The administration of justice is one of the most essential function of the State for a due safeguard of the rights and lives of its people. The key functionaries in this system are police, prosecution, defense counsels, and courts and corrections. Each of these functionaries has defined powers and functions and is subject to specific rules and procedures. This brings reasonability and accountability in their functioning which ultimately solidifies a justice system of a country.
Talking of the police, the preamble of the Indian Police Act, 1861 describes police as an “efficient instrument for the prevention and detection of crime”. However, the recent incident relating to the encounter of accused Vikas Dubey at least at present appears neither prevention nor detection. The name assumingly needs no introduction in light of recent events. Vikas Dubey was accused in 64 cases including those of murder, abduction, extortion. The recent most being Kanpur Cops Killing case wherein 8 Uttar Pradesh police officials were killed when the police went to arrest him. After absconding the place of crime amongst others, on 09.07.2020, he was arrested from Kal Bhairav Temple in Ujjain wherein he surrendered to the police.
The apprehension of an encounter of this main accused was in the air since his run after the incident. His act of surrendering in the temple was thought as a smart and safe move to avert any possible encounter, including a fake encounter. However, an act which on 09.07.2020 appeared to avert encounter or fake encounter and assure safety to his life, turned enfeeble by the morning of 10.07.2020. He was encountered on the outskirt of city Kanpur while he was being brought to Kanpur from Ujjain. It is the case of the police that he was encountered when the vehicle in which he was being transmitted toppled and he “attempted to flee” after snatching a pistol from one of the police officials.
Presently, though the case of the police appears to be uncorroborated by the surrounding circumstances yet it would be not appropriate for the author to comment on the veracity of case of either side as an investigation by the Special Investigation Team is still ongoing.
However, it would be appropriate to point out several facts and issues likely to be involved and play a critical role in determining the veracity of the case of the police. Given the suspicious story and circumstances, on the factual front, an answer to several questions will play a very critical role in the determination of the truthfulness of the case of police. Some of these questions may be briefly noted as follows:
How many police officials accompanied the accused in the transit? How did the vehicle topple? What would the report of an expert say on the possibilities of the toppling of the vehicle? How many police officials were travelling along with him in the same vehicle? Did anyone sustain injuries from the toppling of the vehicle including Vikas Dubey? What does the medical report of each person say about the nature and cause of the injuries sustained? Has the weapon snatched by the accused been sealed? Does such weapon show fingerprints of Vikas Dubey on the pistol? Why was his leg not aimed in all four shots with which he was hit? Did the bullet enter his body from the back or chest? What does the site plan of the place of occurrence indicate? Has any bullet even been fired from the pistol snatched by the accused Vikas Dubey? If it was a fake encounter, why was the time of 7:00 in the morning chosen instead of any time at night? Is there any direct and independent witness to the incident? If no, what does the ratio of vehicles usually be on the said road? When was the transit of vehicles stopped on the road? When was the sound of fire heard? How did the misfortune and coincidence happen only with the accused and co-accused of this case and that too within such a short time, particularly when the apprehensions of the encounter were so high? Why was one of the houses of Vikas Dubey bulldozed when the investigation was still pending?
In addition to them, questions will arise from the documents like site plan, medical reports and the witnesses produced will play a critical role in determining the veracity of the case presented by the police.
On the legal front, the question of why was no transit remand order taken from the Court in Ujjain has been raised. Though the explanation of the police for this would be a relevant fact but interestingly, obtaining of a transit remand has often been held as non-mandatory and mere irregularity. For example, the Jharkhand High Court in Ram Bilash Sahu vs. Union Of India [2012 SCC OnLine Jhar 932] observed that “non-compliance of provisions contained u/s 76 of the Code, in such circumstance can only be an irregularity which shall not be a ground to declare the remand illegal” (para. 13). Further, in Surendra Sardar vs. State of Bihar & Ors. [(2000 (3) PLJR 238] the Court observed as follows:
“It is not a condition precedent or a valid order of remand that the accused must at the time of remand, be in valid custody under a valid remand order. If on the date of hearing of the application the remand is valid, then no writ of habeas corpus can be issued only on the ground that at earlier point of time the remand was invalid.” (para. 6)
Thus, in the present case, the non-taking of transfer remand may be considered as mere irregularity as had the accused been produced before the jurisdictional Court, his custody would have otherwise been treated as valid.
Having noted this, the author opines that the encounter which presently seems to have been staged could have been averted by due diligence of the jurisdictional Court, police official, and/or of any advocate. Taking of transit remand could have at least secured the transit of the accused from Ujjain to Kanpur. Moreover, the accused or any person on his behalf could have pleaded for the order of putting handcuffs and leg cuffs to the accused. This would have in the opinion of the author nullified the story of attempted escape by the accused. But it appears that the accused, the jurisdictional judge or any other advocate or official for that matter did not anticipate that the accused still has his life on risk once he was in police custody after a surrender.
However, in addition to the above-discussed factual and legal matrix, the series of incidents and the response of the police to the entire incident also posts some other questions and thoughts on the existing criminal justice system and political system of the country. First, whether the media and the police have different responsibilities towards society when eight police officials killed vis-àvis killing of any number of civilians of the country.
Second, the encounter at least at present appears to be an ecstatic and emotional response to the killing of their colleagues despite them, either under political pressure or otherwise, having let these people grow and perpetrate in this system to such an extent that some of their officials continuously conspired against the attempt of their colleagues to arrest the accused. The proverb, “as you show, so you shall reap” sadly appears to befit the situation except for the politicians if any were involved. However, the encounter, whether staged or inadvertent, cannot make the people turn a blind eye to this existing dysfunctionality in the police and political structure of the country.
Last, and most importantly, the incidence of encounter particularly if assumed to be fake and staged mocks the functioning of the judicial system, dwindle the faith in the courts and “due procedure established by law”, and override “rule of law”. However, despite the issue of delay and pendency in courts, such encounters or at least encounters which could be averted cannot be justified.
