisions are punitive in nature, not preventive.

Siddharth Nayak, Vijay K Tyagi & Krishnagopal Abhay

Published

on

There has always been a huge debate on this among various writers. Locke provides an interpretation to this as well. He sternly believes that ideas do require labour. Well we can’t expect that an idea to invent a bulb was without an extreme labour being done by Thomas Edison.

The evolving nature and spectrums of the mode of data distribution by the fourth pillar of Indian Democracy has given rise to dynamic challenges for the existing legal framework to control and regulate. Media being the fourth pillar is indeed playing a pivotal role in the society by trying to educate masses. The freedom of press ensures that citizens are vigilant, well informed, and therefore, can discharge their role in a democracy by fixing accountability.

Freedom of Press and Right to Know

The public’s “right to know” has become an increasingly popular political ideal in India. The essence of this right, for both the public and the press, has gained significance and acquired a new meaning in the contemporary era. Although the Constitution does not expressly guarantee the public the “right to know”, an increasing number of constitutional scholars argue that it is an implicit right guaranteed under Article 19 of the Constitution and by the general principles of constitutional democracy. Freedom of press constitutes not only the individual right of the owner of the news publications, the editor, or the journalist; it also includes the right of the citizens to be informed. It can be forcefully argued that the tenets of Article 19 offers within its ambit, the ‘right to know’ without any constitutional, statutory or executive frame- work to restrict or regulate the same before the cause of action arises. Comparatively speaking, the judicial discourse had long evolved since the days of classical Greek and Rome or the 16th century France which staunchly believed in prior restraints along with post- facto substantive measures.

Thus, freedom of press flows from the citizens’ right to know, which is conceived to be paramount. The Hon’ble Supreme Court of India, through several of its decisions on fundamental rights, has developed this jurisprudence. The courts have always been of the opinion and champion of the concept that censorship, since it necessarily restricts freedom, has always been and will continue to be unpopular with those who, from principle, perversity or for profit, insist on unbridled freedom.

Here, as the journalist is claiming that his show is based on his investigation and analysis of data avail- able in the public domain on the selection of students in UPSC Civil Services Examination, it is not only the journalistic freedom which is restricted by the gag order, but it’s also affecting the people’s right to know about the pattern of selection of students in UPSC-CSE.

Writ Jurisdiction when Alternative Remedy is Available

The petitioners approached the Court by way of Article 32 of the Constitution of India, which allows the citizens to approach the Apex Court for enforcement of Fundamental Rights directly. It is settled law that this jurisdiction can only be invoked in the absence of a redressal mechanism or alternative remedy, unless there are compelling circumstances warranting interference of the constitutional court for vindication of fundamental rights. The doctrine of exhaustion of remedies also cements this. The powers conferred and vested with the Apex Court under Article 32 is too infallible to adjudicate upon such issues as well (emphasis on the word ‘adjudicate’).

Rule 6 of the Cable and Television Networks (Regulation) Rules has adequate provisions which disallow the running of any programme, which is an attack on any religion, defamatory or communal. As noted by the Hon’ble Supreme Court in its order, if a show is found to be violative of the said rule, sanctions under Sections 19 and 20 of the Cable and Television Networks (Regulation) Act, 1955 are imposed. A bare reading of Sections 19 and 20 makes it amply clear that such sanctions/prohibitions will come from “any authorized officer” or the “Central Government” respectively. The Court, after mentioning the previous sections, took it upon themselves to exercise a power which must be kept outside of their reach.

One of the arguments advanced by the intervenors is that “hate speech” is punishable under Sections 153A and 153B of the Indian Penal Code, Section 3(i)(x) of the SC/ST Act and Section 5 of the Cinematograph Act.

Without getting into the details of the said provisions and examining whether the content falls under their purview or not, what is to be seen here is that these provisions are punitive in nature, not preventive. Under no stretch of imagination can these be used by the Apex Court to issue a blanket order restricting the Freedom of Speech and Expression, which is guaranteed by Article 19(1)(a) of the Constitution. These provisions come into picture after the content is delivered/published, and if the person is found guilty, they shall be punished as per law. For the sake of argument, even if the Court interprets the said provisions to be preventive as well, it is well settled that Fundamental Rights will overpower statutory provisions if they are at loggerheads.

That right is not absolute; it comes with restrictions laid in Article 19(2). It is well settled that before restricting anyone’s freedom under Article 19(1)(a), the “speech/ expression” has to be examined; and if it passes the tests laid in Article 19(2) – post-examination – it may be restricted. One of the issues with this blanket gag order is that it was passed based on a “prima facie” view, formed after looking at some snippets of the show provided by the petitioners, even when the Counsel for Sudarshan TV requested the Court to watch and con- sider the series in toto. Quite interestingly, the Court did not enter the domain of Article 19(1)(a) vs. Article 19(2), but even if they had, it is not within the reach of the Court to pass gag orders invoking the restrictions laid in Article 19(2).

Notably, the constitutional text of Article 19(2) states that the State might make laws to restrict the right guaranteed under Article 19(1)(a). Firstly, it is the ‘State’ which can limit the right and secondly, it has to be done by bringing a ‘law’. In a long catena of judgments, the Hon’ble Apex Court has time and again held that judicial functions of the Judiciary are not under the ambit of “State” as per Article 12 of the Constitution. In the landmark judgment of K.A. Abbas vs The Union of India, the Hon’ble Apex Court held that pre-censorship is allowed as per Article 19(2), but the same has to be done by statutory bodies which are formed by the “State” as per law. It was also laid that statutory bodies will have to lay guidelines and clearly express what would not be permissible. The Court, while getting into the debate of free speech and hate speech, fails to observe that no such guidelines have been formulated as of now. The apex court could have directed the appropriate statutory body/executive body to con-sider the prior restraint position and take appropriate action instead of venturing into the content editorial domains. No matter how one justifies it, Sr. Counsel Shyam Divan’s submissions that a constitutional court should not enter into the fields of content regulation are legally sound.

In this case, the Ministry of Information & Broadcasting, News Broadcasters Association and the Press Council of India were asked to reply, but the order was passed before they could submit their response. Simply put, no stakeholders – including the judges – could examine whether the impugned show could be termed as “hate speech” before the voice was muffled.

On a petition seeking similar reliefs in Delhi High Court, the Ministry of I&B, in its order dated 9th September 2020 refused to ban the show and stated that if the show violates the Programme Code under the Cable Television Networks (Regulation) Act, suitable action will be taken.

Jurisprudence on Prior Restraint: Bypassing the Statutory Mechanism

Delving into the jurisprudence of Prior Restraint, we shall start with the gold- en words of Mr. William Blackstone which strike at the heart of the current issue:“The liberty of the press is
indeed essential to the nature of a free state”. He emphasized on laying no previous restraints on publication, rather punish the publisher after publication, as per the established law. In Patter- son vs Colorado [205 U.S. 454, 462], Holmes J. of The Supreme Court of The United States, while referring to the cherished First Amendment of the American Constitution stated that it was passed to prevent previous restraints upon publications. Article 5 of the Basic Law for the Federal Republic of Germany and Article 21 of The Constitution of Japan guarantees Freedom of Speech and Expression and prohibit censorship of any kind, categorically that of the Press. In India, there are a plethora of cases which have held that prior restraint orders shall not be passed. While hearing a PIL filed by the NGO Common Cause in 2017 praying for regulating the content of the media, the Hon’ble SC had opined that pre-broadcast or pre-publication censorship is not the business of the Court and that all grievances against objectionable content will be dealt with in accordance with the law of the land after its publication.

