This article is written by Daksh Ghai, from Symbiosis Law School, Noida. The article provides a brief overview of a number of issues in India that need to be addressed through devoted legislation.

Legislation governing refugee treatment

The rights of migrants and refugees in India are still unresolved since India is not a signatory to the 1951 United Nations Convention Relating to the Status of Refugees and it is not obligated to observe the convention’s principles. In India, there is no explicit statute that stipulates the rights of refugees. The Indian Constitution ensures that all people, not only Indian nationals, have access to certain fundamental rights. As a result, people fleeing their home countries and seeking refuge in India are protected by those fundamental rights, regardless of the Indian government is a party to any international treaty. The Constitution guarantees all people, including asylum seekers and refugees, the following essential rights:

Right to equality before the law (Article 14)

Within the territory of India, the State shall not deny any person equality before the law or equal protection under the law. This article stipulates that there should be no discrimination among people or classes of people unless the legislature has made a reasonable classification between the various classes thus discriminated, and the foundation of the discrimination must be related to the objective of classification.

Protection of life and liberty (Article 21)

The law has a duty to protect one’s life or personal liberty and it cannot be taken away from them unless they follow the proper legal procedure. The Supreme Court ruled in the cases of Louis De Raedt vs Union of India (1991) and State of Arunachal Pradesh vs Khudiram Chakma (1993) that foreigners are also entitled to protection under Article 21 of the Constitution. This provision’s scope and reach have been greatly increased. While Article 21 was interpreted narrowly until 1978 as a bare safeguard against executive action not supported by law, it has since been well-established by a series of judgments dating back to Maneka Gandhi vs the Union of India (1978).

Right to a fair trial 

The Supreme Court in the case of Zahira Habibullah Sheikh and Ors. v. State of Gujarat and Ors (2006) has recognised that everyone has a right to be dealt with fairly. As stated in Article 22(2), every person who is arrested will have a right to appear before a magistrate within 24 hours of being arrested.

Expansion of judicial powers

The courts have played a critical role in ensuring the safety of refugees. Court rulings have remedied legislative loopholes and, in many situations, provided refugees with humanitarian security. Furthermore, Indian courts have made it possible for refugees and intervening non-governmental organisations to file complaints with them. In addition, the courts have interpreted constitutional principles, existing legislation, and, in the absence of municipal law, international law requirements to provide protection to refugees and asylum seekers. In a series of decisions like the case of Luis de Readt vs Union of India (1991) and State of Arunachal Pradesh vs Khudiram Chakma (1993), the Supreme Court held that article 21 of the Constitution, which protects the life and liberty of Indian citizens, is extended to all, including aliens and the state is bound to protect the life and liberty of every human being. In the case of National Human Rights Commission vs State of Arunachal Pradesh (1996) the Supreme Court restrained the forcible expulsion of Chakma refugees from the state. Indian courts have ruled that refugees are entitled to the constitutional protection of life and liberty. 

Need for legislation on refugees

Indian law and practise provide refugees with a distorted and insufficient level of protection. In India, the law fails to recognise refugees as a separate group of people, by treating them as any other immigrant. As a result, it fails to recognise the unique circumstances under which a refugee leaves his or her home country. The lack of a particular law on refugee protection, rights, and entitlements has resulted in a huge number of refugees being denied basic protection and there is a need for new devoted legislation for the protection of the refugees.

Law on traditional cultural expressions

India is one of the world’s oldest cultures and one of the largest stores of language, music, art forms, designs, markings, and other forms of cultural expression, including a diverse spectrum of traditional cultural expressions(TCE). Industries that understand the potential of such resources frequently misappropriate and misuse such knowledge and resources. India is the only country to have implemented the requisite designation under Article 15(4) of the Berne Convention, which requires States to vest the work of an unknown author or group of writers in a national authority, subject to a WIPO declaration. Even though this field has significant economic and cultural relevance for the country, it presently lacks the attention of the government and any sort of legal framework.