The incident, on the one hand, gives a sense of inefficiencies in the Indian judicial system where a delay is a common phenomenon, on the other hand, it also shows the dysfunctionality of the police and political system. Such extra-judicial exercise of power in the hands of police posits a great threat. It may at present appear fascinating exercise of the police power but history shows that such an exercise of the power or any neglect or excuse thereof has often been misused and degraded justice mechanism of any country. While talking of separation of powers, Montesquieu in his book ‘The Spirit of Laws’ (1748) observed that if the executive power i.e. police and the judicial power are taken by a single hand, the executive acts would lose accountability and lead to arbitrariness. It is in light of this that it is incumbent on the Court to take a stern cognizance of the situation and circumstances and get the incident duly investigated. An overseeing of such an exercise of power would corrupt the justice mechanism in the long run.
It is true that henceforward encounters of hardcore criminals by the police will not only be a norm and in vogue. But any light treatment of this incident would be a slow poison to the administration of the criminal justice system in India. Presently, the surrounding circumstances do suggest it to be a staged encounter and at least attack and question the efficiency of the existing criminal justice system in India. In closing, the author suggests that a strict recognition of the implementation of guidelines noted and framed by the Hon’ble Supreme Court in People’s Union for Civil Liberties & Anr. vs. State of Maharashtra & Ors. [(2014) 10 SCC 635] for encounters and investigation thereof should be put in place and acted upon including in the present appalling and suspected encounter of main accused Vikas Dubey.
Adv. Pareekshit Bishnoi practices at the Delhi High Court and district courts at Delhi.
Effective use of digital entitlement approach to ensure human rights
Came across advance version (11th October 2019, Distr: General in 74th session item 72(b) of the provisional agenda on Promotion and Protection of human rights reflecting questions, alternate approaches. This article I am sending on the note by Secretary General report of Special Rapporteur on extreme poverty and human rights by Philip Alston (HRC resolution 35/19). “As humankind moves, perhaps inexorably, towards the digital welfare future it needs to alter course significantly and rapidly to avoid stumbling zombie-like into a digital welfare dystopia,” the Special Rapporteur on extreme poverty and human rights, Philip Alston expressing concerns on ‘digital welfare state’.
My response is to the arguments put forward in the report. The grave risk of stumbling zombie-like into digital welfare dystopia has been argued to operate in almost human rights freezone. It does trigger a debate but then it is important not to shadow the advantages that digitization has brought in for ensuring handling extreme poverty in terms of SDG principle of ‘no one is left behind’ and also ensuring efficiency in access to the poor. I had worked directly with National Human Rights Commission , India and at international level was instrumental in ensuring to get a seat for NHRCs at the UN Council of —–. I have also worked in developing digital solutions for ensuring social protection.
My work has been published by IPR, University of Batch (link attached) that gives empirical evidence as to how SAMAGRA a household wise verified data base made by the government owned software body NIC (National Informatics Commission) ensuring complete ownership and protection of data enables to have a paradigm shift from welfare approach to that of entitlement and also how it is ensured that software enables to identify the beneficiary households and target the benefits. It also enables to break silos and shift to holistic approach. UNHRC is to target good practices of digitization across the globe to developed, developing and developed economies to ensure the commitments made in SDG. This will accelerate gaining access and ensuring dignity to poor in deciding their future by using their entitlements.
The Special Rapporteur on extreme poverty and human rights by Philp Alston observations does point out the possible fear of resorting to digitization, but it is important to realize that there is always a ‘person behind the machine’. While agreeing to the observation the private sector is taking a leading role in designing, constructing, and even operating significant parts of the digital welfare state the experience is that the technology is to be used as a tool, the software and data base to be made by a Government body like NIC in India and not by private sector. This ensures update of data by Government authorised agencies like local self government and privacy and security of data is ensured. The common household data base (SAMAGRA) ensures no repeat in data collection, making silo of data base, and updation. Thus only authorized agencies do the same. The data enables to throw up list of those entailed so that no one is left behind enabling to know the entire universe of particular desired objective. Thus, duplication fraud, and non access is taken care of .
The human right of access to entitlement is equally important. Technology as presented should not be just for better skilling, but correct targeting and access is equally important. The biggest advantage of shifting of a country to a common household data base with names of individuals is the panacea as holistic approach can only then be adopted. It is flagged that the fear digital approach process is commonly referred to as ‘digital transformation’, but this somewhat neutral term should not be permitted to conceal the revolutionary, politically-driven, character of many such innovations. and remove discretion from human decision-makers. Discretion norms are set by human, thus it is not that human element is lost but then what is important that the discretion to select beneficiary is not there, entire list of those who fulfil eligibility is there and thus no one is left out. The SDG highlight that ‘no one is left behind’ is recognition of the fact that those who deserve most gets left behind as they have no access and the benifits get cornered by few. Thus, the poorest of poor has always been left out of the scheme of things. The right way of digitization and holistic approach enable to break that ceiling. The argument, that neoliberal economic policies are seamlessly blended into what are presented as cutting edge welfare reforms, which in turn are often facilitated, justified, and shielded by new digital technologies. Although the latter are presented as being ‘scientific’ and neutral, they can reflect values and assumptions that are far removed from, and may be antithetical to, the principles of human rights.
Digitization captures the entire universe and thus there is no question of anyone missing in the data base. In fact it enables micro targeting in terms of household and its members and enables better strategizing. As far as human right is concerned being left behind is the biggest violation of human right by perpetuating non access and poverty to them. The special rapporteur has admitted in the report that many get left behind and also that the welfare community has tended to see the technological dimensions as separate from the policy developments, rather than as being integrally linked. What is important and demonstrated by SAMAGRA is the policy makers make better informed decisions and also able to target for sustainable outcomes. Here I would like to mention little about SAMAGRA, the detailed link is also mentioned for those who would like to read more about the same. Abstract If it is ‘to leave nobody behind’ in pursuit of the Sustainable Development Goals 2030 (SDGs), then a state requires a comprehensive and continuously updated database of individuals and households within its jurisdiction. Consolidation of this data can also assist in overcoming silo-based fragmentation in government delivery of anti-poverty programmes and services. We explore the feasibility of establishing such a database through an extended case study of Samagra (meaning ‘all comprehensive’) in the Indian state of Madhya Pradesh. Samagra was developed to facilitate integrated monitoring and management of all major government-topeople (G2P) cash transfers in the state, and (more radically) to support a paradigm shift from a demand-led to an entitlement-based approach to benefit delivery. Samagra is a unified population monitoring system based on continuous recording of household level demographic events, linked both to operational records of participation in diverse G2P programmes and to financial accounts provided by designated financial institutions operating within a five-kilometre radius of each household. The paper offers a practitioner’s account of Samagra’s introduction, including implementation challenges, policy outcomes and issues meriting further research and discussion. ‘Leave nobody behind’ is a cross-cutting theme of the Sustainable Development Goals (SDGs) 2030 agenda, based on the concept of progressive universalism that prioritises and accelerates actions for the poorest and most marginalised, seeking to achieve social justice through equality of access to opportunities and highquality services for all (Bhatkal et al., 2015; Stuart and Samman, 2017; United Nations, 2015).It also resonates with the global expansion in the scale and diversity of direct benefit transfers (DBTs) as a policy instrument to advance social protection in many developing economies (Lazzolino, 2018), with recent evidence indicating a positive correlation between DBTs and some indicators of economic and physical wellbeing(Hagen-Zanker et al., 2016).
