Marital Rape: A Stigma on the Institution of Marriage in India

March 24, 2015

This article has been written by Pragya, a student of New Law College, BVDU, Pune and Gaurav Prakash, an advocate.

Table of Contents

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Introduction
Interesting Facts
- Haryana- Land of the Lowest sex ratio
- Marital rape laws in other countries
Conclusion
References

Introduction

As Indians, we all get archaic by what we watch on television or in movies. Movies are the part and parcel of our life. We learn how to dance, how to romance and even how to impress our love interest through movies. One thing that was always shown in a bad taste was the hero of the movie chasing a girl despite her turning down the advances of the male protagonist. This message has misguided a lot of youth and especially those who have the eligibility of being called as one side lovers. Even if girls seriously deny the proposals their denial is not taken seriously. This mindset and perception carry over even when a boy becomes a husband and the opinions and aspiration of his wife in bed is also of no or little significance. But this misguidance was tarnished by Amitabh Bacchan in the year 2016 when he showed us the meaning of No in the Movie “Pink”. In the movie, Amitabh Bachchan stated that when a woman says no, she means so and one should stop that time.

Society keeps on reconstructing and sometimes that reconstruction is quite evident in movies. It is not necessary that rape can be committed by a stranger, sometimes the offender can be your husband. Women sometimes are not safe even at their homes. Justice Verma Committee which was formulated after Nirbahya Case stated that its time that India should make law on Marital Rape. But on the other hand, The Indian Penal Code gives primacy to marital status over consent. Section 375 of the Indian Penal Code defines the Offense of Rape stating that a man is said to commit “rape” if he penetrates his penis, to any extent, into vagina, mouth, urethra or anus of a woman or make her do so with another person. The exception in Section 375, which deals with rape, states that sexual intercourse “by a man with his wife, the wife not being under fifteen years of age, is not rape”.

Where both of them are separated, while an act of rape is recognised, it carries a far lesser sentence — Section 376 [1] states that punishment for rape should be seven years to life; Section 376B fixes the punishment for non-consensual sex with a wife who is separated at only two to seven years. [2] The state, while providing an exemption in cases of marital rape, makes a classification between married and unmarried women i.e. Differentiation based on marital status. This differentiation is neither reasonable nor does it further the object of the given Act (in this case, IPC). Moreover, it is arbitrary. Hence, it is submitted that it violates Article 14 of the constitution and Article 21. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

Another anomaly is when the exemption is for only those cases of rape committed against women above the age of 15 years, why is there a lesser penalty of 2 years imprisonment as against 10 years imprisonment in other cases. These are some questions which the judiciary of our country, unfortunately, fails to decode. Judiciary system of our country is very much satisfied with not accepting the fact that marital rapes can happen in a country where marriage is considered as a sacred institution, but they fail to notice some of the statistics which are quite alarming for preventing the criminalisation of Marital Rape. Let us look at the shocking incidents across the country.

Interesting Facts

Rape conducted by husband is called Marital Rape. Sexual relationship when conducted by force or threat takes the shape of Rape. According to the UN report on India, about 2/3 of women aged between 15 and 50 have been the victim of marital rape or sexual rape. India being conservative on the issue of sex generally oppressed the victims. According to NCRB, 98% of all rapes involve perpetrators familiar to survivors. These presumably include friends, acquaintances, colleagues, and relatives. But husbands? [3] A wife is expected to fulfill all the wishes of her husband and agreeing for sex is one of them. His sexual appetite is the responsibility of a wife which she has to bear even if she is not at all interested in doing so. Women’s independence, integrity, dignity, right to live, all and everything are alienable; sometimes she is staked and diced as a possession, sometimes she is required to prove her fidelity by entering fire. Sometimes her survival is contested legally and politically. She exists in the body with no self-identity separated from family. She is socially and politically dead with no expression and no claims. Women cannot speak of their issue to anyone and in our country, no law considers this as a legal offence.

Marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing the husbands, as it is already been witnessed by our country that section 498A IPC has become an easy tool by wife for harassing her in-laws. But this cannot be the sole reason for denial of criminalisation of marital rape as many laws are subject to misuse and one cannot deny the fact that every woman has the right over her body irrespective of her relationship status. The mental state of our society also plays an important role here as our society expects women to withstand all the mental torture, physical torture to protect the marriage. The word adjust is often used by our society to persuade women to bear all those sufferings in which a rape victim suffers in the hands of her husband. In over 80 countries in the world, marital rape is considered a crime but marriages in India are considered too sacred that it has not come under legal ambit. The question here arises, why does the act of rape or sexual violence changes when it is done with wife by her husband and when it is done by a stranger to a woman.

Complexities and contradictions have become part and parcel of our legal system. Here rape is considered rape in the live-in relationship whether the duration of the relationship is long or short but this is not the case in marriage. According to Supreme Court judgment, live-in relationship couples are treated the same as legally wedded couples. In the case of S.P.S. Balasubramanyam vs Suruttaya [4] the court stated that if a couple is living together for several years with each other and a child is born out of their relationship then in that condition it will be considered as a legitimate child. The question arises if live-in partners can file a case of rape or sexual harassment against their spouses then why that legal remedy is not given to the wife who is legally wedded to her husband. In yet another case of Suchita Srivastava v. Chandigarh Adminstration,[5] the Supreme Court, while considering a case on abortion, held that “There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India.

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Given this, a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or the insistence on the use of contraceptive methods’. The court also observed that rape can be equated with a `grave injury to the mental health’ of a woman. In the light of recent UN reporting, it stands true that women in India are 40% more likely to be raped by their husbands than by a stranger. In 2015, a woman reported having been raped and assaulted by her husband, and though she was hospitalised for the injuries she suffered, her husband was not prosecuted. When she filed a petition before the Apex Court of India, it was dismissed with the court saying that “the law was not to be changed for the experience of one individual.

Haryana- Land of the Lowest sex ratio

A social survey was done in Haryana where it was found that people find it difficult to understand that a wife cannot be raped in society, as it is the sole duty of her husband to quench his thirst for sex and she has to abide by him. Next, one of the most shocking thing which was quite evident in the survey was that people lacked any compassion for the victim, people bluntly stated that one cannot be blamed for rape as both are equally responsible for it. If a stranger rapes a girl then her clothes, her attitude is blamed for rape and if her husband tries to sexually molest or rapes her then it is not even considered as legal offence as one of the reasons for marriage is to fulfill sexual desires. Let us look at some incidence narrated by the sexual victims who were the better halves of their husbands.

Janaki is both physically and psychologically distraught. She was raped by her husband, not once but on many occasions. She confides in her mother. But to her utter shock, her mother confesses that she has been subjected to a similar fate in her own married life. In disbelief, Janaki snaps, “But dad loves you so much!” The mother justifies, “In the bedroom, he doesn’t ask for permission.” And now it’s been so long that she has surrendered herself to the unpleasant feeling. Men believe that it is their sole responsibility to be not only dominating but they should be in full control of their spouses as these are some of their unique ways of proving their masculinity.

Anuja Shah, an online senior family therapist at ePsyClinic explains, “I once got a very disturbing as well shocking case where the woman was so traumatized that the child born out of wedlock reminded her of the brutality of her bedroom.” She adds, “Once married, men reckon that any sort of sex he indulges in with the wife is normal.

Marital rape laws in other countries

Marital Rape is considered as a criminal offence in about 106 countries and is documented as a violation of Human Rights. Among the 106 countries, 32 consider it as a special criminal offence, and the remaining 74 include it in the general rape provisions. United Nations has repeatedly asked our country to make a law against marital rape but our government is not considering it as unworthy of repealing or even amending.

Australia, under the footprint of the second wave of feminism in the seventies, was the first common law country to pass reforms in 1976 that made rape in marriage a criminal offence. In the two decades before that, several Scandinavian countries and countries in the Communist bloc passed laws criminalizing spousal rape including Sweden, Norway, Denmark, and the former Soviet Union and Czechoslovakia. Poland in 1932 was the first to have a law explicitly making it a criminal offence.

At least some countries in this world are talking sense here. According to the UN Women’s 2011 report, out of 179 countries for which data was available, 52 had amended their legislation to explicitly make marital rape a criminal offence. The remaining countries include those that make an exception for marital rape in their rape laws, as well as those where no such exception exists and where, therefore, the spouse can be prosecuted under the general rape laws.

Conclusion

Society changes with time and we must also change our laws with time. In Ancient India of our country, Sati Pratha was a custom that was rigorously followed by our country but it was halted completely in the year 1861 by Queen Victoria. Now the time has come that we should criminalise this menace called Marital Rape.

There are some suggestions which our government should consider:

We should move towards criminalization of marital rape by dismantling Rape as an exception to marriage.
The spouse against whom the act of marital rape has been committed will be entitled to maintenance.
Marital rape should be considered as one of the grounds for granting divorce as well as custody of children.
Amending procedural and evidence laws to incorporate such norms as maintenance and other such rules marital rape.
One of the important questions arises here is that how can one prove that a woman has been raped by her husband as in other rape case sperm or DNA samples can prove that rape was conducted by the rapist. So, in these cases, circumstantial evidence and circumstances should be taken into consideration as marital rape cannot be the lone incidence. It must be accompanied by sexual assault, physical assault. If there was a history of domestic violence, chances of marital rape cannot be ignored. Marital rapist should not be easily spared and granting of divorce should not be the only legal remedy available to victims of marital rape.

Our country cannot headway until and unless women are not prevented from social oppression even in the hands of their husbands and it is the right time when a wife should be seen as a different entity from her husband. The wife has the sole right on her body even after the consummation of marriage and rape is a rape irrespective of who the offender is.