The Counsel for the retired civil servants who intervened in the matter had argued that “hate speech undermines free market place of ideas”. Quite interestingly, in a blog, while defending free speech and criticizing blanket gag orders by the Apex Court, he had written: “Prior restraint is considered especially damaging to free speech because it chokes off the “marketplace of ideas” at its very source, and prevents certain individuals, or ideas, from entering the public sphere.” Subsequent to this, he also wrote: “we have been witnessing a disturbing trend where, in place of the legislature and the executive, it is the judiciary that has been taking upon itself the task of regulating, restricting, and censoring speech”. In another blog titled “Judicial Censorship: A Dangerous, Emerging Trend”, the Counsel had vehemently opposed the “trend” where Judiciary is passing gag orders which as per him is outside of the powers given to them by the Constitution of India. We, lawyers, have often been blamed for being biased towards our cause before the bench even though academically and legally we hold contradictory positions. But contradicting oneself with recorded writings is an insult to one’s own intelligence both as an academician and a lawyer.

It was argued that concession could be made in case of “hate speech”, which is distinguishable from “offensive speech”. For the sake of argument, even if we consider that the impugned show comes under the purview of hate speech, then also it has to be dealt with in accordance with the law. In Pravasi Bhalai Sangathan vs U.O.I. & Ors., the Hon’ble SC had laid: “As referred to here in above, the statutory provisions and particularly the penal law provide sufficient remedy to curb the menace of “hate speeches”. Thus, person aggrieved must resort to the remedy provided under a particular statute.” The precedents pertaining to categorization and classification of “hate speech” needs to be settled as well. Hate speech is an offence but dictating ‘prior restraint’ rationale akin to qui timet in the particular instance sets a dangerous precedent.

Observations of the Bench During Proceedings (Related to Constitution of a Committee of 5 Distinguished Individuals)

On Tuesday, in addition to free speech, self-regulation and legal restraint, the Court ventured into issues of ownership models of TV channels, revenue generation and the number of advertisements that the government gives to them. The discussion soon moved to the possibility of constitution of a committee of “distinguished individuals” to frame guidelines for the electronic media. Both the observations are deeply problematic because it’s not the domain of Judiciary to keep a check on the revenue model of media houses. The observation of the commis-be a case of judicial overreach.

Appointing committees and framing of regulations is a legislative and executive function. If someone believes in the idea of democracy, the concept of distinguished/eminent personalities can’t be said to conform with the high standards of constitutional democracy.

Hon’ble Justice Chandrachud observed that a pre-publication restraint is one of the rarest rationales to be exercised under extreme recourse and can take the Court down a slippery slope. The Court expressed its anguish but yet the gag order was not vacated and instead it went ahead with segments of content editorial suggestions. If one were to infer a ‘collateral bar rule’– which prevents any challenges to a court order if the party disobeys the order before first challenging it in court – arising out of such steps in the Indian context, it sets a duty of absolute obedience notwithstanding any constitutional rights un- less the concerned order has been set aside by a higher authority.

To conclude, the Court’s order of prior legal restraint is problematic in light of the availability of an alternative remedy under various Acts and the settled jurisprudence pertaining to the issue. It interferes with the people’s right to know. Moreover, it’s not the domain of Judiciary to keep a check on the revenue model of media houses; and the observation pertaining to the constitution of a commission, in our humble opinion, will be a case of judicial overreach.

Siddharth Nayak is Managing Partner, Atharva Legal. Vijay Tyagi is LL.M, Constitutional Law, Indian Law Institute and ex-LAMP Fellow. Krishnagopal Abhay is a 2nd-year student of LL.B at Campus Law Centre, University of Delhi.

Legally Speaking

Bit by bit to a big leap: India and the ISDS reforms

The need for reforming the ITAs or the system of Investor-State Dispute Settlement (ISDS) is not unique to India. Many developing countries have time and again raised concerns against ISDS and opposed this mechanism, which permits corporations to drag governments into arbitration claiming large sums of money in compensation. Even the European Union and European nations individually are opposed to ISDS in its present form and have proposed reforms including establishing a Multilateral Investment Court.

Published

on

“India’s bilateral investment treaty (BIT) programme is part of a larger trade and investment agenda of the Indian government to boost investor confidence and increase investment flows into and out of the country.”, notes the Law Commission of India, in its 260th Report. However, India’s experience with BITs, since it signed the first one in 1994, has been uneasy, to say the least. The recent decision of an arbitral tribunal in favour of Vodafone holding the Government of India liable to compensate the telecom giant with an amount in excess of four million pounds, has once again brought to fore India’s rather uncomfortable tryst with BITs and Investment Treaty Arbitrations (ITA) regime.

According to the information available on the website of Department of Economic Affairs, Government of India and the United Nations Conference for Trade and Development’s (UNCTAD) Investment Policy Hub, India has signed about 86 BITs along with 14 Treaties with Investment Provisions (TIP). Starting from 2010, India has faced a number of claims pursuant to these BITs with the currently known tally being twenty-five pending disputes. Thus, with an intent to address the rise in claims against the government’s regulatory measures and to reform the dispute mechanism, in 2016, a new model BIT was unveiled by the Government of India. Alongside, India unilaterally terminated its BITs with fifty-seven countries. In 2017, the government of India also set up a High-Level Committee to Review Institutionalisation of Arbitration Mechanism in India, which also mandated to look into the role of arbitrations in matters involving the Union of India, including ITAs and suggest suitable measures for reform.

The need for reforming the ITAs or the system of Investor-State Dispute Settlement (ISDS) is not unique to India. Many developing countries have time and again raised concerns against ISDS and opposed this mechanism, which permits corporations to drag governments into arbitration claiming large sums of money in compensation. Even the European Union and European nations individually are opposed to ISDS in its present form and have proposed reforms including establishing a Multilateral Investment Court.

REFORM PROCESS AT UNCITRAL

To address these concerns the United Nations Commission on International Trade Law (UNCITRAL), in 2017, mandated its Working Group III (WG III) (a) to identify and consider concerns regarding ISDS; (b) to consider whether reform is desirable in light of any identified concerns; and (c) if the Working Group were to conclude that reform was desirable, to develop any relevant solutions to be recommended to the Commission.

Since 2017, states, international organizations, think tanks and interest groups have been convening bi-annually to work towards reforming the extant ISDS. WG III is the first such approach to reforming the mechanism of dispute resolution that has exploded in a very short span of time, without any set rules or framework to contain it. Broadly, four concerns have been identified by the WG III, viz. concerns pertaining to consistency, coherence, predictability and correctness of arbitral decision of ISDS tribunals; concerns pertaining to arbitrators and decision makers; concerns pertaining to cost and duration of ISDS cases, and other concerns.

In terms of solutions, all participants, including governments have made their submissions to the WGIII and some common suggestions have emerged including development of appellate system, prior scrutiny of award, multilateral instruments on ISDS reforms, Multi-lateral Investment Court (MIC), dispute prevention mechanisms etc. Interestingly, some of these suggestions are the same as the reform measures proposed by the High-Powered Committee set up by the Government of India.