However, the proliferation of benefit transfer programmes and schemes with overlapping, fragmented and ‘silo-based’ delivery is also a potential source of unfairness and inefficiency, resulting in some households receiving multiple benefits while others receive none (Agranoff, 2005; Morse, 2013; Stewart, 2014; Uusikylä, 2013; Wegrich, 2019).To avoid such problems, it seems almost self-evident that public sector bodies need permeable organisational boundaries(Clegg, 1990, in Agranoff, 2005, p20 ; Hazy et al., 2011)and collaborative, integrated strategies and systems to consolidate and share the poverty status and eligibility of individuals and households across different programmes. A key issue in the effectiveness of such a system is the ability of the state to establish the identity of all its citizens, this in itself being an indicator of the capacity of different countries to leave nobody behind (Anderson, 2015; Carr-Hill, 2017; DI, 2016). But the establishment of a universal system for individual citizen identity (such as Aadhaar in India) is only one step towards building a comprehensive poverty monitoring system, since it does not address how transfers and their effects are affected by household composition. Whether anti-poverty transfers are allocated using universal categories, income or proxy indicators of poverty, some reckoning is required with how multiple interventions interact with each other and with resource allocation at the family and household level. The system for identification of those eligible for support must also be combined with a mechanism for transferring financial benefits to them, hence the need for financial inclusion (Alexandre, 2011; Barua et al., 2016; Radcliffe and Voorhies, 2012). Addressing these issues entails contending with the capability of the state to deliver consistent and joined-up services across vast populations, or how to go about enhancing such capability(Andrews et al., 2017). Given the widely observed limitations of attempts to replicate models successful in one context in another, it is particularly interesting and important to document endogenous or home-grown examples of successful state capability enhancement. To this end, this paper aims to document and to stimulate wider discussion of the case of Samagra in Madhya Pradesh, India from its establishment in 2012. Section 2 sets Samagra in historical and geographical context and highlights the problems that it sought to address. Section 3describes its purpose, design characteristics, scope and growth. Section 4 considers how far it has been successful in addressing problems of fragmentation, poor targeting and inefficiency, and reviews the main factors driving and impeding its establishment. Section 5 concludes with a discussion of key findings, policy implications, unanswered questions and scope for further research. This article draws heavily on the first-hand experience of the lead author as a policy actor in the state government of Madhya Pradesh at the heart of the process of setting up Samagra. It also draws heavily on officially commissioned studies of Samagra(Bhatnagar and Gupta, 2013; Menon et al., 2018; PWC, 2016). While recognising that our perspective may throw a relatively positive light on Samagra, our hope is that it will also widen and deepen discussion of it as a case study. Madhya Pradesh (MP) is the second largest state in India, by area, with approximately 72.6 million residents (Census, 2011) residing in villages and working in agriculture (Bhatnagar and Gupta, 2013, p3). Despite its size, the state has the third lowest gross domestic product (ibid) in the country, the fourth lowest human development index (0.594) (Radboud, 2017), and the highest population of scheduled tribes of any Indian state, constituting 21.1% of the population (MoTA, 2011). Social protection (SP) is the largest state sector in MP, in terms of number of beneficiaries, institutions, human resources and geographical reach (PWC, 2016). The government is committed to improving its quality and reach, including among people living below the official poverty line, the elderly, unmarried/dependent women, widows, and labourers. To this end, it has over 200 SP schemes, with an estimated budget of Rs.5,000 crore (£560,101,475) (ibid).
The Indian SP governance system has traditionally been predicated on a demand-driven, welfarebased policy framework, providing the basic needs of survival at subsistence level in areas such as health, nutrition, sanitation, livelihoods and education. Critics suggest that while reducing poverty in absolute terms this system is not sustainable, leads to aid dependency, and results in the most vulnerable being left out and at risk of falling back into poverty when impacted by shocks and trauma (Barrientos, 2005; Devereux and Sabates-Wheeler, 2004; Kabeer, 2010; Sabates. Wheeler, 2013). The many different SP schemes have had different rules, administrative processes and delivery points, leaving many eligible beneficiaries struggling to understand their entitlement. Enrolment has been further reduced by complicated and uncertain application procedures for each scheme, including lengthy processes for establishing identity and eligibility through the submission of documents relating to caste, labour category, below poverty level (BPL) status, disability, marital status or spousal death. Long delays arise while the entitlement is confirmed and the payments are processed by cash or cheque. For example, a student would need to understand the rules and eligibility criteria for thirty different scholarship schemes run by different government departments, identify those that he/she is entitled to apply for, obtain the necessary paperwork and attend the correct office to verify his/ her documentation. These problems are experienced most acutely by the vulnerable and underprivileged, who are least able to navigate the procedural complexities, and afford the time and cost arising from repeated visits to government offices. The result is that those in the direst need have often been left behind, while the wealthier, fitter and more educated take more of the benefits on offer. The potential for a rightsbased SP agenda to contribute to more holistic development has been officially recognised since Independence in 1947, as well as adoption of the Universal Declaration of Human Rights in 1948 (UN, 1948), and echoes a vast literature (e.g. Abdulai et al., 2019; Breitkreuz et al., 2017; Esquivel, 2017; SabatesWheeler et al., 2019).An important milestone towards a rights-based approach to SP in Madhya Pradesh was the passing of Resolution 37 in the Legislative Assembly in 2010 (Menon et al., 2018). This led to a detailed review of the current SP provision, and of the many constraints limiting its effectiveness.