References

Indian Penal Code, 1860
http://indianexpress.com/article/india/meet-anam-marital-rape-survivor-criminal-offence-delhi-high-court-4847094/
Livemint.com
reported in 1994 AIR 133, 1994 SCC (1) 460
(2009) 9 SCC 1

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Legal framework governing spamming on the internet

Guest Post

March 21, 2015

This article is written by Deeksha Malik, a student of NLIU, Bhopal

“Spam, spam, spam, spam…” this is how the comedy group Monty Python had used the word in their sketch. Some years later, this repetitive and unwanted presence of the word inspired the coining of the term “spamming” as we know it. The Oxford Advanced Learner’s Dictionary defines spamming as the practice of sending mail, especially advertising email, through the Internet to a large number of people who have not asked for it.[1] Speaking generally, spam, also known as Unsolicited Bulk Email (“UBE”) or Unsolicited Commercial Email (“UCE”) refers to electronic mail advertisements that are addressed to a recipient with whom the initiator has no existing business or personal relationship and they are not sent at the request of or with the express consent of the recipient.[2]

The Pros and the Cons

The cost-effectiveness and speed that an email entails serves as a major incentive for advertisers to resort to spamming, creating a wide consumer base in the process. Indeed, more than a third of email users have made a purchase in response to some kind of email message.[3] On the other hand, it poses several dangers to the public at large. Not only does it increase the chance of a legitimate email getting lost or overlooked, but it also imposes additional expenses on the consumer by shifting the burden of spending on advertising on to him while at the same time leading to more storage space and bandwidth utilization. Further, most of these unsolicited emails carry false advertisements, thereby leading to fraud and deception. The Federal Trade Commission in 2003 reported that about two-thirds of the spam analyzed contained likely false claims in the “From:” line, “Subject:” line, or message text. Moreover, 84.5 percent of the spam analyzed were deceptive on their face or advertised an illegitimate product or service.[4] Besides, in transmitting such mails, public morality is often put at stake. The contents of most of the spam messages are largely inappropriate for children as they often provide hyperlinks to pornographic websites, pornographic pictures, and adult entertainment products and services.[5] The threat has increased manifold with many spammers delivering viruses and malicious programs that are likely to harm personal data. Thus, spam, which presently accounts for approximately 85% of the total global email traffic[6], does not connote mere annoyance, but involves real threat of integrity of hardware and networks that make up the Internet.[7]

Anti-spam Legislation in Other Countries

Over the years, many countries have recognised the need for an anti-spam legislation to curb the menace. In USA, the relevant legislation is the Controlling the Assault of Non-Solicited Pornography and Marketing Act, 2003, popularly known as the CAN-SPAM Act. The Act, which came into effect on January 1, 2004, does not prohibit spamming per se, but rather allows email marketers to send UCE until the consumer ‘opts out’ from receiving future messages. For this purpose, it requires email marketers to disclose their identity in the email and include an opt-out option for the consumers. In case their message contains sexual material, they are required to provide adequate warning labels. The law makes it a crime to send fraudulent email using standard spam tactics as false headers and misleading subject lines and provides for civil penalties up to $11.000 per violation.[8] The Federal Trade Commission, which is governed by a separate Federal Trade Commission Act of 1914, is the enforcing authority under the CAN-SPAM Act. In contrast to this, both the EU and Australia have adopted an ‘opt-in’ approach, whereby the consent of the consumer is taken before any UCE is sent to them, thus making the email a solicited advertisement.[9] However, while the EC Regulations require the consent to be an explicit one, the Australian legislation permits both express and implied consent. In the latter case, the consent may be inferred from the conduct and the business or any other relationship between the sender and the recipient.[10] The Australian Communications and Media Authority (“ACMA”) is entrusted with the responsibility of enforcing the provisions of the Australian Act. The provisions require a person to give an undertaking in writing to ACMA with respect to his use of commercial electronic messages. If any breach is committed thereafter, ACMA has power to apply to the Federal Court. Upon satisfaction of the breach, the Federal Court may either pass an order directing the person concerned to comply with the order, or require him to pay compensation.[11]

Besides the legislations brought about at the national level, there have been international efforts dedicated to the purpose. For instance, the UN World Summit on the Information Society at its Tunis meeting in 2005, called on all stakeholders to adopt a multi-pronged strategy to counter spam which would include, inter alia, consumer and business education, legislative measures, efforts on the part of law-enforcement authorities, best practices and international cooperation.[12] Another instance is the OECD Anti-Spam Toolkit, put forth in 2004, that produced a toolkit for its 34 members that includes a package of recommended policies and measures addressing regulatory approaches, enforcement co-operation, industry driven activities, technical solutions, education and awareness initiatives, spam measures, and international co-operation and exchange.[13]

Position in India

It is unfortunate that legislation has not kept pace with advancement of technology in India. The much-touted Information Technology Act, 2000 does not deal with the issue of spamming, even as India stands second after US where this problem is rampant.[14] The only provision in the Act which deals with regulation of email content is Section 66A, which was introduced by the Information Technology (Amendment) Act, 2008. The section provides that any person who sends by means of a computer resource, or a communication device, any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to 3 years and with fine. A bare reading of the provision shows its inadequacy in dealing with the issue at hand. Firstly, it regulates only the content of the email message, not the very act of sending such mails. This is unlike the position in the EU and Australia, where the sending of UCEs is prohibited. Secondly, the section uses the expression “for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages”. Very few spam emails are sent with the purpose of causing annoyance or inconvenience; rather most of them are delivered for the purpose of marketing or defrauding people of money[15] and, therefore, the section does not the address the problem in its entirety. Thirdly, it is the originator who is held responsible under the provision for sending such emails. However, in most situations, it is very difficult to track the originator, especially when such spamming is done through fake email ids. Also, the provision does not take into its ambit all the intermediaries and beneficiaries involved in the delivery of spam messages, which again makes the provision incapable of handling the issue.

It is important to note that regulation of UCEs brings with it the issue of restriction on the fundamental right to free speech. Thus, a total prohibition might be construed as an absolute and prima facie unreasonable restriction, which would be contrary to the right contemplated under Article 19(1)(a) of the Constitution of India.[16] In such a scenario, bringing a legislation or a provision that allows the recipient of spam email to either ‘opt-in’ or ‘opt-out’ of receiving such mail would address the issue. Any commercial speech that is deceptive, unfair, misleading and untruthful would be hit by Art 19(2)[17] and therefore such restriction would be a reasonable one. Also, this would protect personal data as also an individual’s right to privacy, which is part of the right to life as contemplated under Article 21 of the Constitution[18], insofar as it would prevent an unauthorised obtainment and use of an email address of a person. In this light, a dedicated anti-spam legislation or an amendment in the existing law is much needed.

[1] Oxford Advanced Learner’s Dictionary (Oxford University Press, 2000).

[2] David E. Sorkin, Technical and Legal Approaches to Unsolicited Electronic Mail, 35 U.S.F. L. REV. 325, 327 (2001).

[3] Neil Swidey, Spam Busters, BOSTON GLOBE, Oct. 5, 2003 (Magazine), at 4.

[4] National Do Not Email Registry: A Report to Congress, FEDERAL TRADE COMMISSION (March 12, 2015, 5:00 PM).

[5] Xingan Li, E-marketing, Unsolicited Commercial E-mail, and Legal Solutions, WEBOLOGY (March 16, 2015, 10 PM), http://www.webology.org/2006/v3n1/a23.html.

[6] Spam Overview, CISCO (March 17, 2015, 6:00 PM), https://www.senderbase.org/static/spam/.

[7] Bill Gates, Why I Hate Spam, WALL ST. J. (June 23, 2003) at A14.

[8] Evangelos Moustakas, C. Ranganathan and Penny Duquenoy, Combating Spam through Legislation: A Comparative Analysis of US and European Approaches, https://www.academia.edu/2969040/Combating_Spam_through_Legislation_A_Comparative_Analysis_of_US_and_European_Approaches.

[9] Marilyn Geewax, Senate Oks bill to curb junk e-mail Measure likely to take effect next month, ATL. J. CONST., (Nov. 26, 2003).

[10] See Schedule 2, Spam Act, 2003 (Australia).

[11] http://thegiga.in/LinkClick.aspx?fileticket=wMpHW5Ur8JA%3D&tabid=589.

[12] Combating Spam: Policy, Technical and Industry Approaches, INTERNET SOCIETY (March 6, 2015, 12 PM), http://www.internetsociety.org/sites/default/files/Combating-Spam.pdf.

[13] Report Of The OECD Task Force On Spam: Anti-Spam Toolkit Of Recommended

Policies And Measures, ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT (March 8, 2015, 3 PM), http://www.oecd.org/internet/consumer/36494147.pdf.

[14] India set to become top spamming nation, TIMES OF INDIA (March 13, 2015, 04:30 PM), http://timesofindia.indiatimes.com/tech/tech-news/India-set-to-become-top-spamming-nation/articleshow/8251219.cms.

[15] Suresh Ramasubramanian and Pranesh Prakash, Spam and Internet Abuse in India (March 15, 2015, 03:00 PM), http://cybersummit.info/sites/cybersummit.info/files/srs-ewi-paper-final.pdf.

[16] See Virendra v. State of Punjab, AIR 1957 SC 896 (899).

[17] Tata Press Limited v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139: AIR 1995 SC 2438.

[18] Kharak Singh v. State of UP, (1964) 1 SCR 332.

What happens when an Indian law student interns with a Russian Bar Council

Guest Post

March 13, 2015

This experience has been shared by Shrishma Dandekar, a student of GNLU, Gandhinagar.

When I first saw the AIESEC internship opportunity on Facebook, what captivated me were pictures of the Caribbean and I applied without any real optimism of getting selected. My interest piqued when my local manager approached me with some legal internships and I immediately applied for an internship with the Bar Council in Chelyabinsk, one of the largest cities of Russia. The main consideration for selecting this particular internship was that it offered me the strongest legal exposure out of all. Apart from this, Russia is culturally very assorted and yet, uncharted by regular people of many countries.