INDIA AND THE REFORM PROCESS

India has consistently opposed the extant mechanism and some of the reform measures proposed thus far. Simultaneously, India has been leading the reform process by example. For instance, the model BIT unveiled in 2016, diverges from traditional BITs in so far as it does not contain the often-criticised Fair and Equitable Treatment (FET) clause, has a narrower definition of investment, mandates exhaustion of domestic remedies before initiating arbitration, it provides for an appeals facility and leaves wide scope for regulatory measures to be adopted by the state without them constituting expropriation. Seemingly risk-averse and protectionist in nature, the BIT is, nevertheless, a change in status quo.

Apart from this, the India-Brazil BIT of 2020 offers a new and unique template for dispute resolution under BITs. The new BIT not only completely does away with ITA in favour of State-to-State Disputes Settlement (SSDS), it puts emphasis on dispute prevention. This treaty is particularly important not only because of its paradigm shift from the established dispute resolution mechanism but also for the fact that this change is being led by two developing nations. This aside, reportedly , the government of India is also working on such a legislation, the roots of which lie in India’s experience with BITs. These measures have all been criticised and praised equally by stakeholders; but what prevails remains to be seen.

What is worth noting, however, is that despite such strong emphasis by the Government of India on reforming ISDS, India has been conspicuous by its absence at the WGIII. It is imperative in the light of the measures taken by it that the Government of India become an active participant in the reform process being undertaken at UNCITRAL. More so, since one major limitation of the reform process undertaken there is that it is driven by those who share a common interest in long term survival of ISDS, in one form or the other.

That said, the options being considered in the process may, in fact, bring some modifications to the existing ISDS mechanism. Nevertheless, for more radical reforms it is required imperative that developing nations such as India, Brazil, South Africa, Ecuador, Indonesia who have long opposed the system, take a firm stand and share their ideas on a global platform. Moreover, in the present economic environment, when India is aiming to attract investors looking to move away from China, an apparently protectionist regime, such as the one that India’s proposed measures presents, will require clarifications and explanation. By participating more actively and publicly in the reform process India can assuage any reservations that exist in that regard. Alternatively, such participation can also help India fine-tune its measures to make them more acceptable for the other stakeholders. Either way, need of the hour is that India make its reasons and reasoning behind its big leaps of reforms known, in black and white, to the global community.

India has consistently opposed the extant mechanism and some of the reform measures proposed thus far. Simultaneously, India has been leading the reform process by example. For instance, the model BIT unveiled in 2016, diverges from traditional BITs in so far as it does not contain the often-criticised Fair and Equitable Treatment (FET) clause, has a narrower definition of investment, mandates exhaustion of domestic remedies before initiating arbitration, it provides for an appeals facility and leaves wide scope for regulatory measures to be adopted by the state without them constituting expropriation. Seemingly risk-averse and protectionist in nature, the BIT is, nevertheless, a change in status quo.

Continue Reading

Legally Speaking

The coloniality of modernity

It was around the 1430s that the term ‘modern’ was used in southern Europe’s Romance languages to show the past in poor light and congratulate the present. As for English, Scottish poet William Dunbar is credited for using it first in his poems wherein the word was used to show the present in positive light while remaining tight-lipped about the past.

J. Sai Deepak

Published

on

 In 2002, an interesting paper titled “Early Modernity: The History of a Word” was published in The New Centennial Review of the Michigan State University Press. The paper was authored by Prof. Patricia Seed, then a historian at Rice University, who specializes in early modern and colonial European eras. In the paper, she traced the origins of the word “modern” to the sixth century C.E. (then A.D.) when it was first used in northern Italy. This was when the Roman Empire still existed but northern Italy was conquered and ruled by Germanic Ostrogoths. According to Prof. Seed, the word modern made its debut in the context of architecture when the Ostrogothic ruler of northern Italy encouraged wealthy Roman families to undertake reconstruction of public buildings at their private expense. The outcome was that the new buildings had a different architectural style which distinguished them from those built under Roman imperial rule. Praising the contribution of a particular family for its reconstruction of the Theater of Pompey, the scribe of the Ostrogothic ruler called the family “a careful imitator of antiquity and the noblest founder of modern works” (translation). In this context, according to Prof. Seed, the word modern simply meant “different” without any value being imputed to it, neither positive nor negative.

Subsequently, for a brief period, the word doubled up as a synonym for “new”, thereby bringing in the element of time. In other words, the word modern was not only a reference to the time that something belonged to, it was equally, and perhaps more importantly, a reference to the period it did not belong to. Around the early fourteenth century, it was significantly used in Dante’s Divine Comedy wherein it acted as a synonym for contemporary. Importantly, it was used to compare the present with the past, with the present faring poorly compared to the past. Simply put, the use of modern was a coded criticism of the present.

It was only almost a century later, around the 1430s, that modern was used in southern Europe’s Romance languages to show the past in poor light and congratulate the present. As for English, Scottish Poet William Dunbar is credited for using it first in his Poems wherein the word was used to show the present in positive light while remaining tight-lipped about the past.

The adversarial pitting of the past and the present with the balance tilting in favour of the latter occurred in English in the sixteenth century when modern referred to “someone who takes part in the tastes and cares of his age, and is opposed to all conservatism”. While Prof. Seed’s paper captured the antagonism introduced between the past and the self-congratulatory present by the use of modern, she did not touch upon the relationship between European colonialism, the introduction of coloniality and the code embedded in the word “modern”. To understand this aspect of modernity and its colonial undertones, one has to refer to the literature on decoloniality wherein scholars such as Catherine E. Walsh and Walter D. Mignolo have captured the compound concept of modernity/coloniality, its use by colonizing powers on colonized societies, and their continuing effects on postcolonial societies and the rest of the world.

The literature on decoloniality itself declares that decoloniality was born in response to this all-pervasive Western-normative notion called “modernity” whose hegemonic use by colonizing powers as well as colonialized native elites in postcolonial societies has systematically isolated and ostracized indigenous traditions and knowledge systems in the very societies of their birth. In fact, modern has been used to shame the native into abandoning her traditions and push her into adopting the colonizer’s worldview. So much so, that the word “traditional” is hurled by colonialized natives themselves at native/indigenous worldviews as a pejorative to indicate parochiality and rigidity. This is precisely why decoloniality is indigeneity’s response to coloniality, to take back its identity and to declare its continued existence and validity in the face of an ocean of “modernity”.

The effect of modernity is that native onto-epistemological systems have been “otherized”; they are “alternatives” to the “modern mainstream” and must prove themselves on the anvils of the latter, which they will never succeed at because the coloniality/modernity matrix is designed to exclude indigenous perspectives. Despite its outward proclamations of open-mindedness, dialogue and diversity, the colonial DNA of modernity actively resists and ousts indigeneity. It refuses to accord indigeneity the respect of an equal and uses time as the weapon to question the very relevance of the indigenous point of view. Clearly, modernity effectively represents the weaponization of time by the colonizer who negates and denies the histories and the lived experience of entire civilizations, such as Bharat’s, from the moment of his arrival.