This included data deprivation, undermining the government’s ability to understand the socioeconomic status of the state’s inhabitants. Government departments worked in silos, collecting, processing and storing data independently. Information management constraints, lack of political commitment, and high cost implications related to the potential integration and reconciliation of beneficiary information had resulted in isolated islands of data. The data that did exist related only to the beneficiaries of each scheme; there were no data on the remaining population or their entitlement and beneficiaries were often recorded only by number, not name.
Thus, while the expenditure was booked, there was seldom proof of the actual financial benefit transfer being received. For planning purposes, this led to statistical misrepresentation, skewed estimates of the population’s socioeconomic profile and poorly informed poverty alleviation strategies. A lack of coordination between government departments also resulted in overlapping benefit eligibility criteria, with no standardisation of rates or rules, and multiple agencies providing similar benefits. At the same time, due to the manual and decentralised nature of welfare implementation, each scheme had a different application form, service delivery point and process for sanction and disbursal of the benefit, often requiring attendance at more than one government office for each benefit and repeated verification of personal details and eligibility. This led to unnecessary confusion and beneficiaries either not receiving their full entitlement or, conversely, collecting duplicate benefits from multiple departments. An example of this relates to life insurance schemes provided by a number of government agencies for low income workers. As the majority of informal, lowpaid workers profess a multiplicity of occupations due to seasonal and livelihood factors, a single worker may be on the benefit list for a number of different departments, e.g. female construction workers may be listed under both the Department of Women and Child Development and the Building and Other Construction Workers Board of Labour Department. As such, government research discovered that the life insurance premium for each worker could be paid by up to five different departments. If a claim arose, due to the death of the worker, the family member would still only be eligible to claim against one of the five policies and often, due to a lack of knowledge and literacy, no claim was made by the successor of the insured as they had no awareness of the insurance cover in the first place. This meant large sums of money were being paid by the government to the Life Insurance Corporation of India, but only 1% of beneficiaries were receiving the claim benefits (average industry rate is 12-15%).
A second barrier to the coordination of benefit schemes in MP was the lack of a single unique identifier for each citizen. The Aadhaar personal identification number was rolled out across India from 2009 (Bhatia and Bhabha, 2017), connecting biometric data with an individual’s name, address, date of birth, gender and photograph. However, obtaining the Aadhaar remained legally voluntary, and although widely taken up (particularly by recipients of G2P transfers) it did not cover all citizens. Many benefit schemes were also governed by household eligibility, rather than personal circumstances – educational scholarships, BPL transfers, pensions and food rations, for example. These factors meant that each benefit scheme had created their own individual identifier codes for beneficiaries linked to their familial circumstances, inhibiting the sharing of data across agencies. The disbursement of a complex range of welfare provision in a country where only 40% of the population had a bank account in 2013 was further barrier to effective integration and consolidation of social protection (Bhatnagar and Gupta, 2013, page xvii). Three-quarters of the population of MP were living in villages and in 2010 one-third of them needed to commute more than 20km to make a transaction with a regulated financial institution (ibid, p3).The majority of benefit payments were being processed as cash or cheque, with no online tracking of the application progress available to either government officials or claimants, and no central record of disbursements across the wide suite of schemes.
Lastly, there was no effective monitoring or evaluation of the performance of different benefits schemes, either individually within departments or across the full range of government SP provision. As beneficiary data was recorded, processed and stored in myriad ways, it was not accessible to other government departments or the general public. This lack of transparency limited the potential for accountability measures to be put in place. It also meant that the government was unable to analyse the impact of each individual benefit or how the combination of benefits on offer interacted with each other to promote or limit holistic wellbeing in the population. Samagra was introduced in 2012 to address problems of fragmentation, poor targeting and inefficiency in the social protection system of Madhya Pradesh. It was also deemed a key component in the transformation of government social protection policy from a demand-driven and welfare-oriented model to one based on entitlements, automatically disbursed, as a constitutional right (Sharma, 2019). It has already significantly improved the inclusivity, efficiency and cost-effectiveness of the state’s SP infrastructure by providing a single, unified social registry system incorporating both personal identification and household eligibility with verification capabilities through a well-designed, secure internet platform. The use of in-house IT designers has enhanced the replicability, scalability and sustainability of the database, and several other Indian states have drawn on Samagra’s design to upgrade their own SP systems. It also enabled to merge schemes that had similar objective. The consolidation and streamlining of numerous and overlapping benefit schemes in Madhya Pradesh has led to significant governmental financial savings through a reduction in required personnel formally employed across multifarious government departments. A single, centralised repository of individuals, linked to their household eligibility criteria, has also increased the inclusivity, efficiency and effectiveness of targeting, allowing eligible citizens to receive all the benefits they are entitled to without the need for multiple application and verification processes. In this way, the government has been able to direct their SP budget towards eligible citizens while reducing cases of duplicate or fraudulent claims, resulting in large savings, particularly with regard to the scholarship and pension programmes.
From a citizen’s perspective, Samagra has removed much of the complexity involved in ascertaining eligibility status, and reduced the time and confusion involved in the application process. SP information is more widely available through the portal, and beneficiaries receive their entitlement automatically, as long as their data is kept up to date on the system. This has led to increased governmental transparency and accountability, fewer citizens being left out, and increased protection for the most marginalised and vulnerable in society. Read the conclusion on TheDailyGuardian.com.
Two decades of the Information Technology Act, 2000: Way forward
Phishing is a procedure to secure sensitive data, for example, usernames, passwords, and credit card
details, by taking on the appearance of a dependable element in electronic correspondence. Phishing is
ordinarily done by email and frequently guides clients to enter individual and financial details at a site.