The fact that it was my first trip abroad, which comprised of my first flight experience, made the journey and the stay a bit more challenging. The first impression about Russia is that it is a very isolated country in terms of its socio-cultural outlook. English is a very abstruse language even though it is taught in schools. It is very difficult to get around since all the shops, malls, buses, boards, etc. are in Russian and the general public doesn’t have the basic grasp of English. The astonishing reality is that the people don’t have the slightest desire to learn English even though it is regarded as a necessity in this age of globalization. The average student is also unaware of the European economy crisis, the Middle East conflicts, American sitcoms and the events around the globe. There were two interns selected from India for this legal internship including me. Our main job was to hold lectures twice a week, for students of South Urals State University, about the Indian Criminal law and certain aspects of the Indian Constitution. Apart from this, we learned about the Russian legal system and the working of courts. We also worked part time at an English tutorial as guest lecturers.

Our lectures on law were attended by 15-20 students which are the more than the average number of students in a traditional class. The law degree is a four-year course in Russia and we had the chance to interact with students from every year. It took 2-3 lectures to get the students interested in the classes. The biggest setback was the language as we had to use an interpreter to get even the basic communication across. Soon, we did realize the benefit of having smaller classes, unlike the full classes in India. As there is a lot of potential for one-to one interaction, in next to no time we had a cosy, inquisitive class with equally curious teachers. We were always chaperoned by Leonty Marshava, who was a member of Chelyabinsk Bar council and we learnt a lot from him in five weeks. The best lessons were on the criminal laws of Russia. Though Russia has a substantive and procedural code for criminal law like IPC and CrPC in India, there are very fundamental differences in the same. In Russia, the office of the Public prosecutor is decorated and it is almost a parallel profession to an advocate. Similarly, the general public isn’t allowed to attend the criminal proceedings in the district courts. However, as we were associated with the Bar Council, upon special permission, we were allowed to attend a trial for parole of a person accused of murder along with our interpreter.

The functioning of courts in Russia was seen to be starkly different from the Indian courts. For one, there was a lack of the noisy audience. Upon entering the premises you are required to sit on a bench and check in a register. Then you have to go through a security check before going to the next level. This is where the proceedings take place. The accused is supposed to sit on a bench which is inside a small prison like structure. This is in contrast to India, where the principle of “Innocent until proven guilty” is followed. Seeing an undertrial behind bars almost seems like a violation of human rights. The prosecution and defence lawyer are seated side by side and present their arguments one after other. As far as questioning of the accused went, the job was done by the judge himself. Astonishingly, he not only interacted with the accused and asked his motive for killing the person but also shared a smile or two with him! This was rather an astonishing sight since in all our previous internships in courts in India, we have seen judges deal with matters impersonally and in a detached sense. During our one to one interaction with the judge, he clarified his attitude saying they try to look at all accused as humans but ultimately, they have to follow the book, We chalked this up to the fact that these judges are not as over-worked as judges in India are, which allows them to deal with each case with almost a serene patience. This was the only experience we had of seeing the judiciary in motion since it is a privilege in Russia. Apart from this, the bar council made sure we absorbed as much as we could about the legal system in Russia and its culture. After each of our lectures, we would be given a 40 minute presentation about the corresponding law prevailing in Russia. The important part of this internship was that it required us to do a thorough research on our own subjects since we had to make people understand the provisions right from their initiations to their current status. I believe we achieved a deeper insight regarding the laws of India, specially the criminal laws, during this period of six weeks.

The maximum impact on us was however, surviving practically alone in a country which is as different as it can be from our homeland. From language, food, transport to social graces, recreation methods, weather and skin colour, it was all in a stark contrast. We were used to being stared at on the streets and get requests from strangers for pictures in Russian. We quickly learnt how to use the public transport and communicate in basic Russian. However, this was a lesson learnt after getting lost a couple of times in the freezing weather without being able to explain where to go. Figuring out things in a country which widens eyes at your skin colour and where people don’t speak your language cloths you with tempered strength. The difficulties we faced acquainted us with the basic impulses of life. When something as mundane as weather poses one of the toughest challenges you have faced, you know you will grow when you come out at the other end. This internship taught us how to convey a subject in its entirety in a crisp manner, to make friends who are not your age and don’t have the same first language as yours and how everyone is intrinsically similar regardless of the country you come from. But most importantly, it taught us that clichés are true; if you believe in yourself, there is absolutely nothing that can stop you from charting your path

Are bloggers safe in India?

Ramanuj

March 11, 2015

Bloggers are the most outrageous, free thinking and creative of the entire media space. What the mainstream media do not dare to utter, the bloggers speak of freely. Bloggers are now pulling in the numbers too – a blogger with a million visitors a month is no more an unusual thing.

As the stature and importance of bloggers rise, their safety and freedom is increasingly coming under threat. Devoid of institutional support, they are easy preys, as we saw in the case of blogger Abhijit Roy. Are bloggers under unprecedented threat? Will bloggers manage to stay independent and free from fear of violence, and continue to write about things that they want to write?

I started blogging in 2008. I first realized that blogging can piss off people when I wrote a post about not-so-good recruitment of a certain law school. People called me up and abused me. I got tons of abusive mails on social media as people alleged that I was trying to make my blog popular by hurting careers and images of other people. I was taken aback – does no one expect that the truth will be written about?

However, facing the wrath of political propagandists or religious fanatics online is quite another thing. Note that this happens more on social media – such as Facebook and Twitter. It is as if people do not have any restraint when it comes to online debates, and they come online prepared to demolish any opposition with abuses and personal attacks. They do not care about reason or discourse. For them, the only way to win the argument is to steamroll the person expressing a deviant opinion by shaming, abusing and bullying.

I once wrote about how a verse in the Quran suggests that Muslims should ambush non-muslims, and kill or enslave them. This is a verse that ISIS now uses to justify what they do to the Kurds or Yazidi prisoners. I was deluged with abuses from Muslim fundamentalists, and even a few Hindu fundamentalists joined them because they saw an atheist as a common enemy. I was threatened with physical harm and death publicly on my wall.

Still, it seemed so far that most of these online fundamentalists and bullies are keyboard jockeys, and don’t really pack any punch outside the computer screens. However, as militant fringe groups have been taking to social media like zombies to Halloween, things are changing. There are highly organized groups which are capable of orchestrating real life attacks on bloggers who they see as crossing the line. It has started happening even during elections that very active political bloggers who are not backed by big parties would get threatening calls. Are attacks possible? I don’t think that those days are far away.

The free thinking bloggers and social media activists now carry a lot of weight and make a huge difference as far as public opinion is concerned. We could see this from how the AAP benefited from the support of such bloggers and social media activists. And this is a big threat to a lot of people who want to take over the online space with their propaganda. They are ready to go to any extent when their intentions are thwarted or exposed by independent bloggers.

So yes, bloggers are at risk. There is a price for freedom of speech and expression, and as the government is not particularly keen on protecting dissent or free speech, the price may be very high for individuals at times. Sometimes, they are in fact threatened by the government itself – which can throw the weight of the state against an individual blogger if powers that be are displeased.

It is a tough world for bloggers in India.

From Mines to Markets: How Coal is allocated in India

Guest Post

March 10, 2015

This article about coal mining and it’s regulation in India is written by Vishakha Gupta, a student of NUJS, Kolkata.

Akin to the common law principle that prohibits us from owning unlimited expanse of air above our land, we are also prohibited from de facto owning the minerals stored below our land. The Government by virtue of the doctrine of eminent domain owns all natural resources found in air, water or land. Thus, in case a person discovers valuable minerals below his property, the land belongs to the government. This is expressly laid down in The Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the ‘1957 Act’; see the full Act here). By this Act, the Central Government overtook the responsibility of development of mines and mineral operations in pursuance of Entry 54 in List I of the Seventh Schedule of the Constitution. The First Schedule of the Act lists Coal and Lignite as Hydro Carbons/Energy Minerals. Section 4 of this Act prescribes license or lease for all prospecting or mining operations. Further provisions of the Act lay down the conditions on which a lease or license can be granted. By the Coal Mines (Taking over of Management) Act, 1973 [see the full Act here], the Central Government brought management of coal mines under its purview. Soon after, Coal Mines Nationalisation Act, 1973 [hereinafter referred to as the ‘CMN Act’; see the full Act here] was enacted “to provide for the acquisition and transfer of the right, title and interest of the owners in respect of coal mines specified in the Schedule with a view to reorganising and reconstructing any such coal mines so as to ensure the rational, coordinated and scientific development and utilisation of coal resources consistent with the growing requirements of the country, in order that the ownership and control of such resources are vested in the State and thereby so distributed as best to subserve the common good, and for matters connected therewith or incidental thereto.”

How Government acquires the coal bearing land?

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill, 2013 (which replaces the 1894 Land Acquisition Act), excludes acquisition of coal bearing areas from its purview. [Section 105 read with the IV Schedule; see the full Act here] The acquisition of such areas by the Government is governed by The Coal Bearing Areas (Acquisition and Development) Act, 1957 [See the full Act here]. The following procedure is pursued for acquiring a coal bearing land:

The Central Government gives a preliminary notice of its intention by a notification in the Official Gazette, to prospect for coal in any area where coal is likely to be obtained. The notification empowers the Government to enter upon and survey any land in the locality, dig or bore into the sub- soil and do all other acts necessary to prospect for coal in the land. [Section 4]
In case of any damage done to the land in pursuance of the above activities, appropriate compensation shall be paid. In case of any dispute with respect to the amount of compensation, the decision of the Central Government shall be final. [Section 6]
After inspection, if the Central Government is satisfied that coal is obtainable in the whole or any part of the land notified, it may, within a period of two years from the date of the said notification or within such further period not exceeding one year in the aggregate as the Central Government may specify in this behalf, by notification in the Official Gazette, give notice of its intention to acquire the whole or any part of the land or of any rights in or over such land, as the case may be.” [Section 7]
A person interested in the aforementioned land may object to the acquisition within thirty days of the notification. Wanting to undertake mining operations on the land by oneself is not a valid objection. Objection must be made in writing to the competent authority, who after necessary enquiry and hearings will make a report to the Central Government. [Section 8] The Government can exclude the right to raise objection in case of an emergency. [Section 9A]
After taking into consideration the report, if any, the Central Government shall make a declaration with respect to acquisition of the land. Such declaration must be made within three years of the notification, and shall be published in the Official Gazette.
On publication in the Official Gazette, the land or the rights in or over the land shall vest absolutely in the Central Government, devoid of all encumbrances. [Section 10] The Central Government thereafter can demand possession of such land by a notice in writing. [Section 12]

Who can engage in coal mining?