This is what makes decoloniality an active framework, tool, way of life and perspective of resistance and “re-existence”, as Walsh and Mignolo call it. It takes its own contextual shape based on local experiences of hitherto colonized societies which are still dealing with the transgenerational after-effects of colonization through the pervasive presence of coloniality at every turn in every institution.

In the next few pieces, the author shall attempt to unpack these thoughts in greater detail with examples.

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

Continue Reading

Legally Speaking

Pressing priority: Stringent laws for formulation of Intellectual Property Rights in sports law

Published

on

The sports have been considered as a very important part of the country. Various sports are played in-country at the international level. There was a time were sports was considered as an activity but, with the time, sports became a crucial aspect and it also demanded a need for laws related to it.

The main issue that stands with sports is Intellectual Property Rights. The intellectual property rights are very important to safeguard anything from being used by any non- compliant authority. The cases that have been registered in India concerning sports are not seen as much. However, every other country such as the USA has advanced the scope of the sport and is the need of our country.

The legislature, judiciary and the administration, all need to take severe steps to provide stringent legislatures concerning sports. Such legislation which would also provide for the IPR protection to the sports law in the country. This will resolve many issues related to broadcasting, copyrighting and some important rights saved.

AUTHORITIES OF SPORTS IN INDIA

Various governing bodies in India are not governed under the Ministry of Sports of India. the body is BCCI for cricket, Indian Hockey Federation, All India Football federation etc. all the bodies are individual and not concerned with the state. However, in the case of Zee Telefilms v. Union of India,it was considered by the Supreme Court that BCCI denied to a part of the governing authority but, this should not be the case as it is important to have a proper governing authority for the bodies. This was stated considering the importance of sports in the country.

For making the Sports Law a well-framed and a stringent one, it is important to remove the individuality of the authorities. Since there is not a proper code for governing sports in India, The National Sports Development Code, 2011 does the governing. It governs the National Sports Federation of the country. In the case of Indian Olympic Association v Union of India, the validity of the above-mentioned code was upheld by the Delhi High Court.

PREVAILING SPORTS LAW IN INDIA

The Constitutional entry 33 in List II makes it difficult for making sports as a national reform as it puts the sports in the list of the state legislature. At present, sports bodies are said to make rules and regulations for sports. Such teams constitute of some members that take over the authority and take actions over the errors that arise. Strict actions are taken against them.

Such bodies are considered for selecting members for the sports at different levels. The rights related to broadcasting and telecasting is also given by these bodies. This means that not the legislature but, the bodies. This means that everybody makes rules on its own and does not coordinate with each other. This can lead to severe problems and the infringement of the rights by a third party too.

It’s not the sports law that is presently prevailing in the country but, the authorities that prevail over the rules and rules and regulations of the sports. The authorities that are at present are individual and therefore, they are away from the legislations and the governing authorities of the Central Government.

THE NEED FOR IPR IN SPORTS

Every commodity of any activity such as art, sports etc needs branding to increase its value. The branding means that a name, logo, tagline that legally becomes reserved. The reservation is done through IPR laws. The laws provide different kinds of rights such as copyright, trademark and patent depending on the type.

Different kinds of IPR are needed for different sectors of sports. The need forthe patent is for reserving the rights of emerging new records in the field of sports. Similarly, the need forthe trademark is for the players who become successful and derive their team for a sport. The trademarking of such things will increase the loyalty of the viewers too. Designs are important to make sports assets more valuable.

Also, copyrights play a vital role. The broadcasting of sports is an important aspect. This is the way of earning revenue for further development. This also constitutes the main issue in the sports industry because sometimes, the unknown authorities broadcast the matches effecting the contracts of the sports authorities with the channels.

IPR LAWS IN THE COUNTRY: NEED FOR NEW LEGISLATION

Several IPR laws in India act prevail in the country for the different kinds of Intellectual Property Rights. These laws provide for the guidelines and the rules and regulations concerning intellectual property rights. However, some points lag in them concerning sports. The changes needed under sports in the laws are as follows:

The Copyright Act, 1957- the act consists of all the information related to the copyrights, rules, regulations and other essentials. These are not being collectively followed in the sports field and there arises the problem. The amendment can be done in the act adding “sports” as an important definition in the interpretation clause and in the other sections through which it becomes clear about the areas where sports need the copyright.

Trademarks Act, 1999- the changes needed in this act is also similar to that of mentioned for the copyright act.

The other minor acts such as the act of patents and design must also get the amendments done. However, these acts provide for the information regarding these intellectual property rights in general. The increasing diversity of the sports in the country, a separate legislature for implementing these copyrights is needed. The legislature can be implemented to safeguard different aspects of sports.

The legislature can be implemented in the following way:

• The interpretation clause having the definition of all the important terms related to sports.

• The provisions having the procedures to get the rights reserved.

• The items and the procedures related to sports that need intellectual property rights.

• The punishments also need to be mentioned for giving punishments to the people not following the law.

• The miscellaneous part concerning the powers and authorities.

In this way, proper central legislation can be formed that can look after the sports in the country. This will prevent frauds and unwanted consequences.

NEED FOR STRINGENT SPORTS LAW

The laws in India concerning laws are much backward in comparison to laws in the USA, France and other countries. The reason for the same might be less importance given to the legislature of sports and derogatory powers of the authorities. The IPR Laws exist in the country but, they need minor amendments. However, this is not the only backlog that exists. The implementation of the existing laws is also not proper. The reason might be the absence of the single governing authority.

The division of powers to the different authorities make it difficult to implement all the rules in the same way. It is important to have a central legislature that also mentions the powers and limitations of such authorities. This will help in keeping a check over the activities of such bodies. This will ensure that all the authorities are following their duties.

The main impact will on the IPR of sports. The legislation will keep a check about having all the important rights reserved. This will make sports a better reserved activity. Sports in India has made it proud many times and the players give their best. However, sometimes they face the problem due to the absence of the proper sports law.

The Chapter of IPR in the sports law which might include the criteria, compulsions, punishments and every needed step to make sports an IPR oriented area. This is for the assurance of the people who play and who invest money. The major problem in relation the broadcasting will also be resolved after following the minute steps. These steps can bring about major changes that will lead to reformation in sports in the country.

One of the most important feature of IPR in sports law is to prevent Ambus Marketing. The meaning of Ambus Marketing can be clearly drawn out from the landmark case of National Hockey League (NHL) vs. Pepsi-Cola Canada Ltd, where a controversy arose between Pepsi Cola and Coca Cola, where Coca Cola was appointed as the official sponsor of the tournament by NHL while Pepsi has broadcasted an advertisement claiming to be the official drink of the tournament, the judgement states that there can be no claim of passing-off in the present case by Pepsi-cola. Ambus Marketing can be broadly be classified as attacking in a latent way. Therefore there is urgent need to prevent the copyrights and trademark of the owners through proper registrations of logo, brand , marks etc. which are linked with the sporting event

CONCLUSION

The condition of the sports law is not so proper in the country. The authorities that are prevailing in the country are also not concerning the governmental authorities. This means that there is no inclusion of the government in the sports law. the Central Authorities that must be concerned with the sports are not included. This means that making the authorities the governmental bodies is the need of the hour. This is because the rules and regulations they make might contradict with each other and this will never lead to a solution of having stringent laws concerning the IPR and sports.