India’s current legal and institutional frameworks

Due to a variety of groups and indigenous people residing in various parts of the country, India’s heritage is broad and diverse. There have been discussions about enacting separate legislation to protect traditional cultural expressions but there exists no legislation on this topic. The existing legislative framework in India for governing traditional cultural expressions are:

Constitution of India

In Part III of the Constitution, Article 29 of the Constitution relates to the protection of minorities’ interests. Any section of citizens residing in the territory of India or any part thereof who have a separate language, script, or culture of their own, shall have the right to retain it, according to Article 29(1) of the Indian Constitution. The provision does not relate to any religion in particular, but rather safeguards the rights of the minorities who speak a different language, script, or culture than the majority, even if they practise different religions. Furthermore, Article 51A(f) imposes a fundamental obligation on every Indian citizen to cherish and maintain the rich history of our composite culture. While the Indian Constitution grants minorities the right to safeguard and conserve their traditions, they cannot be properly protected without suitable legislation in place to ensure that their cultures and traditions are protected.

Geographical Indication 

With the passage of the Geographical Indications of Goods (Registration & Protection) Act, 1999, India adopted a one-of-a-kind law for the protection and preservation of geographical indications. Its goal was to align India’s intellectual property legislation with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which required all signatories to provide legal mechanisms to assure the protection of geographical indications (GIs) and to avoid the public from being misled about the origins of such GIs; this does not exempt these items from the issues that afflict the realm of Intellectual Property Rights. The GI Act, on the other hand, contains numerous flaws that render it ineffective for TCEs:

• Registered proprietor

According to Section 2 of the Act, the registered owner of a GI must be an association of persons or manufacturers or any organisation. This necessitates collective action, which necessitates supply chain reform and control. All parties along the supply chain need to work together for a GI to be implemented successfully. As a result, any opportunistic behaviour on the part of a single manufacturer, in terms of lowering quality to gain profit margins, would have an influence on GI’s collective reputation.

• Ownership of Geographical Indications

Another flaw with GI is that most handicrafts and handloom products are owned by the traders who sell them. Traders are included in the definition of producers in most Asian countries’ GI legislation, allowing them to be recognised as owners of such GI items. In most conventional businesses, merchants tend to have more capital and market influence, thus they are frequently credited with ownership. As a result, the regular weavers of the fabric are left in hardship and distress, and the traders exploit them for meagre wages.

Copyright

The legal right of the owner of intellectual property is known as copyright. Simply put, copyright refers to the ability to duplicate. This means that only the original producers of items, as well as anybody they provide permission to, have the sole right to replicate the work. Publications, music, paintings, sculpture, films, computer programmes, databases, ads, maps, and technical drawings are all covered by copyright. Copyrights, on the other hand, are still unable to create a framework for traditional cultural expressions due to:

• Authorship and ownership

Individuality, rather than collectivism, is at the heart of copyright protection. However, in the case of traditional cultural expressions, attribution of a specific statement to a single author or a group of authors is impossible. This is because traditional cultural expressions are made communally, which is incompatible with the characteristics required for a work to be protected by Indian copyright law.

• Fixation

Traditional cultural expressions might be intangible, immaterial, or even in hybrid forms, according to WIPO’s definition. The Indian Copyright Act makes “fixation” a requirement for copyright protection of oral works. It is impossible to have traditional cultural expressions in any fixed form due to the wide range and dynamic nature of traditional cultural expressions, which include physical, intangible, and mixed forms of expression.

• Duration

Given the nature of traditional cultural expressions, granting a restricted time would be insufficient for their protection, as mentioned above. The current copyright policy offers protection during the author’s lifetime as well as sixty years from the year of the author’s death. By inference, once the sixty-year period has expired, the work will fall into the category of “public domain,” making it more subject to exploitation as it is passed down from generation to generation. As a result, once the protection period expires, such traditional cultural expressions become easy prey for enterprising individuals who can use them without restriction or limitation.