The CMN Act provides that where the rights of an owner under any mining lease are granted to the Central Government in relation to a coal mine, by a State Government or any other person, under Section 3, the “Central Government shall, on and from the date of such vesting, be deemed to have become the lessee of the State Government or such other person, as the case may be, in relation to such coal mine as if a mining lease in relation to such coal mine had been granted to the Central Government.”

The CMN Act was amended in 1976, and thereafter no person other than

Central Government or a Government company or a corporation owned, managed or controlled by the Central Government or
a person to whom a sub-lease has been granted by any such Government, company or corporation or
a company engaged in the production of iron and steel,

can carry on coal mining operation, in India in any form. The CMN Act even after 1976 amendment allowed only public sector companies to mine coal. But realizing a resource constraint as the few public sector companies could not cope up with the numerous projects, the Government, by 1993 Amendment Act permitted private players to enter the market. Section 3 of the CMN Act was amended to allow companies engaged in the production of iron and steel, generation of power, washing of coal obtained from a mine, or such other end use as the Central Government may, by notification, specify, to get a lease from the government for mining coal for captive purposes. This position has been rendered redundant by the Coal Mines (Special Provisions) Second Ordinance promulgated on December 26, 2014. The Ordinance brings to force the provisions of the pending Coal Mines (Special Provisions) Bill, and enforces the Supreme Court directives under Manohar Lal Sharma v the Principal Secretary [(2014) 9 SCC 516; see the full judgment here]. The Ordinance allows private companies to engage in open sale of coal in the market. Three categories of coal mines have been identified in the Ordinance. The Schedule I mines comprise all the 204 coal mines cancelled by the Supreme Court in August 2014, any land acquired by the prior allottees in or around the coal mines, and mine infrastructure. Schedule II are the 42 Schedule I mines that are currently under production or about to start production. Schedule III mines are the 32 Schedule I mines that have been earmarked for a specified end-use. Mines under Schedule II and III are allocated via public auction. Schedule I mines may be allocated by way of either public auction or government allotment. Only government companies are eligible to apply for government allotment. A prior allottee is disqualified form allocation process if he has failed to pay the levy imposed by the Supreme Court in Manohar Lal Sharma v the Principal Secretary. A prior allottee will also not be eligible for compensation for land and mine infrastructure if he has failed to pay the levy. The entire process of allocation and allotment will be regulated by a ‘nominated authority’ appointed by the central government. Once the allotment is completed, following rights and licenses will vest in the allottee:

“(i) all the rights, title and interest of the prior allottee, in Schedule I coal mines,

(ii) a mining lease that will be granted by the state government, and

(iii) any statutory licences, approval or consent required to undertake coal mining operations in Schedule I coal mines, if already issued to the prior allottee.”

Currently the Central Government allocates coal blocks as per the rules laid down in the 1957 Act and one has to apply to the State Government for lease or license, once the allocation is done. Though the 1957 Act confers a statutory obligation upon the State Governments to recommend (or not to recommend) to the Central Government on grant of prospecting licence or mining lease for the coal mines, but once the letter allocating a coal block is issued by the Central Government, the statutory role of the State Government is reduced to completion of procedural formalities only.

Can Central Government allocate coal mines?

Supreme Court in Manohar Lal Sharma v the Principal Secretary [(2014) 9 SCC 516; see the full judgment here] asserted that the power of coal block allocation is not traceable either to the 1957 or the 1973 Act. In pursuance to Article 73 of the Constitution, the executive can extend its power to the areas of legislative competence of the Parliament, and fill the gaps in the statutes, but not to derogation of any law. In 2010, Section 11A was inserted in the 1957 Act, providing for the manner and method of allocation of coal blocks. It prescribed competitive bidding for deciding the allottees. The allocation does not authorize the allottee to mine the coal, but it empowers him/it to apply for a license or lease to the State Government.

The valid/ constitutional method of allocation of coal mines

Article 39(b) of the Constitution provides that natural resources must be allocated in a manner that “best subserves common good”. Before 2010, there was no prescribed method for the same The Supreme Court in a number of cases had looked into the appropriate method by which the Central Government must allot coal blocks, and there has been a cleavage in the opinions on the same. Justice Bhagwati in Kasturi Lal Lakshmi Reddy and Ors. v. State of J and K and Anr [1980 SCR (3)1338; see the full judgment here]., said that the Government has no mandate to advertise allocation of resources. In contrast, the Court in Sachidanand Pandey and Anr. v. State of West Bengal and Ors. [(1987) 2 SCC 295; see the full judgment here] and Haji T.M. Hassan Rawther v. Kerala Financial Corporation [(1988) 1 SCC 166; see the full judgment here] expressed that public auction is the ordinary rule for allocation of natural resources. The latter view has been affirmed by the apex Court in subsequent judgments as well. However, the Court allowed for deviations from this rule in case the reasons for such deviation are rational and are not indicative of discrimination, bias, jobbery or nepotism. Deviations are allowed for promoting domestic development, public good, or fulfillment of a public policy.

In Manohar Lal case, the Supreme Court asserted that there is no one universal efficacious method to allocate. Moreover, mandating a particular method for allocation of all sorts of natural resources defies the economic logic as varied resources have to be treated differently. Therefore, the Courts cannot hold one method to be constitutional and judge other methods against it. Instead, when a particular method is questioned,

“the courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the Court would not hesitate in striking it down.” [Manohar Lal v Principal Secretary]

This was reiterated in Natural Resources Allocation, In re, Special Reference No. 1 of 2012 [(2012) 10 SCC 1; see the full judgment here]

“In our opinion, auction despite being a more preferable method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement or limitation for alienation of all natural resources and therefore, every method other than auction cannot be struck down as ultra vires the constitutional mandate.”

In 2010, Section 11A was inserted in the 1957 Act. This decreed the Central Government to allocate only via competitive bidding. However, in Manohar Lal case, the disputed allocations were of the period 1993-2010. The Court scrutinized the procedure in detail and ruled that the allocation procedure was arbitrary and thereby illegal. Consequently, 42 out of 46 coal block allotments were quashed.

Applying for a lease or license of coal mines

As has been stated above, the allocation of a coal block by the Central Government confers the power on the allottee to apply for a lease or license to the State Government. The allottee can apply for any kind of lease or license as provided under the 1957 Act. For instance, a reconnaissance permit is granted for reconnaissance operations, which are “operations undertaken for preliminary prospecting of a mineral through regional, aerial, geophysical or geochemical surveys and geological mapping, but does not include pitting, trenching, drilling (except drilling of bore holes on a grid specified from time to time by the Central Government) or sub-surface excavation;” [Section 3 (ha)] A prospecting license is granted for “operations undertaken for the purpose of exploring, locating or proving mineral deposit”. [Section 3(g) and 3(h)] A mining lease is conferred for “operations undertaken for the purpose of winning any mineral” [Sections 3(c) and 3(d)] The Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015 [see the full Ordinance here], effective immediately inserted another sort of license under Section 3 of the 1957 Act. ‘Prospecting license-cum-mining lease’ is a “two stage-concession for the purpose of undertaking prospecting operations, followed by mining operations.” [Section 3 (ga)]

Duration of lease or license of coal mines

As per Section 7 of the 1957 Act, a reconnaissance permit or prospecting license can be granted for a maximum period of three years.

With respect to a prospecting license, Section 7 (2) provides:

“A prospecting licence shall, if the State Government is satisfied that a longer period is required to enable the licensee to complete prospecting operations be renewed for such period or periods as that Government may specify:

Provided that the total period for which a prospecting licence is granted does not exceed five years;

Provided further that no prospecting licence granted in respect of a mineral included in Part A and Part B to the First Schedule shall be renewed except with the previous approval of the Central Government.” [‘Coal and lignite’ are listed in PartA]

Section 8 of the 1957 Act provides that a mining lease can be granted for a maximum period of thirty years, and a minimum period of twenty years. A mining lease may be renewed for a period not exceeding twenty years with prior approval of the Central Government. This provision was preserved by the 2015 Ordinance.

Procedure to acquire a lease or license of a coal mine

In order to acquire a reconnaissance permit, prospecting license or a mining lease, an allottee needs to apply to the State Government for the same in the prescribed form, with the prescribed fee. The State Government, on receiving the application will notify the applicant of the receipt and thereafter grant or refuse the lease/ license as per rules enacted by the Central Government under the 1957 Act with respect to the same. The 2015 Ordinance allowed the State Government to grant a prospecting license or mining lease with the prior approval of the Central Government. [Section 17A of the 1957 Act]

Commercial use of coal mining by private parties and selling coal in open market

Before the 2014 Ordinance, the private companies were allowed to engage in coal mining only for captive purposes. This means that the extracting companies could have used the coal only for their own use. They were not permitted to sell the fuel directly in the market. The companies had to use whatever quality of coal they mine, which often resulted in great wastage in case the coal is of a higher quality than required by the company. This position has now been modified by the 2014 Ordinance. Private companies are now allowed to sell coal in open market.

Coal Mining is known to cause widespread disturbance among the inhabitants of the coal mining areas. Many are dislocated or suffer health problems due to mining activities. In order to mitigate such aftereffects, the 2015 Ordinance envisages setting up of District Mineral Foundation by every State Government. The District Mineral Foundation will be a non-profit organization that would work towards welfare of those affected by mining related operations. The licensees and lease holders are required to pay a percentage of royalty not exceeding more than one-third of the royalty prescribed by the Central Government. The Ordinance also conceives a National Mineral Exploration Trust that will use the funds for regional and detailed exploration, as prescribed by the Central Government. The licensees and lease holders have to pay two percent of the royalty to the Trust.