The need for IPR is much more that can be explained. The problems that are being faced in the present era can decrease the importance of sports in the country shortly. This is because the people whoa re-associated with it might be having some expectations regarding the reservation of their rights. The existing problems are showcasing the other side.

Therefore, the need for stringent sports law is more than the need for the amendments in the present IPR laws. This is because the enforcement of such laws will not be seen in such away before we have a central authority governing it. As soon as the authorities will have a hold above them to show them the right path, the decisions taken by them will be more accurate. The much need for sports law is increasing day by day along with the increase in the problems. Also, when fresh legislation will be drafted, the judiciary will have better look upon the issues of the sports and the amendments to it can be made in the coming future for dealing with the situations along with the time.

“Intellectual-property rules are clearly necessary to spur innovation: if every invention could be stolen, or every new drug immediately copied, few people would invest in innovation. But too much protection can strangle competition and can limit what economists call ‘incremental innovation’ – innovations that build, in some way, on others.”

—James Surowiecki

Continue Reading

Legally Speaking

The US Supreme Court appointment conundrum

Published

on

The United States of America has an intense ongoing debate concerning the elevation of Amy Coney Barrett to the Supreme Court. President Donald Trump’s four-year tenure ends shortly— the voting through postal ballots for instance, has already begun and the results of the elections will potentially be declared sometime next month. In the United States, unlike India (and the UK) Judges are purely political appointees.

Due to Justice Ginsburg’s death, there is now a vacancy on the Supreme Court. Out of the of 8 judges who are presently serving on the US Supreme Court, 5 already are perceived as ‘conservative’ and are Republican appointees, and three are ‘liberals’ and are appointed by the Democratic Party. Of the total nine Justices in the Supreme Court, two have already been appointed by Trump. If Justice Barret’s nomination is confirmed (which barring a moral awakening in the Republican Party, it will most likely be confirmed)— then Trump would have appointed 30 percent of the Supreme Court Justices in a mere four years of his Presidency. With the expected appointment of Justice Barrett, the number would go up to 6. There are four main concerns which her appointment would create.

The first concern that the presence of a majority of conservative judges pose would come in the form of docket control. The Court is quite selective in picking which cases to hear, and on average hears less than a hundred cases a year. For a matter to be heard by the judges, at least four out of the nine judges need to concur that the matter in question involves significant questions of interpretation and therefore merits the grant of a writ of certiorari. If any such matter does not find the concurrence of four judges, the writ of certiorari is cursorily denied. With the appointment of Justice Barrett to the US Supreme Court, there is quite a likelihood that the sharpy divided 5-4 would be a thing of past as the judges of the US Supreme Court not be particularly inclined to pick on matters which align the favour to the liberal society.

The second concern is that with her appointment, the Supreme Court now has the avenue to be politically conservative at best and outrightly favour the conservatives at worst. In the past, test cases have popped up before the Court which have lead to precedents that have lasted half a century. For instance, Plessy was a test case which swung the momentum for the separate but equal laws. It is not a fantasy to envisage a situation when a similar test case may be put before the Court, which might lead to overruling of a some of the most sharply dividing social issues such as the constitutional right to privacy, or the constitutional right of a woman to have an abortion. In the recent senate confirmation hearings, Justice Barrett was asked to share her opinions on abortion and the impending Obama Healthcare case. She deflected both these questions and did not answer them conclusively. She said that she would do what the law required her to do.

The third concern is the timing of this appointment. A little less than half a decade ago, upon Justice Scalia’s death in 2016, the then President, Barack Obama nominated Merrick Garland. Nonetheless then the appointment could not be finalised- largely owing to the timing of this happening in an election year. An unwritten convention was essentially formed. Four years hence, this was not seen as a concern (in some cases by those who had previously suggested that nominations should not be made in election years). This principle, then widely referred to as the ‘Biden rule’ clearly evaded Trump administration. It was also in breach of Ruth Bader Ginsburg’s dying wish- that her replacement not be made before the next elections.

Fourth, her appointment raises a broader question. Should judges be appointed by the legislative or indeed the executive at all? In a democratic setup it is crucial that a balance is maintained between the branches of the Government. If judges are also political appointees, it erodes a part of this principle. It also certainly breaches the adage that justice should not only be done, but also seen to be done. The irresistible inference is that the nominated judges come from a political nomination and thus the boundaries of separation of power and judicial independence are obscured. The United States appoints judges for life- thus the implications of any appointment are in all probability be felt for decades to come.

Neither the constitutions of India and the United Kingdom’s permit any political interference in the appointments process. In fact the Supreme Court of India outrightly rejected the National Judicial Appointments Commission. Similarly, removing judges from their posts is a cumbersome process that requires majority in both the houses of Parliament and is a power rarely used. No judge has been impeached till date. This ensures that the independence of the judiciary remains intact and proper checks and balances can be nourished.

It is also crucial to remember that whilst most organs of the state have inbuilt checks and balances- courts are mostly their own conscience keepers. They must lead by example-the constitution has given them tremendous powers and as the old adage goes, with great power comes great responsibility. The Supreme Court of the United States is responsible for its own image and its own conscience. It can be conscience of Dred Scott and Plessy orit can be the conscience of Brown v Board. Either way,the world will certainly be watching the developments in the worlds biggest exporter of democracy with close interest..

Raunaq Jaiswal is faculty member at OP Jindal Global University. he holds a LLM from Central European University, Budapest.

Vishavjeet Chaudhary is a barrister by training, currently Delhi based Advocate specialising in criminal law and constitutional law. He holds an LLM from the University of Cambridge.

Continue Reading

Legally Speaking

Digital constitutionalism and personal data protection

Knowing that social media and search engine websites have been at their superior best for tracking down individual behaviour, the new branch of constitutionalism, specifically digital constitutionalism, would not only be working against the state actor but would necessarily also work against the non-state actors such as Facebook and Google.

Published

on

The efficient tool which is coming around the world for regulating the conduct of social media and search engine websites is to draft a stringent personal data protection Act. India too is following in the same fervour and has drafted a Personal Data Protection Bill, 2019.