Copyright and trademark infringement do happen on the Internet, yet the Copyright Act, 1957, or Trade Mark Act, 1999 which explicitly manages infringements, is quiet on the issue. In this way we have no implementation apparatus to guarantee the protection of domain names on the Internet. Transmission of e-money and exchanges online are not given protection under the Negotiable Instrument Act, 1881. Online security isn’t ensured; Section 43 (penalty for damage to computer or computer systems) and Section 72 (Breach of confidentiality or privacy) discuss it in some degree, yet don’t address the ruin caused by online infringements.
With the advent of newer technology and advancement in the mode of communications, the internet has become an essential part of our lives. The benefits of cyber technology are immense and many facets of modern life are completely dependent upon it; however, at the same time, in the wrong hands it can be more dangerous than a nuclear weapon. Crimes are no longer confined only to the physical space but have also entered the digital, as cybercrime. Cybercrime or computer-oriented crime, is one that involves a computer and a network. All the rapid advancements of internet and related crimes were needed to be regulated and therefore accordingly a new branch of jurisprudence emerged to tackle the problems of cybercrimes in cyber space i.e. Cyber Law or Cyber Space Law or Information Technology Law or the Internet Law.
The United Nations Commission on International Trade Law (UNCITRAL) adopted the Model Law on Electronic Commerce in 1996 and for the first time extended its efforts towards bringing uniformity in the laws of different countries. The General Assembly of the United Nations by Resolution No. 51/162 dated 30th January 1997 recommended that all States should give favourable consideration to this Model Law when they enact or revise their laws. The Model Law provides for equal legal treatment of users of electronic communication and paper based communication. The Information Technology Act, 2000 [hereinafter referred to as, “IT Act”] is also in consonance with the Model Law.
The IT Act, 2000 was passed by parliament on 15th May 2000, approved by the then President, on 9th June 2000 and enforced on 17 October 2000. It amended the following four Acts in the Indian legislation with its introduction: The Indian Penal Code, 1860; The Indian Evidence Act, 1872; The Bankers’ Book Evidence Act, 1891; and The Reserve Bank of India Act, 1934.
It is not only applicable to offences within India but also to offences and contraventions outside India (section 1(2)) and section 75 of the IT Act). Later on, the IT (Amendment) Bill, 2006 was introduced and passed in the Lok Sabha and amended the IT Act, 2000 by the Information Technology (Amendment) Act, 2008.
What were the objectives?
The then Minister of Parliamentary Affairs and Minister of Information Technology, Shri Pramod Mahajan, during the discussion on the Information Technology Bill, 1999 talked about the absence of a suitable law in India to deal with tampering of computer source documents, publishing information which is obscene in nature and issues relating to damage to computers and computer networks through a system of appropriate penalties and punishment. In furtherance of the same and making the law in tune with the Model law on e-commerce adopted by the UNCITRAL, the IT Act, 2000 came to life.
It is the enactment of the IT Act that provided legal recognition to transactions carried out by the means of electronic communication and has not only facilitated the electronic filing of documents and/or applications with the government but has also assisted and encouraged the use and acceptance of electronic records and digital signatures in government offices, making interactions between the government and civilians smooth and quick.
The government set up an expert committee to review the IT Act in January 2005. The committee comprised of representatives from the government, IT industry, legal experts etc. It found substantial lacunae in the existing Act and submitted its report in August 2005. It was noted that a lot of changes were required to the existing IT Act, 2000 because of the developments internationally and nationally especially in the area of the data protection and privacy. They observed that the field of cyber laws is a nascent area and experience of its formulation and implementation is still evolving worldwide and more so in India.
After due consideration and deliberation, the committee recommended that the IT Act should be technology neutral. It revisited the provisions related to data protection and privacy and proposed stringent provisions for handling sensitive personal data. The committee addressed the issue of liability of intermediaries and suggested amendments using the European Union Directive on E-Commerce as the guiding principle. It suggested severe punishments to prevent child pornography and also made recommendations on computer related crime and electronic evidence.
Later, the Information Technology (Amendment) Bill 2006 was introduced in Lok Sabha on 15th December in the year 2006. It was then referred to the standing committee on 19thDecember 2006. Further a report was submitted by the standing committee on 7th September 2007. The amendment Act was passed in the Lok Sabha on 22nd December 2008 and consequently in the Rajya Sabha on 23rd December 2008. The final assent was given by the President on 5th February 2009.
Highlights of the Information Technology (Amendment) Bill, 2018
Section 67BA is inserted by the Bill stating that whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is repugnant to well established cultural ethos, that person shall be punished on first conviction with imprisonment of either description for a term which may extend to six months and with fine which may extend to two lakhs INR.
Also, with respect to online gaming specifically, sections 67BB and 79B are inserted. Section 67BB states that whoever hosts any online game, which induces the users to commit any dangerous act which is harmful or any act that may cause injury or an illegal act, shall be punished with a maximum punishment of one year and fine which may extend to two lakhs and in the event of second or subsequent conviction, with imprisonment of either description for a term which may extend to three years and also with fine which may extend to five lakh rupees. Games such as the ‘Blue Whale Challenge’ have been said to inflict injury on a number of individuals, also in some cases, resulting in suicidal acts. This game in particular has gained a huge fan base in India among children leaving to a number of deaths and cases of depression amongst children.
Section 79B states whoever hosts an online gaming resource or produces any storage media containing a gaming resource to be sold offline, shall ensure that the game resource is categorised for use by appropriate age group on the basis of game contents; and there is a suitable mechanism within the game resource to warn the users against repeating the dangerous acts, if any, shown in the game in their real lives.
The IT Act has been quite useful in setting up the guidelines to settle the disputes pertaining to the internet/digital domain but specialists have also opined that the Act is a toothless legislation and has not been totally compelling in issuing punishments to the culprits. There are surely territories of digital laws which needs consideration. Some of the areas which could be worked upon includes:
Spam might be characterized as unsolicited bulk e-mail. At first, it was seen as a negligible irritation however at this point it is presenting major economic issues. Without sufficient specialized technical protection, stringent legislation is required to manage the issue of spam. The Information Technology Act does not talk about the issue of spamming. The USA and the European Union have authorized anti-spam legislation. Australia has exceptionally stringent spam laws (Spam Act, 2003) under which spammers might be fined 440 dollars per contravention for an individual with a maximum penalty of 22,000 dollars for a single day. Phishing
Phishing is the procedure of endeavouring to secure sensitive data, for example, usernames, passwords, and credit card details, by taking on the appearance of a dependable element in electronic correspondence. Phishing is ordinarily done by email and frequently guides clients to enter individual and financial details at a site.