Cyber Pornography Law in India- The Grey law decoded

Ramanuj

March 5, 2015

This article is by Advocate Puneet Bhasin, Cyber Law Expert, Cyberjure Legal Consulting, on Cyber Pornography Law in India.

[email protected]

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Everything you want to know about the National Green Tribunal

Guest Post

March 3, 2015

This article is written by Deeksha Malik, a student of National Law Institute University, Bhopal

INTRODUCTION

Way back in the year 1986, when India was reeling under the aftermath of the Oleum gas leak and the Bhopal gas tragedy, the Supreme Court in the landmark case of M C Mehta v. Union of India[1] opined that since environmental cases involve assessment of scientific data it would be desirable to have the setting up of environmental courts on a regional basis with a professional judge and two experts keeping in view the expertise required for such adjudication. Again in A.P. Pollution Control Board vs. M.V. Nayudu[2], the Supreme Court, after a detailed analysis of the position in other countries, emphasised the need for establishing environmental courts, which would benefit from the advice of environmental experts as a part of the judicial process. These observations were taken care of by the Law Commission of India in its 186^th Report on ‘Proposal to constitute Environment Courts’, wherein the Commission expressly recommended the constitution of environmental courts by the Union Government in each state, which would be “manned only by the persons having judicial or legal experience and assisted by persons having scientific qualification and experience in the field of environment.”[3] These events culminated in the enactment of the National Green Tribunal Act, 2010 (hereinafter “the Act”). The preamble to the Act aptly reflects the object of the Act, which is to “provide for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.” This is to give effect to the International obligations undertaken by India at International Conferences to which it has been a Party and to implement the Supreme Court’s pronouncement that the right to healthy environment is a part of the right to life as guaranteed under Article 21 of the Indian Constitution.

SALIENT FEATURES OF THE ACT

Following the enactment, the principal bench of the National Green Tribunal (NGT) has been established in New Delhi, with regional benches in Pune (Western Zone Bench), Bhopal (Central Zone Bench), Chennai (Southern Bench) and Kolkata (Eastern Bench). Each bench has a specified geographical jurisdiction covering several States in a region.[4] Section 4 of the Act provides that the NGT shall consist of a full-time Chairperson who shall be accompanied by not less than ten, but subject to a maximum of twenty, full-time judicial and expert members. Section 5 elaborately lays down the qualifications of such judicial and expert members. As regards their appointment, Section 6 provides that the Chairperson shall be appointed by the Central Government in consultation with the Chief Justice of India, while the other members shall be appointed on the basis of the recommendations of a Selection Committee in such manner as may be prescribed.

The National Green Tribunal has been vested with wide jurisdiction, and it can hear matters in the form of original, appellate, review and miscellaneous petitions. Section 14 confers on the Tribunal jurisdiction in respect of all civil cases where a substantial question relating to environment is involved and such question arises out of the implementation of the enactments specified in Schedule I to the Act.[5] Civil cases within its ambit include all legal proceedings except criminal cases, which are governed by the provisions of the Criminal Procedure Code, 1973.[6] The term “substantial” has been explained under Section 2(m) to include an instance where there is a direct violation of a specific environmental obligation by a person whereby the community at large is affected or likely to be affected by environmental consequences, or the gravity of damage to the environment or property is substantial, or the damage to public health is broadly measurable. It is significant to note here that, in spite of such statutory definition, the term remains subjective. As such, no tangible method has been provided under the Act by which to measure the gravity of damage to environment and public health. Furthermore, it is ironical that the Act denies to an individual the right to question an environmental consequence that affects him or her unless it also affects the community at large or public health, when its preamble clearly states that the Act is intended to give meaning to the right to healthy environment, which is an essential ingredient of the right to life of an individual under Article 21.[7] The Tribunal is vested with appellate jurisdiction under Section 16 against orders or decisions under the enactments specified in Schedule I. Such appeal has to be filed before the Tribunal within 30 days from the date on which the order, decision or determination was communicated to an aggrieved party.

Recognising the degree of complexity involved in environmental matters, the Act provides that the Tribunal shall not be bound to follow the procedure laid down in the Civil Procedure Code, 1908, but shall be guided by the principles of natural justice.[8] The Tribunal is also free to devise its own procedures and is, therefore, not bound to comply with the rules of evidence as contemplated under the Indian Evidence Act, 1872.[9] The Tribunal, however, has the power of a civil court in respect of summoning, enforcing attendance, receiving evidence on affidavits, examining on oath, and granting ex parte and interim orders and injunctions.[10]

The Act empowers the Tribunal to provide, by way of an order, relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule-I to the Act, including accident occurring while handling any hazardous substance. It may also provide for the restitution of the property damaged and the restitution of the environment for such areas as the Tribunal may think fit.[11] An application for grant of any compensation, relief or restitution of property or environment has to be made within five years from the date on which the cause for such compensation or appeal first arose. It is argued, however, that such limited time-frame defeats the very purpose for which the Act has been enacted. Any legislation designed for dealing with environmental matters should take note of the fact that the impact of most of the environmental hazards is slow and continuous and, therefore, a time period as short as the one stipulated in the Act is insufficient to ascertain such impact.

If any person is aggrieved by any award, decision or order of the Tribunal, he or she may file an application to the Supreme Court within 90 days from the date of communication of such award, decision or order to him, on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908.[12]

The most salient feature of the Act is that the Green Tribunal is called upon to follow the internationally recognised and nationally applied principles of sustainable development, the precautionary principle and the polluter-pays principle when passing any order, decision or award.[13] The precautionary principle, as elucidated by the Supreme Court, enjoins upon the State to anticipate, prevent and attack the causes of environmental degradation; lack of scientific certainty should not be used as an excuse for postponing measures to prevent environmental degradation in case of threats of serious and irreversible damage. In all such cases, the onus of proof is upon the polluter to show that his action is environmentally benign.[14] Applying this principle, the Tribunal directed a project proponent to carry out cumulative impact assessment studies with respect to a proposed coal-based power plant, and stayed its environmental clearance when it failed to do so.[15] On the other hand, the polluter-pays principle requires the polluter to bear the costs of prevention, control and reduction of pollution, and accordingly, the Tribunal held the tannery industries located on the banks of the river Ganga liable to contribute for the establishment of a Common Effluent Treatment Plant (CTEP) and its maintenance.[16]

THE WAY FORWARD

Over the years, the National Green Tribunal has emerged as a powerful forum to address the critical environmental issues that were once subjected to a long-drawn litigation in courts. The Tribunal has proved its worth each time by upholding the principle of conservation. Take the Goa Foundation case[17], where two NGOs sought directions requiring the state government to take steps for the conservation and protection of the Western Ghats as directed by the Western Ghats Ecology Expert Panel (WGEEP). Buying their contention, the Tribunal directed the Ministry of Environment and Forests to file its reply on the report within 4 weeks, holding that the executive authorities concerned with protection and conservation of environment and forests are under an obligation to exercise their power to protect these natural assets in a prudent manner. However, the Tribunal has often drawn flak from the executive for staying the environmental clearance for many projects, thereby stalling economic development. It is submitted that economic development must reconcile with social equity and environmental protection in order to ensure compliance with the principle of sustainable development.[18] The Tribunal has tried to strike a proper balance between the two, which could be illustrated by its order of grant of environmental clearance for a coal-based power plant on the ground that the project, when operated within an eco-legal framework may contribute significantly to sustainable development in the area under consideration.[19] Indeed, the enactment of the legislation was a step in the right direction, but the fulfilment of its object requires private industries and state bureaucracy to cooperate with the judicial process. This is a major challenge to environmental jurisprudence.[20]

[1] M C Mehta v. Union of India, 1987 SCR (1) 819.

[2] A.P. Pollution Control Board v. M.V.Nayadu, 1999 (2) SCC 718.

[3] 186^th Report on Proposal to Constitute Environment Courts, LAW COMMISSION OF INDIA (Feb. 26, 2015, 05:30 PM).

[4] Praveen Bhargav, Everything you need to know about the National Green Tribunal (NGT), CONSERVATION INDIA (Feb. 26, 2015, 10:00 PM), http://www.conservationindia.org/resources/ngt.

[5] Note that the Wild Life (Protection) Act, 1972 is out of its ambit.

[6] M.P. Pollution Control Board v. Staller House, judgment dated 8 August 2013.

[7] Aruna B Venkat, The National Green Tribunal Act, 2010: An Overview, [2011] NALSARLawRw 7, 102.

[8] Section 19(1), the National Green Tribunal Act, 2010.

[9] Id., Section 19(3).

[10] Id., Section 19(4).

[11] Id., Section 15(1).

[12] Id., Section 22.

[13] Id., Section 20.

[14] Vellore Citizens’ Welfare Forum v. Union of India AIR 1996 SC 2715.

[15] T. Muruganandam v. Ministry of Environment & Forests, judgment dated 10 November 2014.

[16] Krishan Kant Singh v. M/s. Hindustan Cocacola Beverages Pvt. Ltd., Mehdiganj, Rajatalab,

Varanasi, judgment dated 20 January 2015.

[17] Goa Foundation v. Union of India, judgment dated 18 July 2013.

[18] Report of the World Commission on Environment and Development, Our Common Future (1987) (the

Brundtland Report).

[19] Balachandra Bhikaji Nalwade v. Ministry of Environment and Forests, judgment dated 29 November 2011.

^{^[20]} Upendra Baxi, Law and Environment – Quest for Environmental Justice, UPEN’S WRITINGS: 1960-2008 (Feb. 27, 2015, 10:00 AM), http://upendrabaxi.in/.

Free speech on the internet and applications of Section 66A in the virtual world – to tweet or not to tweet

Guest Post

March 2, 2015

This article is written by Shaambhavi Bhansali.