The nuanced origin of privacy rights as a fundamental right in 2017 brings along a tectonic(al) shift in the Constitutionalism-Jurisprudence in India. Especially, knowing that privacy necessarily tags along with it the questions of informational privacy, or more specifically the question of digital privacy. Knowing that social media and search engine websites have been at their superior best for tracking down individual behavior, the new branch of Constitutionalism, specifically digital constitutionalism would not only be working against the State actor but would necessarily also work against the Non-State Actors (Facebook, Google, etc.). Interestingly, the realm of digital constitutionalism has many takers with differing opinions. Brian Fitzgerald, an exponential writer in the field of informational constitutionalism (IC), tracks the origin and source of IC within the privacy laws such as patent laws, copyright laws, contract laws, and privacy laws. As per Fitzgerald, these laws represent the adequate constraint requisite for protecting the privacy and integrity of an Individual. However, there are other writers, who trace the origin of Digital Constitutionalism within the realm of Constitutional norms as what some call as a normative counteraction against the digital advancement. Under the normative counteraction, we trace the origin of DC within the already established norms of the constitution, so if I have to say that there cannot be any discrimination in any public place, it is an authority which I can draw from the norm of article 15 (2) of the Indian Constitution. Similarly, I will derive this norm against digital technology which might be discriminatory in public places. Similarly, Article 21 dignity-jurisprudence can be applied to informational privacy. So these normative counteractions can be expanded to work against the State and Non-State actor. However, the expansion of normative counteraction requires a two-fold approach, either, the Non-State actors like Facebook and Google are regarded as a part of ‘State’ and when I say ‘State’ I mean the State as defined under article 12 of the Indian Constitution. As once these entities (Facebook, Google, etc.) are regarded as ‘State’, they shall be as liable for protecting the dignity of an individual as the Government of India is. However, the Indian Jurisprudence has not expanded to an extent where it can recognize the Non-State actors as part of article 12. It was not until 1975 when under the judgment of Sukhdev Singh v. Bhagatram, that Justice K.K. Mathew exponentially defined the idea of ‘State’ and hinted that the idea of ‘State’ also includes the idea of entities discharging the function of State as well. This elaborative opinion of Justice Mathew found few takers in series of judgment following after Sukhdev Singh’s judgment, yet the opinion felt short to bring an overhauling change in the settled jurisprudence of ‘State’ as defined under article 12. Today’s settled rule of ‘State’ derives its authority from the Zee Telefilms v. UoI case 2005 famously known as the BCCI case where the triplet test was categorized by the Supreme Court for recognition of an entity as ‘State’: the test of Function, Finance & Administration. However, in between the last decade, there was a case of BCCI v. Cricket Association of Bihar 2015, where Justice T.S. Thakur had emphasized on the function test for recognition of ‘State’. Assuming that the ‘function test’ is core the essence for any entity to be recognized as ‘State’, the other question which naturally follows this thesis is whether social media and search engine giants like Facebook and Google are discharging functions of ‘State’. Let us Facebook for example; the company today is a multi-billionaire dollar organization with thousands of employees around the world, working round the clock to keep the people connected. However, that is one such feature of the social media giant, the company today is endeavoring to launch its own set of crypto-currencies known as a ‘libra’. As well as the Social Media giant also provides for stress-relief features such as ‘Mark yourself safe’ in case of any natural calamity strikes at your region. Apart from that Facebook has also become one of the prime sources of news/information for the world community at large today. Additionally, the company has also launched its own Supreme Court like an adjudicatory body, known as Facebook Oversight Board (FOB) (yet to become functional). The company already is running a parallel ‘State’, the only difference that could be thought between the State and the Facebook is while there is job-permanency in Government, the Facebook employee does not have that, further, there is a counter-argument to this theory that FB does not have democratic legitimacy to be equated with ‘State’. The latter argument does not seem viable knowing that the FB has over a billion users, so it is not like that the Company is not accepted and used.

The other argument which goes against this pseudo-dualism of private/public entity is the ‘incoherent criticism’ theory, the fact that a private organization can be allowed to work without considering fundamental rights just seems incoherent. Private spaces cannot be spots of discrimination or breach of dignity. Keeping this in mind there are substantive arguments for digital constitutionalism, originating from the normative reactions of the Constitution itself, when I say normative reactions, I mean that there is enough leverage under article 21 to work against cases of breach of informational privacy arising not only by the State but by the non-State actor as well.

The above argument helps us in consolidating the position of digital constitutionalism, one that can be traced to the existing norms of the Constitution. However, the question is whether the safeguarded provided by the existing norms are efficient to handle the situation of a data breach. The Supreme Court through K.S. Puttaswamy (2017) had recognized three facets of privacy: bodily privacy, the privacy of mind, and informational privacy. The third facet of privacy, is the troublesome one, as the judiciary recognized the advent of the digital era, it recognized informational privacy as an essential facet of this era and dignity (Article 21). Yet this recognition of a new facet of privacy does little or no work unless there is a normative safeguard to protect them. Ironically, the distinct safeguard for digital dignity (or informational privacy) in India is governed by three major regulations: the Information Technology Act, 2000, (IT Act, 2000), the SPDI rules, 2011 and Intermediary Guidelines Rules 2011. Yet most of these provisions have turned obsolete seeing the kind of technological advancement has been made in the last decade. The SPDI rules were specifically drafted to bring in a sense of accountability on the e-commerce websites and search engine websites, but these safeguards do not categorize the sensitivity of the information. The new Personal Data Protection Bill, 2019 categorizes personal data into broad themes of sensitive personal data and critical personal data.

The efficient tool which is coming around the world for regulating the conduct of Social media and Search engine websites is to draft a stringent personal data protection Act. India too is following in the same fervor and has drafted a Personal Data Protection Bill, 2019. Interestingly, this is India’s second bill on Personal Data Protection, the first draft was prepared by retired Justice B.N. Srikrishna is known as the Personal Data Protection Bill, 2018, which was pretty much on the lines of the European General Data Protection Regulation (GDPR). However, the new draft of the bill titled Personal Data Protection Bill, 2019 has made some serious detachment from the old bill and has certain provisions that are friendly to the Government.

Now this second bill of PDP needs to be seen under the light of Digital Constitutionalism because PDP becomes an essential tool of restraining the power of State and Non-State actor. This model of Constitutionalism is typically based on the model given by Brian Fitzgerald, searching the Constitutionalism through the medium of statutory laws. Unlike its western counterpart: under the European model, the protection of personal data is regarded as a part of fundamental rights. Whereas in India, data protection has been given a status of statutory rights; so even though the informational privacy requires a strong guard of data protection, the Indian Judiciary has not recognized data protection as an essential part of data privacy so far. A statutory right per se does not have the same amount of assurance as that of a fundamental right, yet it will be too early to discard the personal data protection bill, 2019 for its statutory existence (yet to come).

THE PDP BILL, 2019: A NEW DAWN FOR DIGITAL DIGNITY

It is not a hidden fact that the 2016-U.S. election came as a big revelation for the world at large, it told us that the sanctuary of the house is not that safe place after all. The idea of a digital castle was shuttered by Facebook and other media websites, who as per the news around the world, collaborated with the political analyst firm Cambridge Analytic and manipulated voter choices in the United States. This does not end here, the reminiscence of it are still very fresh with cases being alleged in the Brexit movement in Europe and the Presidential election in Brazil. This is an unending tale with diverse authors across the globe. One of the former employees of the firm also mentioned that the firm had met a few political parties in India as well. This raises some serious threat to individual dignity and freedom of choice (which surely can be traced back to article 21 of the Indian Constitution) in India. Therefore, any legislative attempt to curb the outreach of social media needs to have a consensus ad idem of three parties: Government, the Social Media & Search Engine Websites, and the Consumers (Citizens) of Social Media. All these three parties have an interest in the making of a personal data protection act, therefore all their interest needs to find a place in the act.

The current PDP bill, 2019 does provide for more rights for the data principal (consumer of social and search engine website). The bill recognizes the right to be forgotten (read section 20), the right to erasure (read section 18 (1) (d)), right to correction, and the power of the data-principal to take back its consent. There are different categories of consent required for different categories of personal data (read section 11 of the Bill). All these rights seem like a good move for regulating the exercise of power by large corporations and certainly draws a structural balance of power between the data-principal and data fiduciary (State and Non-State actors taking information).