There is no law against phishing under the Information Technology Act. Though the Indian Penal Code discusses duping, it isn’t adequate to check phishing. Recently, a phishing assault was seen on the clients of State Bank of India wherein a clone of the SBI site was utilized. What is more regrettable is that even SBI has not alerted its clients. So there is need of an enactment that prevents phishing in India.
Information Protection in Internet Banking
Users are assured by banks that their information will be kept confidential, however, the web banking system includes banks and their clients; but may also involve various outsiders as well. It is outdated for banks to hold data inside their very own computer systems. India currently has no laws on information insurance and therefore the risks associated with altering of personal information is pretty high.
The Information Technology Act discusses access; however, it does not discuss keeping up the integrity of client exchanges. The legislation does not set out any obligation upon banks to secure the details of clients and customers. U.K had an Information Protection Law enacted in 1998 which is repealed by the enactment of the General Data Protection Regulation (GDPR) under which banks or any individual holding sensitive data might be held liable for damages in the event of it neglecting to keep up satisfactory security protection in regard of information. In India, a bank’s obligation would be out of agreement as there is no resolution on the point. Cyber War
The issue of cyber war has not been talked about in the Act. India, as of late, has confronted various digital assaults from programmers outside of India who penetrated through the Indian firewalls. In the 26/11 attacks of Mumbai, various characterized information was given as intel to the culprits from other countries planning attacks against India. There are no arrangements in the Act to make such culprits liable for their activities.
Almost all cyber-crimes, barring a couple, are bailable offences under the IT (Amendment) Act, 2008. The quantum of civil liability is sought to be enhanced in the Act, while the quantum of punishment is reduced due to which convictions in cybercrime is very low.
Intellectual Property Infringement
The most widespread digital “abuse” that an individual makes these days is downloading motion pictures through distributed sharing systems. This is a widespread infringement of copyright laws; however, the numbers of culprits are so large that a successful measure cannot be taken to check it. So, to check the developing threat of digital violations, government through measures frequently deny access to sites. This has been contended to be a draconian measure and a violation of the right to speak freely and articulation under Article 19(1)(a).
Copyright and trade mark infringement do happen on the internet, yet the Copyright Act, 1957, or Trade Mark Act, 1999 which explicitly manages infringements, is quiet on the issue. In this way we have no implementation apparatus to guarantee the protection of domain names on the internet.
Transmission of e-money and exchanges online are not given protection under the Negotiable Instrument Act, 1881. Online security isn’t ensured just Section 43 (penalty for damage to computer or computer systems) and Section 72 (Breach of confidentiality or privacy) discusses it in some degree yet doesn’t address the ruin caused by infringements caused over the internet. Indeed, even the Internet Service Providers (ISP) who transmit some outsider data without human mediation isn’t made liable under the Information Technology Act, 2000. One can undoubtedly take cover under the exclusion condition on the off chance that the ISP demonstrates that it was submitted without his knowledge or that he practiced due perseverance to counteract the offense.
With the internet saturation on a rise in India, the evil of online piracy is growing at an alarming rate, and to fight with the problem of piracy, the Government of India was compelled to issue the Information Technology (Intermediaries Guidelines) Rules, 2011 which mandate an intermediary to observe due diligence while discharging its duties and not knowingly host or publish any information which infringes the Intellectual Property Rights of anyone. But the guidelines would not stop the piracy because of the vastness of the domain. Most of such records are made available on different websites, on or before the date of release. When a record is uploaded on the internet, it opens the floodgates for the masses to download it, thereby, causing heavy losses to the creators. The most difficult thing in the current piracy world is that the person who uploads such records on the internet is unknown to the world. Therefore, preventive action in the nature of ‘John Doe orders’ or Ashok Kumar orders has become significant globally to prevent intellectual property right infringements.
Suggestions and the Way Forward
When I look at the IT Act today, I strongly feel for the modernization of existing laws and enactment of new ones. Maybe it is time we need specific laws on Social Media, Fake news, and eCommerce. Often, we witness the application of two different legislations such as the IT Act and the IPC in a particular scenario. The decision of the Hon’ble Supreme Court in Sharat Babu Digumarti v. NCT of Delhi was followed by the Bombay High Court in Gagan Harsh Sharma v. The State of Maharashtra, holding that when an offence is sufficiently covered under the provisions of the Information Technology Act, 2000, the IT Act will apply as lex specialis to the exclusion of the Indian Penal Code, 1860. The IT Act, a later special law contained overriding provisions over IPC, a general law. Majority of the offences under the IT Act are bailable and compoundable and may also lead to amicable settlement between the parties, wherein, the offence under IPC may not be bailable and can attract higher punishment. Hence, if the complainant is willing to prosecute the offender under sections of IPC, it may deprive the offender from getting bail and from the case being settled, which the IT Act permits. Along with the IPC, the IT Act also at times collides with the Copyrights Act, 1957, the Companies Act, 2013 and the Contract Act, 1872. A settled principle on this point will make the implementation of the IT Act smooth.
Moving on, the reporting of cyber-crimes should be encouraged in order to devise proper mechanisms for its redressal. According to the data analysis of cybercrime, only 50 out of 500 crimes get reported. Here, I would also like to draw the readers’ attention towards the National Cyber-Crime Reporting Portal launched by the Ministry of Home Affairs, Government of India. This portal which can be accessed on https:// cybercrime.gov.in facilitates the victims/complainants to report the cybercrime complaints online and also has a special focus on cybercrimes against women and children.
We are surely in need for a universal regulatory framework mechanism which helps in the restructuring of the substantive as well as the procedural laws relating to computer generated crimes. The problems arising due to divergence of laws and procedure of different nations may be eliminated to a considerable extent if at least major cyber-crimes are uniformly recognized and incorporated by all the countries in their penal laws.