Section 66 A of the Information Technology Act has irked many for its blind and disingenuous replication of the British Statute and has posed a big question on the democratic right of free speech on the internet in India. The alarming rate at which cases under this section have multiplied forces us to ponder whether we, as citizens, have to consult legal notes before posting a message online or sending an SMS? If not, how big a risk are we and the person who ‘Likes’ what we say? Can a society be called democratic if it were to criminalise opinions that are likely to cause mere annoyance, inconvenience, insult or ill will?

May 2014 saw the arrest of 5 students by the Bangalore Police Department for alleged circulation of anti-Modi messages on Whatsapp under Section 505 of Indian Penal Code and Section 66 A of the IT Act. So what did the offensive message really contain? According to a Bangalore Mirror report, “The morphed picture showed the final rites of Modi being performed, attended by L K Advani, Rajnath Singh, Sushma Swaraj, Baba Ramdev, Maneka Gandhi and Varun Gandhi. It had a caption: Na Jeet Paye Jhooton Ka Sardar — Ab Ki Baar Antim Sanskar (A false leader will never win, this time it’s final rites).” The arrest was made under the pretext of message being wrong, alarming and prone to terror.

In one such other case, K.V. Srinivasan, a businessman tweeted to his 16 followers saying that Karti Chidambaram, a politician and son of then Finance Minister P Chidambaram, had “amassed more wealth than Vadra”. Karti Chidambaram, predictably did not take the tweet in good humour and filed a case against Mr. Srinivasan under Section 66 A of the IT Act. The Police acted with unusual alacrity and arrested Mr. Srinivasan at 5:00 a.m. on the next morning. Interestingly, Senior politician and then Janata Party president Subramanian Swamy had made stronger corruption allegations against Karti Chidambaram twice in the same year as Ravi Srinivasan twitter case. But no action was taken against Mr Swamy.

In yet another baffling incident, 2 young girls were arrested and sent to 14 days judicial custody for posting and liking a status on facebook opposing the shutdown of Mumbai following demise of popular politician, Bal Thackrey. Yet again, the garb of Section 66 A was used to level charges for allegedly sending and liking a ‘grossly offensive’ and ‘menacing’ message through a communication device.

Can writing an honest opinion about government actions or a political entity be qualified as menacing in nature by prudent individuals and would such an action not be a violation of free speech as enshrined under our constitution? Sure, the message possibly caused annoyance to a miniscule section of society, but do the present cases even remotely fall under the reasonable restrictions on freedom of speech and expression? Can the police be given such expansive and discretionary powers to interpret the law and arbitrarily arrest a person for so much as liking an opinion?

SO WHAT DOES SECTION 66 A OF THE IT ACT REALLY SAY?

Section 66A of the IT (Amendment) Act, 2008 states:

“66A. Punishment for sending offensive messages through communication service, etc.,
Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character;

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation: For the purposes of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.”

Meaning

Section 66 A basically lays down punishment for sending out “offensive” messages through a computer or any communication device including mobile phones and tablets. The punishment under this section can extend to a maximum of 3 years and fine.

India has over 220 million internet users, 100 million facebookers and about 33 million Twitter users. Given the rapid innovation and advent in technology, new free speech opportunities are increasingly being offered by social media. Now, due to the extreme broad and ambiguous wording of Section 66 A, there could be millions of situations where raising a political opinion or making an innocuous political joke on such platforms could lead to criminalisation and mar the precious democracy that India proudly enjoys. For instance, if you swear or abuse somebody, the swear words could be said to be grossly offensive, could also be said to be having menacing character and your act could come within the ambit of Section 66 A. Electronic morphing which shows a person depicted in a bad light could also be seen as an example of information being grossly offensive or having menacing character. Threatening somebody with consequences for his life may also be construed as information which is grossly offensive or menacing.

Thus, in absence of any yardstick or specific definition given under the law, the interpretation of this section is wholly dependent on the subjective discretion of the law-enforcement agencies who may have diverse views on the same subject matter. The question which arises then is – can law enforcers have so much interpretative license that it becomes an alibi for discretionary infringement upon civil rights?

IS SECTION 66 A VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION?

Understanding freedom of speech

Freedom of speech and expression means the right to express one’s conviction and opinions freely, by word of mouth, writing, printing, picture or electronic media[1] and includes freedom of propagation of ideas, their publication and circulation[2] and the right to answer the criticism leveled against such views[3]; the right to acquire and impart ideas and information about matters of common interest[4].

Article 19 (1) lays down right to freedom of speech and expression and comes with certain set of restrictions which enables the Legislature to impose restrictions upon freedom of speech and expression, on the following grounds-

Sovereignty and Integrity of India ii. Security of the State iii. Friendly relations with foreign states iv. Public order v. Decency or Morality vi. Contempt of Court vii. Defamation viii. Incitement to an offence

Hence, even though as citizens they must abide by the orders of public officers, laws passed by the Legislature or judgments pronounced by the Courts, they must, at the same time, remain free as ‘the people’, to criticise the competence of or orders made by public officers, the policies involved in legislative measures and the merits of judicial decisions if they are to govern themselves. The Supreme Court in Union of India v. Assn. for Democratic Reforms[5] observed that: “One-sided information, disinformation, misinformation and non information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions”

So basically what these restrictions imply is that while it would be legitimate for the state to punish utterances which incite violence or have a tendency to create public disorder, it cannot suppress even a very strong criticism of the measure of Government or acts of public officials which has no such tendency.[6] Further, legitimate expression of views or ideas cannot be suppressed on the ground of intolerance others or of the existence of a ‘hostile audience.’[7] Thus, any restriction imposed upon the above freedom is prima facie unconstitutional, unless it can be justified under the limitation clause, i.e., Clause 2.

Analysis of Section 66 A with respect to Freedom of Speech

Section 66 A (a) makes sending out information which is grossly offensive and of menacing character punishable. Further, the section is silent as to who shall determine whether the information is of grossly offensive/menacing character.

Section 66A(b) has three main elements: (1) that the communication be known to be false; (2) that it be for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will; (3) that it be communicated persistently. The pivotal moot point here is that “annoyance”, “inconvenience”, “insult”, “ill will” and “hatred” are very different from “injury”, “danger, and “criminal intimidation” and the fact that they are put into one category is quite astonishing. More importantly what is to be understood is that it is very difficult to examine all publications on a common yardstick and what may be laughable allegation to progressive people could appear as heresy to a conservative or sensitive one[8].

Section 66 A (c) was inserted by the legislature as an anti-spam provision and makes an email sent “for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages” as a ground for punishment. For instance, if say due to some personal conflict of interest, a person writes a fiery email to his lawyer stating that he has failed his duties and that he should have never appointed him then, in all probability this email is going to cause annoyance to the lawyer. But is such annoyance really worthy of being punished? Will the inconvenience/ annoyance caused really fall under the reasonable restrictions of Article 19? Is such annoyance or inconvenience detrimental to the national security or public order of the country?

No democratic nation should want to curb internet freedom save in specific cases based on clear objectives. Thus, a penal law which is so vague and uncertain that it gives no notice to the accused as to what act or conduct would constitute the offence, or which imposes vicarious criminal liability, is unreasonable from substantive point of view.[9] The drafters of Section 66A(b) have equated known criminal offences in the real world with acts such as causing annoyance and inconvenience that can never constitute an offence in the real world and should not be offences in the virtual world. Therefore, the legislative restrictions on freedom of speech in Section 66A(b) cannot be considered as being necessary to achieve a legitimate objective. Section 66A should not be considered a ‘reasonable restriction’ within the meaning of Article 19 of the Constitution and must be struck down as an unconstitutional restriction on freedom of speech. If political speech, that is, criticism of politicians and exposure of corruption continues to be punished by arrest instead of being protected, India’s precious democracy and free society will be no more.[10]

SECTION 66 A – A CLOAK USED BY POLITICAL PARTIES TO SHUN CRITICISM?

The offence laid down under Section 66 A is cognisable and allows the Police to arrest and/or investigate the offending citizens without warrant. As a consequence, numerous citizens were arrested arbitrarily for putting objectionable content on the internet, where the objectionable content was more often than not merely an opinion dissenting some political opinion. To elucidate further, one may recall some glaring cases of such arrests –

Sanjay Chaudhary for posting ‘objectionable comments and caricatures’ of Prime Minister Manmohan Singh, Union Minister Kapil Sibal and Samajwadi Party president Mulayam Singh Yadav on his Facebook wall;
Manoj Oswal for having caused ‘inconvenience’ to relatives of Nationalist Congress Party chief Sharad Pawar for allegations made on his website;
Jadavpur University Professor Ambikesh Mahapatra for a political cartoon about West Bengal Chief Minister Mamata Banerjee;
two Air India employees, who were jailed for 12 days for allegedly defamatory remarks on Facebook and Orkut against a trade union leader and a politician, and
Aseem Trivedi, accused of violation of the IT Act for drawing cartoons lampooning Parliament and the Constitution to depict its ineffectiveness.

Ironically, Section 66 A has never been used against a politician till date. One may then easily conclude that Section 66 A is used by political leaders and parties as a lethal tool to gag any voice that raises a question on their belief, policy or actions. What is perhaps shocking is the power that such political leaders exercise over the police authorities and how the otherwise infamous police acts with supreme agility and speed when it comes to simple harmless criticism made against such political bodies.

DOES THE LAW PROVIDE FOR A REMEDY AGAINST SUCH ARBITRARY ARRESTS?

Unfortunately, there is a lacuna in the regulatory framework for the effective investigation of cyber crimes and a general lack of awareness regarding cyber crimes on the part of police authorities. The absence of uniformity in cyber security control and enforcement practices puts the citizens at a greater risk of being subjected to undue police harassment.

A petition[11] has been filed before the Supreme Court for issuing guidelines to formulate an appropriate regulatory framework of rules, regulations and guidelines for the effective investigation of cyber crimes and to carry out awareness campaigns particularly for investigating agencies, intermediaries and the judiciary regarding the various forms of cyber crimes sought to be penalised.