But it has to be kept in mind any form of digital constitutionalism, either coming from the normative counteractions or statutory laws, it has to work against both the State and Non-State actors. The conventional definition of constitutionalism: as a restraint against the State, cannot be a fully operational definition keeping the digital world in mind. Therefore, the implications of PDP Bill, 2019 have to be against the State and Non-State actors equally. Interestingly, various provisions of the PDP bill, 2019 tends to hint towards over-regulation, which is a classic tale of socialism, the bill started from being a role of parens patriae to turning into the eminent domain. The first default reaction of Governments across the globe against the Facebook fiasco was that of a guardian, and its citizens are like its children who are needed to be protected against the outreach of social media, but suddenly this role has turned into the eminent domain. Where the concerted power has shifted from the Non-State actor to the State actor, if sections 12, 14, and 35 are read carefully, there are enough leverage points for the Government agencies to process personal data without being bound by the regulations of consent. This tends to imbalance the power ratio among the three parties in interest and tends to tilt in favor of the Government. A more neutral role would be required by the Data Protection Authority to mediate the power ratio among the three parties.

REASONABLE EXPECTATION OF PRIVACY

The other theoretical notion which we need to explore in absence of any substantive enactment to safeguard personal data could be the theoretical test of ‘Reasonable Expectation of Privacy’. The reasonable expectation of privacy test was evolved in the U.S. Supreme Court through the rulings of Olmstead v. United States, Katz v. United States, and Timothy Carpenter v. United States. The test simply runs on the premise that ‘Would a reasonable person expect privacy within a particular space’. This subjectively objective test has been utilized by the U.S. Supreme Court for way too long. The Indian Supreme Court too in the case of K.S. Puttaswamy (2017) dealt with this theoretical question, where Justice Chandrachud had given recognition to this test, Justice Chandrachud used the phrase ‘legitimate expectation of privacy’, which in a way can be regarded as a passive acceptance of the test as evolved by the U.S. Supreme Court. However, Justice Nariman did not agree with this test in the judgment and rather showed dismay at this test, knowing that Indian Jurisprudence does not agree with ‘waiver right’, therefore applying any test of a reasonable expectation of privacy would have serious repercussion on non-waiver jurisprudence of India.

However, this brings forth a great jurisprudential inquisitiveness for us to ponder upon, is it possible that till the time no substantive enactment is made in, the test of a reasonable expectation of privacy could be applied to fill in the intricate gaps within privacy jurisprudence in India.

Ashit Kumar Srivastava is Assistant Professor of Law at National Law University-Jabalpur.

Continue Reading

Legally Speaking

Protection of whistleblowers in India: A myth

A large number of whistleblowers have been RTI activists who believe that by doing this they can
reform the government and end the malpractices that are present in the system.

Published

on

The main reason why people think of this option is the anonymity of their identity. Many people want to expose the malpractices present in the system but they avoid doing that because they have to give their identity and that puts their lives into danger. These people want to expose the malpractices so the only option left with them is to take the help of these online sites to bring all these data in public. It is a lot easier option to expose anything via Internet because here we don’t have to get the print out of all the documents. Nowadays all the government offices have also become digitalized, so it is very easier for low-level employees to get secret data that is enough to expose any malpractices present there. 

The act in our country doesn’t allow anonymous compliant to be filed and if any such complaint is filed it is rejected straight away and the complainant has no other option than using the online tools for disclosing information.

INTRODUCTION

 “The purpose of whistleblowing is to expose secret and wrong ful acts by those in power to enable reform.” — Glenn Greenwald 

The term whistleblowing can be understood as raising our voice against some malpractices that are there in an organization. It can be understood as when any person discloses any information that is illegal or unethical present in any organization to the people at large. The term whistleblowing originally came from sports where referee blows their whistle to ensure that there is no foul play involved in the match. The RTI act 2005 is an effective tool for whistleblowers, because of this act only they can obtain any information about activities which they think are illegal or unethical. In many cases, they can bring corrupt practices to light by using this act only. A large number of whistleblowers were RTI activist, who believes that by doing this they can reform the government and end the malpractices that are present in an organization. But by doing this they have a constant threat to their lives because the information they seek from the government or any public offices can destroy the carriers of many corrupt officers. 

These officers hold a very big position in these offices and have political connections as well so they can do extreme measures to take revenge. We can say that there were several problems in the existing structure of the act, lack of anonymity of the information seeker raises the chances of getting threats from the people who were at discomfort because of information. People use to harass or give threats to the person to take the request back and if the person did not do so then they even kill the person. Some of such examples Are the killing of Rajendra Prasad in Bihar who exposes the local government for corrupt practices in the police recruitment process and the public health sector as well in another case an RTI activist named as Amit Jethwa who exposes the illegal mining in the Gir forest area of Gujarat also gets killed. In the year 2003, an engineer named Satyendra Dubey in Bihar shot dead after he exposes the malpractices present in the golden quadrilateral project. After this, a call for an act that protects the whistleblower in India arises. After the wait of so many years in the year of 2014, a whistle blower protection act is enforced. Under this act, it is the government’s responsibility to ensure the protection of the whistleblower against the victimization and to conceal their identities. But even after the introduction of this act the number of death of the RTI activist continue to increase in our country. some states also say that they will provide police protection to those activists whose lives were in danger but there were several loopholes in this system as well.

LEGAL FRAMEWORK OF OUR COUNTRY ON WHISTLEBLOWING

 The Indian companies (Amendment) Act, 2017 – There is a concept of whistleblowing that is provided by this act, but this term is nowhere expressly mentioned in the act. Under chapter 14th of the companies’ act 2013, that is inspection, inquiry, and investigation the concept of whistleblowing is given. Under the act, it is said that whistleblowing is not an individual job to do but it is an obligation of everybody who is working for an organization to look at its functions and report if he thinks that the organization is not working properly. Under the section 218 of the act, protection is given to the employees while the investigation, this act promotes that every individual who thinks and has reason to believe that the company is using any malpractices or not doing the work by the companies act 2013 then he/she can make an official complaint of the same to the registrar of the company. 

Whistleblower protection act 2014- The main motive behind the incorporation of this act is to provide a platform where any person can disclose any information regarding the malpractices or illegal activities present in a company or they can file a complaint against the public servants who were misusing their powers. This act provides us the opportunity to disclose any information through public interest disclosure before the competent authority. The person who is disclosing any information through public interest disclosure has to reveal his identity before the authority and no complaints should be entertained if the person is not revealing his identity. The identity of the complainant is needed only to cross check that whether the complaint is filled by himself or any other person is using his name without his knowledge. If the identity and the facts of the complaint are established then after that the authority will investigate into that matter discreetly. If the identity of the complainant is disclosed by any means then there should be an internal inquiry in that manner and the person responsible for disclosing the identity should be punished according to the law. This act also protects the person against any victimization, if the authority thinks that there is a need to protect the complainant then they will do the necessary arrangements to protect the complaint from any threats.