The internet being a borderless medium has often posed jurisdictional challenges in handling of crimes especially cyber defamation. Attention should be drawn towards the multiple publication rule which means that in relation to an online material, each ‘hit’ on the website creates a new publication, potentially giving rise to a separate cause of action if it contains defamatory material. Jurisdiction in such cases may be prescribed by the principles laid down in International Law or applying the Principle of International Comity so that if there is no particular law in the country, the court can resort to the principles already established in other legal systems of the world.
The use of strong encryption technology especially in government commercial organizations that are mostly dependant on massive computerization for the transmission of transactions or sensitive information, will enable them to keep their data safe from leakage or disclosure to public or hackers.
The data landscape of India is bound to witness a sea change with the enactment of the Personal Data Protection Bill but at present the IT Act and the rules made thereunder have not even defined the term ‘encryption’. Strange, isn’t it?
The Information Technology Act, 2000 puts forward reasonable provisions for studying and examining the law and strategizing the field of cyber-crime legislations; however, the legislation falls short of strict implementation of its provisions. This suggests that no penal legislation should be left open for expansive translations, particularly concerning the digital age because the internet provides us with certain freedoms in real life which might make transgressing any law easier for us. Hence, any administrative instrument or authoritative measure must try to be exhaustive, clear and interpreted restrictively. I am keenly looking forward to a wellequipped law which caters to the age of digitization and emerging technologies such as blockchains, artificial intelligence, and cryptos.
Stay Alert and Stay SafeYou’re on the Internet!
Making things happen: Municipal corporation turns Indore into cleanest city
Indore was known as an industrial town in the state of Madhya Pradesh but shot into prominence as it was declared as the cleanest city in the country in 2017. It continued to be awarded the cleanest city every year thereafter. What brought about a transformation that has been sustained now for so many years?
It wasn’t very easy to begin with. A number of challenges were faced initially to set up a system in the city:
• Insufficient knowledge and self-motivation of residents, community and operation staff • Weak financial support and management
• Lack of involvement of stakeholders, including the private sector and non-governmental organizations.
• Lack of public participation
• Lack of strengthening of institutions for monitor and enforcement To overcome these challenges, it was decided to transform the city through strategic planning and municipal waste management. Indore Municipal Corporation (IMC) developed capacity to collect, transport and treat 1100 tonnes of waste generated every day.
This was achieved through support from citizens and stakeholders in the following manner: • 100% source segregation of waste in dry and wet waste.
• 100% door-to-door collection
• 100% transportation of waste to processing facility
• 100% treatment of wet by composting • 100% treatment of dry waste in two material recovery facility.
• 100% utilization of all rag pickers in the city in material recovery facility
• 100% recovery of land from old dump by bio-mining process
• 100% vehicles equipped with GPS with geo tagging and real time monitoring through control room
• 100% workers registration with biometric system and wages directly to their accounts. Extensive work to strengthen infrastructure and efficient operation and maintenance of solid waste management waste was carried out.
Information, Education and Communication (IEC) was the key to behaviour change.
The first step therefore was to create awareness amongst the people and the community through pamphlets, loud speakers, rallies, meetings and public participation. Made them aware to segregate wet and dry waste, its benefits and consequences on human health & environment.
Door to door collection and transportation services were designed in such a way that the citizens got the services on all 365 days in a year irrespective of any National Holidays, Festivals and Sundays. Accordingly, a ward wise deployment plan of sanitary workers, drivers and utilization of vehicles was prepared.
For better segregation 3 bins are used in each house. Door to Door collection of waste is being done in all 85 wards of city using partitioned vehicles. There are three separate collection compartments for wet, dry and domestic hazardous waste in each tipper. The wet waste from semi bulk generators generating 25 to 100 kg of waste is collected through the dedicated Bulk Collection System.
The wet waste collected is transported by the tippers to one of the ten transfer stations. At the garbage transfer station (GTS), the tippers unload the wet waste into dedicated compactors which compress and load the wet waste on dedicated hook loaders.
The details of all the incoming waste collection vehicles are logged in the log books at the GTS. Aadhar based Biometric attendance of all the workers is taken every day. All vehicles are monitored by a GPS enabled tracking system. Any route deviation is penalized and multiple deviations are grounds for termination. Sweeping of roads less than 18m wide is done manually by sanitary workers of IMC and wider roads are cleaned by 10 ultra-modern mechanized road sweeping machines. 400 km roads are mechanically swept between 10 pm and 6 am. Gangs of workers are deployed along with to wash the squares, footpath and monuments with pressure jet machines.
10 ultra-modern transfer stations have been developed at strategic locations to transfer the waste from small tippers to big hook loaders. From these transfer stations, wet waste is sent for processing. The segregated MSW is compressed into respective containers. They are then lifted by dedicated hook loader and sent to disposal site.
The bucket for the sanitary waste and domestic hazardous waste is off loaded into dedicated drums and is transported to Common Biomedical Waste Facility (CBWTF) regularly. The IMC took over an existing under-performing Centralized Organic Waste Processing Unit. After the takeover, complete overhauling of the plant, including repair of the machinery, was done. The compost plant is now working to its capacity of 600 MT of wet waste per day.
IMC established decentralized aerobic pit composting units in 414 gardens to treat lawn cuttings, leaves and tree branches. Depending upon the size of garden and quantity of garden waste generated the onsite composting facility for garden waste has been developed. Decentralized processing for wet waste has been developed at vegetable and fruit markets and at Khajrana Ganesh Mandir for converting flower waste into compost through Organic waste converter System. Mobile Composting Vans for onsite treatment of Organic Waste generated from small food joints and restaurants has been deployed on contract basis.
The IMCtook the initiative to produce and utilize Bio CNG produced from processing of Municipal Solid Waste. The project with 20 TPD capacity is in one of the whole sale market of Fruits and Vegetables in Indore. This plant generates Bio CNG for public transport. It generates methane gas which is converted into CNG and utilized. 15 buses in Indore run on the Bio-CNG and consuming nearly 500 kg of gas per day & cover more than 2000 km per day.