However, as of today, the Petition remains pending before the Supreme Court and the arrests as shown above have not abated. Sadly, until some set guidelines are issued by the apex court, the netizens remain at the mercy of the police officers. Unbridled political interference in law enforcement is itself a burning issue and to argue that senior police officers who are often times controlled by political tyrants, will always succeed in resisting mob pressure or political diktats isn’t very persuasive.

WHAT HAS TRANSPIRED IN THE SUPREME COURT SO FAR?

Several PILs have been filed challenging the constitutionality of Section 66A of the IT Act. In a November 2012, the first PIL came to be filed by Shreya Singhal who submitted to the Supreme Court that Section 66A curbs freedom of speech and expression and violates Articles 14, 19 and 21 of the Constitution. The petition further contended that the expressions used in the Section are “vague” and “ambiguous” and that 66A is subject to “wanton abuse” in view of the subjective powers conferred on the police to interpret the law.

The PILs came to be first heard in 2014. The Union government defended the constitutionality of Section 66A stating that directives were issued to all state governments that arrests under Section 66 A can only be made with the approval of senior police officers.

The Petition was last heard on February 25, 2015 and the apex court after hearing the marathon of arguments put forth by the Petitioners and Centre has reserved its verdict on the constitutionality of the provisions of Section 66 A.

STRIKING A BALANCE

India is one of the largest democracies of the world and it is for this reason that reasonable restrictions on freedom of speech must be strictly construed. Section 66A of the amended Indian Information Technology Act, 2000 brings with it several evils which have created an uproar all over the country for being draconian in nature. Though the provisions of this section have been inspired by the noble objectives of protecting reputations and preventing misuse of networks, it failed miserably to achieve its objectives. The more narrowly focused the section, the better it is, since laws of libel and defamation already exist along with other laws pertaining to maintenance of public order.

HOW CAN SECTION 66 A BE USED MORE CONSTRUCTIVELY – THE WAY FORWARD

Are you a victim of hateful and graphically violent messages on the internet? Have your female friends often complained of incessant misogynist posts that go far beyond constructive criticism? Do your elderly relatives grieve over being duped into giving sensitive information which changed their bank balances?

Women face large amounts of sexist harassment, abuse and discrimination on the basis of their gender, rather than their opinions, thoughts or beliefs. Bloggers, Tweeters, journalists and Facebook users with prominent profiles face rape threats, violent pornographic vitriol, sexual harassment, accusations of promiscuity, and various forms of humiliation on a daily basis. This is a global problem with very little conversation or legal recourse surrounding it. In India, the first law to which a woman could logically recourse is Section 66A of the IT Act. In October 2014, Chinmayi Sripada, a Tamilian singer lodged a complaint with the Chennai Police stating that a few individuals were tweeting about her and her mother and making “casteist” and “vulgar” remarks. The Chennai police registered a case under Section 66A, and Tamil Nadu’s Prevention of Harassment of Women law and eventually arrested the two men under Section 66 A.

Another issue that Section 66 A aimed to achieve through its anti-spamming provision was a check on phishing activities that were unheard of couple of years back but recently have taken steep rise in India. The most common form of phishing is by emails pretending to be from a bank, where the sinister representative asks you to confirm your personal information/login detail for some made up reason like the bank is going to upgrade its server. Needless to say, the email contains a link to a fake website that looks exactly like the genuine site. The gullible customers, thinking that it is from the bank, enter the information asked for and send it into the hands of identity thieves. Since, the fraudster disguises himself as the real banker and uses the unique identifying feature of the bank or organisation say Logo, trademark etc. to deceive or to mislead the recipient about the origin of such email and thus, it clearly attracts the provisions of Section 66A IT Act, 2000.

Unfortunately, Section 66 A has caught the wrong spot light and the purpose for which the draftsmen amended the section has been washed away due to the rising number of arbitrary arrests. Section 66 A can be effectively used to deal with spam messages and curb phishing activities that are leading to increasing crime against thousands of innocent citizens. It can also be an effective deterrent for those putting offensive and threatening content on the internet. However, one may note that the poorly worded Section 66A is full of vague, undefined terminology, which means that its implementation will always be a subjective matter for those trying the case.

LEARNINGS

Even though Section 66 A has been widely criticised, you must remember that free speech was never intended to be an uncontrollable license to do anything inimical to the public welfare and the state shall always be entitled to punish those who abuse this freedom by utterances ‘tending to corrupt public morals, incitement to crime, or disturb public peace or utterances causing private injury’. Article 19 brings with it a fundamental right, the enjoyment of which is to be exercised with certain sense of responsibility.

Till the time Section 66A is either changed, modified, varied or amended, each of you must exercise due diligence before sending out any information on the Internet or voicing your opinion on social media, lest you may find yourself woken in the wee hours of the morning by our diligent cops.

[1] LIC v. Manubhai D. Shah, Prof., AIR 1993 SC 171 (para5): (1992) 3 SCC 637; People’s Union for Civil Liberties v. Union of India, (1997) a SCC 301 (para 19)

[2] Romesh Thappar v. State of Madras, AIR 1950 SC 124.

[3] LIC v. Manubhai D. Shah, Prof., AIR 1993 SC 171 (para5)

[4] Hamdard Dawakhana v. Union of India, AIR 1960 SC 554

[5] AIR 2001 Delhi 126

[6] Kedar Nath Singh V. State of Bihar, AIR 1962 SC 955

[7] Rangarajan s. v. Jagjivan Ram (1989) 2 SCJ 128

[8] BaragurRamachandrappa v. State of Karnataka, (2007) 5 SCC 11, (para 12)

[9] State of M.P. v. Baldeo Prasad, AIR 1961 SC 293(298)

[10] http://www.thehindu.com/opinion/lead/an-unreasonable-restriction/article4432360.ece

[11] Dilipkumar Tulsidas Shah v. UoI [W.P.(C).No. 97 of 2013]

From Outside the Frontiers: Laws on International Adoption

Guest Post

February 21, 2015

This article is written by Vishakha Gupta, a student of NUJS, Kolkata.

“Perhaps there is no greater miracle than finding a loving home for a child who needs one.” – President Bill Clinton

Someone very famously said, “your greatest contribution to the kingdom of God may not be something you do but someone you raise.” By raising a child, parents leave behind a part of them in the world. The couples who are unable to naturally conceive, or those who shy away from bearing a child for whatever reason, or those intending to be single parents often turn to adoption as their recourse. Apart from the fulfillment of natural desires, adoption today is trending as a mechanism to help people. Adopting children who are unwanted by their natural family or have been deprived of their family by some extraneous circumstance subserves a larger purpose and what better than to enrich another life in the pursuit of enriching your own. Given the right environment a child can grow up to be someone to change the world. Steve Jobs was adopted by an Armenian family, after he was given up by his biological parents. Nelson Mandela was adopted by Chief Jongintaba Dalindyebo, the acting regent of the Thembu people after death of his parents. Michael Oher, inspiring the movie Blind Side, went on from being an abandoned African- American child to a professional football player under the care of his adoptive family.

Who can be adopted?

The 2011 guidelines allow for adoption of an orphan, abandoned or surrendered child, if declared free for adoption by the Child Welfare Committee. Such adoption must be made following the procedure laid down in the guidelines. While any adoption, the primary concern of the agency would be the best interests of the child. It is for this reason that an in-country adoption is given preference over inter-country adoption. In pursuance of this, in- country adoption is preferred over inter-country adoption. The adoption process should be so as to not allow any profit or gain, whether financial or otherwise.

Who can adopt?

Adoption in India is regulated by the National Adoption Agency, which released Guidelines Governing the Adoption of Children in 2006 and revised Guidelines in 2011.The Guidelines permit parents already having children, couples who do not have children and individuals notwithstanding his or her marital status to adopt. Additional conditions have been imposed by Section 6 of the Guidelines. A married couple must have at least two years standing relationship. Live-in couples cannot adopt. The Prospective Adoptive Parents (PAPs) must have financial resources commensurate with the practical requirements of raising a child. An unmarried male cannot adopt a girl child. Other requirements are:

“ (3) To adopt a child in the age group of 0-3 years, the maximum composite age of the PAPs should be 90 years wherein the individual age of the PAPs should not be less than 25 years and more than 50 years.

(4) To adopt children above three years of age, the maximum composite age of the PAPs should be 105 years wherein the individual age of the PAPs should not be less than 25 years and more than 55 years.

(5) In case a single PAP desires to adopt, he or she should not be less than 30 years of age and shall not be above the age of 50 years. The maximum age shall be 45 years to adopt children in the age group of 0-3 years and 50 years for adopting children above 3 years.

(7) The PAPs should have good health and should not be suffering from any contagious or terminal disease or any such mental or physical condition, which may prevent them from taking care of the child.

(8) Adoption of a second child is permissible only when the legal adoption of the first child has been finalized but this is not applicable in case of siblings.”

International Adoption

Continually rising population of Earth has given rise to the trend of inter-country adoption. Not only it gives more options to the PAPs, it also confers a hope on the children from less developed nations who otherwise lead a bleak life, of achieving greatness in life. Actors Brad Pitt and Angelina Jolie have done their bit by adopting three children from Ethiopia, Cambodia and Vietnam (see here).

In India, the laws before 2006 were not in the least bit conducive to international adoption. The Guidelines allow the citizens of all countries, whether or not they are member to the Hague Convention on Inter-country Adoption, 1993 to adopt from India. For such adoptions, priority is given to Non-Resident Indians, followed by Overseas Citizen of India, Persons of Indian Origin and Foreign Nationals.