 CORPORATE FRAUDS 

• THE INFOSYS EPISODE In this case, a group of employees filed a complainant against the top management of the company under which it is stated that the company is using unethical and illegal practices to increase the profits and the short term revenue. The complainant sends that complaint to the board of directors of the Infosys and the US Securities and Exchange Commission because the company is registered in the US and it allows filling confidential complaints with it. In the complaint, the complainants did not reveal their identity because if he will reveal his identity then he has to face the retaliation of the same. The complainant also assured that they have evidence such as call recording and a copy of the email that will prove the above allegations. In the complaint, he alleges the CEO, Mr. Salil Parikh that he directed them to manipulate the documents and make wrong assumptions. Another thing that is stated in the document is that the position of the CEO of Infosys is to be based in Bangalore itself so why the company is not forcing the CEO to begin his work from Bangalore, not from Mumbai. The funds that are used in the visits of the CEO to Bangalore belong to the company, if he wants to work from Mumbai then all the traveling expenses to Bangalore are covered by his salary only not from the funds of the company. But after all the investigation conducted by the audit committee of the company, they gave a clean chit to the CEO of the company that they did not find any substantial evidence confirming the same. The SEC also gave a clean chit to the company in this matter. 

• THE SATYAM SCAM – In this, the company misrepresented the accounts of the company to the board, the investors as well as the shareholders. In this scam, the company is alleged in fraudulent auditing practices that are done by the chartered accountants and the auditors of the company. This company is following the whistleblowing policies since it’s starting but it is not followed correctly and due to that only it leads to such a big scam. In this scam, the chairman of the Delhi metro rail corporation suspected big mischief that is happening in the company and raised a red flag about the same in front of the head of the planning commission of India. After all these accusations the owner of the company Ramalinga Raju surrendered himself to the police for the fraud. The original whistleblower that is the chairman of DMRC faced defamation charges by the Andhra Pradesh government because of his letter.

 • THE RANBAXY COMPANY FRAUD- In this the whistleblower named Dinesh Thakur was an employee of that company and he suspected that some malpractices are being practiced in the company and because of that he raised his concerns to the concerned authority. But after that, he was forced to resign from the company because the issues he raised consists of drug development, manufacturing, and testing data, and these were very serious allegations so the company management forces him to resign. After resigning he started working for the US food and drug administration and from there he was able to expose the malpractices present in the Ranbaxy Corporation. Only because he took the protection of the US whistleblower protection programme.

 WHISTLEBLOWING IN NEW ERA: BY INTERNET

 The main benefit that people think of this option is the anonymity of their identity. Many people want to expose the malpractices present in the system but they were not doing that because they have to give their identity and because of that theirs, as well as their family, lives come into danger. These people want to expose the malpractices so the only option left with them is to take the help of these online sites to bring all these data in public. It is a lot easier option to expose anything by the internet because here we don’t have to get the print out of all the documents, where we can just share them as they were available in soft copies. Now a day all the government offices have also become digitalized so it is very easier for low-level employees to get secret data that is enough to expose any malpractices that were present there. 

There were many sites such as wiki leaks that offer the whistleblower a sophisticated platform to give that information without giving any of their personal information. They claim that they even do not keep the record of where you uploaded that thing, your time zone, or even your browser. Due to all of these benefits people tend to use these platforms more than the government laid procedures because in that we have to disclose our identity. With all the benefits that we are getting by the online platforms, there were some risks also attached to them such as the threat to national security. Our government agencies have some power to protect national interest they can have some information as secrets with them. These documents are very important for the development of the country and if such documents are leaked by anyone over the internet then the image of the country is degraded worldwide. It will also jeopardize the security of the nation, so we have to be cautious all the time before using any platform for discussing such things.

 MEASURES TO PROTECT WHISTLEBLOWERS

 • PUBLIC INTEREST: As discussed in the case Common Cause and Ors. Vs. Union of India and Ors. The Supreme Court has mentioned that the whistleblower cannot be penalized if he discloses any confidential information for the public interest. Currently, as per the act, every disclosure is a public interest disclosure, there is no specific definition for the public interest is given in our statutes. Because of this many times, there was confusion regarding the information that whether it can be of public interest or not. 

There is a difference of opinion between many agencies regarding this topic so in our country we need a test that could define whether the disclosure of particular information is of public interest or not. We can decide this thing by looking at whether the disclosure of information informs the public about the working system of the organization, whether the disclosure helps in the decision-making system of the government, whether the disclosure of information informs the public about the danger that is there on their lives because of the negligent conduct of an organization if these type of disclosure is happing by anybody then the agencies can choose not to disclose by saying that it is not in the public interest but by seeing the larger picture in the place we can see that the agencies were only trying to save themselves from the embarrassment caused by their actions. So there should be a test to determine this in our country.

 • ANONYMOUS COMPLAINTS: The act in our country doesn’t allow anonymous compliant to be filled and if any such complaint is filled it is rejected straight away and the complainant has no other option than using the online tools for disclosing information. In our country the government didn’t entertain the anonymous complaints because several complaints are there without any evidence, these are filled only to defame that particular person. It would take a very large amount of task force and time to check the validity of each complaint and to save themselves from this, the government didn’t allow anonymous complaints. There is a need to find a solution to this problem because many times the complainant did not want to disclose the name and he could have some information that is of national security and because he cannot disclose such information to the government he chooses to disclose it online and the information jeopardizes the national security. In this case, we cannot blame the complainant completely because even we did not give him the chance to disclose that information to us. Some countries develop a solution to this problem such as establishing a hotline in Germany that allows the whistleblower to share his information without giving his credentials, In Indonesia, they develop a website where the whistleblower can share such information and in South Korea, they also established an anonymous hotline for this. 

· VICTIMISATION: The act in our country has a very general idea about the protection of the victimized whistleblower. It only directs the concerned authority to give protection to the whistleblower but the authority has the final call over it and in almost all the cases the local authority was not so efficient in providing securities to them because of the local pressure by those against whom the whistleblower has filled the complaint.

 Certain things could empower the whistleblower if added in the act were if the whistleblower has the entitlement of getting a transfer from a place or to revoke his transfer then this will give some sense of job security to him. In many cases, the whistleblower is falsely arrested in some different cases to pressurise him to take back his complaint so there should be a rule of immunity from prosecution given to the complainant. He should have given legal assistance by the government to fight from any other false complaint against him. People try to harass the whistleblower in any way possible so if he had legal assistance with him then he can fight with all of this easily. If the whistleblower thinks that he has some kind of threat to the life of him and his family then they all should have given police protection. The competent authority may analyze the threat level and after that, they can decide the level of protection they get.

 • INCENTIVES: There is no such concept of giving incentives is there in the act but if some person provides a false complaint against someone just for his grudge then the person will get punishment according to section 17 of the act. So if any person is getting punished for giving false information then why not give a reward to the person that discloses very important information and because of that information the government gets various benefits and also the lives of the people are saved. So according to me, the government can give some incentives to such people. The only problem, with this rule, is that after this many people will complain only about the reward. 

But this problem can be solved the government punishes those people who allegedly file complaints to settle his grudge then only in that way the government can recognize that whether the complaints filed by him are in the interest of the public or not. 

CONCLUSION 

In our country, the condition of protecting the whistleblowers is not very encouraging, even after implementing so many acts and doing amendments to them the condition of the system is not good. One of the major problems is corruption is present in every department and office whether private or government. Companies don’t let their employees speak against them, and if anyone dares to raise their voice against the malpractices then the company use its enormous wealth and power to win that case and after that the employee that raised his voice, either he gets terminated from the company or his life becomes miserable their so he had to leave that company. In our country to be a whistleblower enormous strength is required, everybody cannot take such amount of pressure that a whistleblower gets in our country.

Continue Reading

Trending