Other developing countries’ initiatives to conserve traditional cultural expressions

Kenya

Kenya passed the ‘Protection of Traditional Knowledge and Cultural Expressions Act’ in 2016 as a result of Article 11 of their Constitution, which required them to pass laws to promote the country’s culture and cultural heritage. The Act establishes the foundational legal framework for the protection and promotion of traditional knowledge and cultural expressions. Community, cultural manifestations (both tangible and intangible expressions), cultural heritage (both tangible and intangible heritage), customary rules and practises, and other categories have been extensively defined in the legislation; disrespectful treatment, exploitation, and other terms and phrases that are essential to ensure that their cultural legacy, expressions, traditional knowledge, and genetic resources are properly protected. The Act establishes a tangible structure to ensure that rights are adequately protected and criminalises the misuse and exploitation of traditional knowledge and traditional cultural expressions.

Panama

In the year 2000, Panama created a one-of-a-kind law regarding TCEs. The ‘Special System for the Collective Intellectual Property Rights of Indigenous Peoples‘ was established to safeguard indigenous peoples’ collective intellectual property rights, traditional knowledge, and traditional artistic manifestations through a unique system for registering and promoting their rights, as well as ensuring social fairness.

Electronic data protection legislation

Maintaining databases is not as complex as ensuring their integrity, thus the most important thing is to come up with a great data protection technique. With the advancement of technical development, a shift in the standard of crimes occurred. In today’s world, most crimes are committed by professionals using the most convenient media available, namely computers and other devices. Criminals can gain access to protected information with just one click. The desire for knowledge is a driving force behind the rise of these crimes.

Data protection law in India

Data protection relates to concerns with the collection, custody, accuracy, and use of data submitted by internet users when using the internet. When users engage in e-commerce on any website, they expect their privacy rights to be protected. It is all part of the consumer’s confidence-building function that successful e-commerce enterprises must play. If the industry fails to ensure that the privacy of the data it collects is protected, it will be the responsibility of the government to implement legislation. The law relating to privacy is covered by Article 21 of our Constitution, and the Supreme Court of India declared in K.S. Puttaswamy vs. The Union of India (2018) held that the right to privacy is a fundamental right, however, it has been found that it is insufficient to provide proper data protection. Under the IT Act of 2000, our lawmakers attempted to address privacy issues relating to computer systems. 

How is electronic personal data regulated currently?

Citizens’ personal data is currently governed by the Information Technology (IT) Rules, 2011, which are enforced under the IT Act, 2000. In the event of any negligence in upholding security standards while dealing with the data, the rules hold the companies using the data accountable for paying the individual. According to the Expert Committee’s assessment, while the IT rules were a new attempt at data security at the time they were enacted, the speed with which the digital economy has developed has shown the acts inadequacies like:

• The regulations’ definition of sensitive personal data is restrictive.
• In addition, the IT Act only applies to companies, not to the government.
• Some restrictions can be overcome by a contract.

Data protection laws and regulations in other countries

United Kingdom

In 1984, the UK Parliament enacted the Data Protection Act (DPA), which was later repealed by the Data Protection Act, 1998. This Act was enacted to provide protection and privacy for individuals’ personal data in the United Kingdom. The Act applies to any information that can be used to identify a live person. This includes information such as names, birthdays, anniversaries, addresses, contact information, fax numbers, and e-mail addresses, among other things. It only applies to data stored or intended to be stored on computers or other equipment that operates automatically in response to instructions or is stored in a relevant file system. Persons and organisations that hold personal data are required by the Act to register with the Information Commissioner, who has been selected as the public official in charge of overseeing the Act. The Act imposed constraints on data collection. Personal data can only be gathered for one or more specific and lawful reasons, and it must not be handled in any way that is incompatible with those goals.

United States of America

Even though both the United States and the European Union are focused on improving citizen privacy protection, the United States takes a different approach to privacy than the European Union. The United States took a sectoral approach, relying on a combination of legislation, regulation, and self-regulation. In the United States, data is classified into numerous categories based on their utility and significance. Following that, different levels of protection are assigned to different types of data. Several acts were also passed in order to stabilise the country’s data protection regulations.