On segregating dry and wet waste, around 500 TPD dry waste is generated. To handle and process such large quantity of dry waste, IMC has developed Material Recovery Facility. At this material recovery facility various fractions of dry waste like plastic, rubber, leather, glass, metal, cloth etc. are segregated by registered rag pickers. 1753 rag pickers were identified after extensive survey.
The non-biodegradable waste is segregated by category at the site. The recyclable low-density polyethylene (plastic bags) gets cleaned and sent for recycling at existing plastic briquetting unit, where the plastic briquettes are sold to an irrigation pipe manufacturer. Other smaller-volume recyclables such as paper / carton, glass, metals, HDPE, PPP, and PET are cleaned, sorted, bundled and traded to wholesalers at a cost-plus margin.
A construction and demolition waste processing plants of 100TPD capacity has been developed and 4 transfer points for C&D waste have been developed within the city.
The success of Indore shows that this is doable. It is a lighthouse project for MP and for other similar cities across the country. What is even more remarkable is that the wonderful and exemplary work initiated under the inspired leadership of the then Municipal Commissioner, Manish Singh was carried forward, consolidated and sustained by his extremely competent successor, Asheesh Singh . They have demonstrated that it-can-happen.
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Office. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
PM Modi, only you can root out drug menace
The youths will have to be saved from drug abuse, for the whole country will be ruined if the younger generation went astray.
I would like to thank Kangana Ranaut who has brought the issue of drug and substance abuse once again into the public domain through her aggressive campaign. It is indeed unfortunate that our younger generation is getting addicted to drugs. The country will be ruined if the younger generation is not saved from this peril. Now Modi ji is the only hope, for he has the grit to eliminate the drug mafia.
Dear Prime Minister Narendra Modi ji, You are the only person who can obliterate drug menace from India and save the younger generation from drug abuse. If the younger generation survives, the country will survive. If the younger generation is ruined, the country will be ruined too.
I am directly addressing you because the agencies that act against the drug trade are under the control of the Central government. The second reason is that you are strongly opposed to the growing drug addiction among youths. You may not have had the time to pay attention to this issue due to your multiple commitments and work pressure, but this is the most pressing issue today. If you make up your mind, you can eliminate the drug trade because you possess that determination. For once, we may ignore economic offences for some time. Smuggling of wood to medicine and gold and silver can be ignored for once but we cannot allow the spread of drugs into India. No Indian would want to, no parent would want their child to get addicted to drugs and be ruined. Everyone who got into the trap of drugs was ruined.
I would illustrate my point by giving an example of my own state Maharashtra. There are three important centres here – Mumbai, Pune and Nagpur. When I used to study in college in Mumbai, the picture of ‘Bhole Baba’ in any paan-cigarette shop was an indication for the people to understand that it sold drugs. I am talking about the 1968 era. Since then, I see that this illicit trade has continued to grow. Today, drugs are easily sold near schools and colleges. There are reports of drugs being sold even near the police station and the police headquarters. It is a matter of great sorrow and misfortune that the state government turns a blind eye to it. People feel that the police have full knowledge about this illicit trade. So what prevents the police from stopping it only they can tell!
Today, Pune has become a hotspot of drugs business. Pune has the highest number of students and most of them are from outside. Drug addiction is spreading rapidly among them. Nagpur is also one of the secret bases where underground activities are carried out unhindered. It is said that Nagpur is the centre of distribution. This drug addiction is so bad that when young men and women get nothing, they consume balm or cough syrup. The Narcotics Control Bureau and the National Investigation Agency have also been monitoring Nagpur, but the kind of strict action that should be taken is nowhere to be seen.
Uddhav Thackeray ji, you are the chief minister of Maharashtra and I know that you have zero tolerance for drug abuse in Maharashtra but unfortunately people are falling prey to this menace on a large scale! Even foreigners operate drug trade in Mumbai. So the question is why was investigation not initiated or strict action taken when the videos of Karan Johar’s party or other rave parties appeared on social media? Carrying or consuming drugs is a serious crime, so why were they not caught under the law? I would like to thank Kangana Ranaut for showing courage to raise this issue. She has adopted an aggressive stand on the issue of substance abuse.
This issue is not exclusive to Bollywood. Even Tollywood and the regional film industries are under its grip. Obviously, we use something when we have it in abundance. Drug menace in Punjab has reached its peak and attracted a lot of opprobrium. But even Bihar, UP or Rajasthan are not far behind Punjab! Delhi’s schools and Delhi’s rave parties have attained notoriety for drugs! People say that many politicians have also participated in these parties. Who does not know the activities of Delhi’s farm houses? There was a time when people used to ask questions to politicians and the latters were afraid.
Now no one asks questions nor is anyone afraid. It is our misfortune that India has become the hub of the international trade of drugs. Drugs dispatched from Pakistan, Myanmar and Nepal borders, besides Mexico, reach India via Brazil, Africa, Dubai through the Arabian Sea route. Terrorist groups are involved in this drugs trade. They are destroying the lives of our youths and also making money for purchasing lethal weapons. Drugs and arms dealers run parallel governments all over the world. The US has succeeded in putting an end to this menace to a great extent, but if we do not take effective steps to break this nexus in India, the time will write a painful story of destruction.
The Interpol, World Narcotics Association and antiterrorist agencies meet every year. They have also mapped out the drug hubs. Our officials also attend those meetings. If a concerted action is taken with international cooperation and the policy of ‘zero tolerance’ is adopted towards drug abuse, it will not be very difficult to wipe out this menace from India. After all, why are drugs not available in Singapore? This is because drug traffickers get the mandatory death sentence in Singapore as those found in possession of dangerous drugs are hanged irrespective of their status.
In India too, we have to adopt an effective approach because this country has to be saved. If the younger generation survives, the country will survive. Once a person gets addicted to drugs, no one can save him or her. A reflection of what this addiction could lead to was seen in Delhi when a drug addict indulged in an indiscriminate shootout. Against the backdrop of the growing menace of drug abuse among youths in the country, I feel horrified to think how I will be able to save my family members. Just a thought is enough to send a chill down the spine. The very thought that your near and dear one is addicted to drug or substance abuse is enough to trouble your soul. Every parent is afraid of the drug addiction and wants to keep the child away from it. And therefore, we all have great hopes from you, Modi ji!
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha
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
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