In 1974, Congress passed the Privacy Act which established guidelines for when it is reasonable, ethical, and justifiable for government agencies to compare data across databases. Another Electronic Communications Privacy Act (1986) was passed to limit electronic communications interception and ban access to stored data without the user’s or communication service’s consent. Furthermore, in October 1998, the US Congress passed the Children’s Online Privacy Protection Act, which required website operators to obtain parental consent before collecting personal information from children, and the Consumer Internet Privacy Protection Act, which required an internet service provider to obtain the subscriber’s permission before disclosing his personal information to third parties.

Devoted legislation for euthanasia

Euthanasia is defined as a physician’s act or omission that results in the death of a terminally ill patient, usually through the prescription of medicine, the administration of a deadly injection, or extubation. Involuntary euthanasia refers to the killing of a person who has not expressly asked for assistance in dying. This is usually given to patients who are in a permanent vegetative state (PVS) or a coma with little or no possibility of recovering consciousness. When all other life-saving procedures fail to provide a better life for a terminally ill patient or one who is in a vegetative state, euthanasia is considered the sole realistic alternative.

• Active euthanasia

It is a situation in which a doctor has the authority to end a person’s life. This procedure is also known as ‘Positive Euthanasia’ or ‘Aggressive Euthanasia.’ The doctor may intervene directly and suggest a painless manner of ending a person’s life. Consent of the individual whose sufferings are continuous and everlasting remains the most important factor. This is a faster way to die by taking a lethal dose of a drug or injecting a lethal drug.

• Passive euthanasia 

It is the deliberate deprivation of necessary care, such as food or water, in order to cause an individual’s death. It is a deliberate stoppage that also entails the removal of artificial life support systems. It is a more pleasant procedure than the active method and is called a slow killer. It is only used when the person is no longer intellectually or physically alert. Medical tests and measures such as the Glasgow Coma Scales (GCS) are used to determine whether or not a person is mentally vegetative. This is a legal privilege granted to those on medical life support in several nations and states.

The judiciary’s role 

• The disagreement in the case of M.S. Dubal v. State of Maharashtra (1986) was about the negative and positive aspects of the rights granted to the people. The Bombay High Court concluded that Article 21 of the Constitution of India included the right not to live. The court held that those who attempt suicide due to mental problems require psychiatric care, not imprisonment in jail cells, where their condition is sure to worsen, leading to severe mental derangement. The judgement was furthered in the case of P. Rathinam v. Union of India (1994), which found in favour of the motion and allowed assisted suicide, added to the precedent.
• The judgement was later contradicted and overruled in the case of Gian Kaur v. State of Punjab (1996), which found that Article 21 cannot encompass the right to die or be killed. The five-judge bench in Gian Kaur v. State of Punjab reinstated Section 309 of the Indian Penal Code, 1860, and the judgement stated that, under the ambit of Article 21 of the Indian Constitution, the part of right to live only includes the aspect of life and thereof, and nowhere does it include the aspect of the right to die. Passive euthanasia and assisted suicide were declared illegal as a result of this particular case.
• The Supreme Court noted the importance of the idea of euthanasia in the case of Aruna Shaunbaug v. Union of India (2011), that the right to life can be understood as the right to a life of dignity and worth. This long-awaited decision, which was a difficult battle in and of itself, aided in raising public awareness about the issue, and the debate about the legality of passive euthanasia entered our culture, only for terminally ill patients and through the termination of medical life support. 

Legalising euthanasia 

An end to suffering

Allowing patients to end their suffering is essential in upholding the right to personal and bodily autonomy. Euthanasia provides a way to relieve the intolerably extreme pain and suffering of an individual. It relieves terminally ill people from a lingering death.

A dignified death

The essence of human life is to live a dignified life, and Article 21 of the Indian Constitution expressly states for living with dignity and It is also against the person’s will to be forced to live in an indecent manner.

Euthanasia and assisted suicide laws around the world

In April 2002, the Netherlands became the first country to legalise euthanasia and assisted suicide. The country had set tight standards and restrictions, such that, the patient must be in severe distress, their sickness must be terminal, and the demand must be made by the patient in full consciousness. In the same year, Belgium passed legislation legalising euthanasia. While the law does not specifically make reference to assisted suicide, doctors can assist patients in ending their life when they openly declare a desire to die due to intractable and terrible pain.

Legalizing and regulating prostitution

Prostitution is one of the oldest professions and has been in existence for ages, and its criminalization has not resulted in its eradication by any means. The laws governing prostitution in our country are proving to be detrimental to the interests of women rather than relieving them from the grip of traffickers, middlemen, local police, brothel owners. The only way to ensure that prostitutes have a better life is for the profession to be legalised and regulated. Though there is no denying that, given Indian society’s conservative mindset and moral benchmarks, such a progressive step is not easy for the legislature to take. However, in order to prevent unfavourable outcomes, the legislature must enact such legislation while maintaining that prostitution is not deeply immoral and cannot be prohibited. More significantly, legalising prostitution would protect sex workers’ rights and provide them with the opportunity to live the normal lives they deserve. 

The present legal status of prostitution in India

The Immoral Traffic (Prevention) Act, a 1956 amendment to the basic statute known as the Immoral Traffic (Suppression) Act, governs prostitution in India. Prostitution is not illegal in and of itself; only organised forms of prostitution are prohibited. The Act does not punish a woman if she uses aspects of her body deliberately and individually. However, the Act forbids/criminalizes-

• Customer solicitation
• Prostitution within easy reach of a public area
• Publication of call girls’ phone numbers
• Organized prostitution, such as a brothel, pimps, prostitution rings, and so on
• A sex worker who is under the age of 18
• Women’s prostitution and trafficking

Need for legalisation and regulation of prostitution

• HIV/AIDS has been a major source of worry among prostitutes. In 2017, it was estimated that 1.6% of Indian, female sex workers were living with HIV. They pick up the virus from affected consumers and are likely to spread it to other healthy customers. It is easy to foresee the destruction that unregulated prostitution can wreak. Awareness programmes educating prostitutes on the importance of protected sex and frequent health examinations can be conducted if the industry is legalised and controlled.
• The trafficking of girls, where they are trafficked without their consent and forced to service the clients, would be curtailed by regulated prostitution. They are forced to stay in deplorable living conditions, and they are denied even basic and necessary rights such as the right to education, the right to freedom, the ability to establish associations, and the right to be free from exploitation. If a dedicated law on the regulation of prostitution is passed, access to these rights will be guaranteed to them.
• Prostitutes are not covered by current labour laws. The government can, however, make rehabilitation facilities available. If the profession achieves legal recognition, labour laws may be extended to prostitutes employed by brothels.
• Prostitutes rely heavily on the police to keep their businesses running smoothly. Police extort money from brothels and prostitutes in exchange for their freedom to work. Any prostitute who refuses the bribe is caught ‘red-handed’ and charged with public obscenity and other IPC offenses. These ladies are also subjected to financial exploitation as a result of the police’s actions. Such exploitation will come to a stop if prostitution is authorised and regulated.

Laws and regulations in other countries

• In Austria, prostitution is legal. Prostitutes must register, submit to regular health tests, be at least 19 years old, and pay taxes.
• Since 2003, prostitution has been regulated and lawful in New Zealand. There are even regulated brothels that operate under public health and employment rules, meaning that their employees are entitled to the same social benefits as employees in other sectors.

Conclusion

The laws described above are not exhaustive, they are far from it, and India’s population and diversity necessitate the introduction of many new and devoted laws, as well as the repeal of old ones and for any legislation to be effective, it must have a viable enforcement mechanism. In India, considering the socio-economic background of indigenous communities, the Government must ensure that the legislation is implemented as it is laid down. Hence, there should be a monitoring system to closely observe the effectiveness and implementation of the proposed sui generis legislation.

References

• https://lawcommissionofindia.nic.in/reports/report241.pdf

• https://www.theguardian.com/society/2014/jul/17/euthanasia-assisted-suicide-laws-world#:~:text=Netherlands,full%20consciousness%22%20by%20the%20patient.
• http://www.ris.org.in/fitm/sites/default/files/Scooping%20Paper%20No%203.pdf

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