Procedure for international adoption

For foreign nationals residing abroad:

The PAPs should register with an Authorised Foreign Adoption Agency (AFAA) or Central Authority nearest to their place of residence. If there is no AFAA or Central Authority (CA) in the country, the PAPs can approach Indian High Commission or Embassy for processing and forwarding their case to Central Adoption Resource Authority (CARA).
A professional social worker will conduct a Home study of the PAPs and prepare a Home Study report, which will indicate PAPs’ preferences with respect to child’s age, gender, physical condition, medical requirements, and location within India, if any.
This report will be forwarded to a suitable Recognised Indian Placement Agency (RIPA), as identified by CARA.
RIPA will refer, assign and place the child. CARA has the right to reject the recommendation. From the date of referral, the adoption must be executed within forty-five days.
An Adoption Recommendation Committee, established by the respective State Government will inspect dossiers presented by State Adoption Resource Authority (SARA) and grant a Recommendation Certificate for placement of the child. The Certificate along with the dossier will be forwarded by RIPA to CARA
A ‘No Objection Certificate (NOC) Committee’ will be instituted by CARA which after inspecting documents forwarded by RIPA and ensuring that all procedures have been duly complied with, will issue a ‘No Objection Certificate’. Once the dossier is received by CARA, Certificate must be granted/ refused within fifteen days. A copy of this certificate is to be forwarded to RIPA and the concerned Adoption Authority (SARA/Adoption Coordination Agency/AFAA/CA/Government Department of the receiving country).
RIPA may give the child to PAPs for pre-adoption foster care. At this juncture, the PAPs cannot leave the city and cannot return the child, except in case of a disruption.
RIPA will apply to the competent court for a court order to effectuate the inter-country adoption. The Court must dispose the case within two months. [K.Pandey vs. Union of India (1984) 2 SCC 241; see the full judgment here]
Once a Court order is passed, CARA will issue a ‘Conformity Certificate’ in pursuance of Article 23 of the Hague Convention. RIPA will apply for a passport for the child.
Adoptive parents will have to come to India to take the child with them.

In case of a Foreign National residing in India, PAP(s) shall apply to CARA along with a certificate of No-Objection to the proposed adoption from the embassy or mission of the country of their nationality. CARA will refer the case to RIPA thereafter for execution of the Home Study and preparation of PAPs’ dossier. Further procedures will be same as in case of Foreign Nationals residing abroad.

The Overseas Citizens of India (for definition see here), who are citizens of a country party to the Hague Convention and has been residing in India for more than a year are qualified to adopt. The procedure is same as for a Foreign National residing in India.

Issues concerning International adoption

In recent years many debates have centered on whether international adoption should be banned. The supporters of international adoption talk of the benefit that adopters from developed nations can confer on children from developing countries. The opposition cites reports of illegal human trafficking and corruption that have surfaced over years (see here and here and here) This debate has raised doubts over the illustrious façade of international adoption. Are children really getting better lives or are they exposed to a new world of heinous crimes.

One of the major reasons international adoption is resorted to by prospective parents is that the domestic law for adoption is usually much more stringent than the international laws. Countries, generally, are also in support of international adoption. To this end, in India, the Guidelines were released to ease the process of international adoption. The counterforce is exerted by the government agencies that are in constant lookout for loopholes to prevent adoption. This is done in the idea of serving the child’s best interest, protecting them from trafficking, kidnapping and the like. But more often than not, the agencies also create unnecessary hurdles and delays for genuine PAPs to adopt. Thus, the courts must carry the torch for protecting the interests of adopted children and PAPs. Section 16, that talks of authorities for in-country adoption and Section 26, that talks of authorities for inter-country adoption, mention ‘Courts of Competent Jurisdiction who can pass order for Adoption’.

Courts need to provide a harmonious interpretation of the Guidelines so that the interest of the child is maintained as well as proper checks and balances are put in place. The role of the Courts in adoption process comes from ‘parens patriae’ jurisdiction. This gives the Courts power to exercise their discretion in any situation concerning adoption. Courts review the facts and circumstances of cases to decide whether the State should step in as guardian of the child. States adopt this responsibility to the safeguard the interests of those under a legal disability. [In re R.R. George Christopher 2009 SCCOnline Madras 1200; see the full judgment here]

The idea behind Parens Patriae is that if a citizen is in need of someone who can act as a parent who can make decisions and take some other action, sometimes the State is best qualified to take on this role. Parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons. Parens patriae jurisdiction is the right of the sovereign and imposes a duty on the sovereign, in public interest, to protect persons under disability who have no rightful protector. [Charan Lal Sahu v. Union of India (1990) 1 SCC 61; Aruna Ramchandra Shanbaug vs Union of India (2011) 2 SCC (Cri) 352; see the judgments here and here].

The doctrine of parens patriae has been iterated by the Courts repeatedly. The Court steps into the shoes of the parents to decide the course of action that would best deliver prosperity to the child.

In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the Court is exercising ‘parens patriae’ jurisdiction and is expected to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings, but over and above physical comforts, the moral and ethical values should also be noted. It need not look at the issue on a legalistic basis but human angles are also to be considered as relevant for deciding the issues. [Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42; Nil Ratan Kundu vs Abhijit Kundu (2008) 9 SCC 413; see the judgments here and here]

Despite the smooth process laid down in the Guidelines, the High Courts and the lower courts have adopted a restrictive view towards inter-country adoption. In Craig Allen Coates v State [2010 (11) SCR 102; see the full judgment here], the Delhi High Court refused adoption on the ground that the couple already has three children and the fourth child might be neglected, or exploited as a helper as one of the parents is disabled. The Supreme Court found it fishy that the couple wants to adopt from India and not their home country where it would be easier for the child to adapt. In Theresa Tender Loving Care Home v State of Andhra Pradesh [AIR 2005 SC 4375; see the full judgment here], the Court did not interfere with the decision of the agencies to refuse adoption to an organization that engaged in welfare of abandoned children. The child was living in pathetic conditions in a State run orphanage. The pathetic conditions were acknowledged by the Court. The child had been happily living with the appellants for five years. Nevertheless, the Court did not allow the organization to adopt. In Stephanie Joan Becker v State and Ors, [AIR 2013 SC 3495; see the full judgment here] the only ground on which the High Court refused adoption was that the prospective mother was aged 53 years which violates the requirement of maximum age 45 years as under the guidelines. The Delhi High Court refused to bow down even though a NOC had been granted by CARA relaxing the age requirement under the guidelines.

The Supreme Court displayed a changing attitude towards foreign adoption in 2013. The Court in Stephanie Joan stepped in and allowed the appellant to adopt. The Supreme Court asserted their right to allow adoption depending on the facts and circumstances. This is one of the few cases where courts have bypassed strict adherence with the guidelines to allow adoption. This case brought about a change in the courts’ approach. In 2014, the Delhi High, in stark contrast to the Theresa judgment, allowed a couple who knew the child from before to adopt the child. In David Hambly case [David Kenneth Hambly v Pinto Kumar 2014 SCC OnLine Del 4135; see the full judgment here], the lower courts refused adoption of a girl orphan to a Canadian couple, even though the girl was in good relations with the couple. The grounds for refusal were very flimsy. Delhi High Court overruled the lower court’s decision allowing, Sarah to be adopted by the Canadian couple. Sarah was an orphan and lived with her paternal uncle, who wasn’t able to financially support her. The employers of the uncle, was a Canadian couple operating a bakery in Delhi who got affectionate with Sarah and wanted to adopt her. The agencies and the lower court refused to permit adoption of flimsy grounds. The Delhi High Court undertook a review of the guidelines. It asked Child Welfare Committee to inspect the family. The CWC did accordingly and declared the child free for adoption. The Court comprehended the impact of displacing the child, and that the child will be in much better care with the Canadian couple. Thus, it allowed the adoption. The Court, sympathizing with the relation between Sarah and the PAPs, used Section 22 of the guidelines, which talks of pre-adoption foster care, to allow the child to live with them till the formalities are completed. It ordered CARA to finish the formalities within eight weeks, and issue the final order within four months, to ensure timely completion. This is a landmark judgment and must be regarded as a worthy precedent by the cases to follow.

International adoption is a complicated procedure, which involves a number of concerns with respect to the safety and welfare of the child. Nevertheless, by such adoption, a family gives a new life and hope to a child who otherwise would have suffered in orphanages, leading an uneventful life. A strict scrutiny by the courts is justified due to the steeply rising number of trafficking cases. However, the Courts must look out for genuine cases to give an abandoned child the gift of life.

Disclosures to be made by a candidate when contesting an election in India

Guest Post

February 19, 2015

This article is written by Shweta Choudhary, a student of Bangalore Institute of Legal Studies.

INTRODUCTION

In June 2014 it was revealed that Narendra Modi was married and had not disclosed that he have a wife while contesting Assembly polls in 2012 and only mentioned of having a wife for the first time in election affidavit. There were demands from the opposition party for his arrest as he had concealed this information and was punishable under section 125(A) (3).

So why should he be punished for concealing a part of information? What happened to him after the information was revealed to the public? Why is it important to disclose all information to contest a valid election? After reading this article, I am sure you would able to know about what information are needed to be disclosed when standing for election and what are the effects of non-disclosure.

ELIGIBILITY FOR CONTESTING ELECTIONS IN INDIA

A non-citizen cannot be a contesting candidate in the elections because in Article 84(a) of the Constitution of India only citizen of India is allowed to stand in an election. A non-citizen will not be elected to fill the parliament seat.
Minimum age to become a candidate in Lok Sabha or Assembly Election is twenty years.
If the person wants to contest an election then he has to register under voters He has to be a voter.
As per Sec. 8(3) of Representation of People, 1951 if the person has been convicted of any offence and been imprisoned for more than 2 years then he is barred from contesting the elections.
If a person is candidate of a recognized National or State party, he has to have only one proposer for his nomination.
If you are an independent candidate or candidate from unrecognized party, then 10 proposers are needed for nomination.
The Election Commission of India recommended in 1998 that candidates with pending cases are not allowed to contest elections.

DISCLOSURE BY THE CANDIDATES STANDING IN THE ELECTIONS

One point is very important for the politician for standing for an election i.e. transparency. He should disclose all information that is required to be disclosed to the public. The public has to know the candidate for whom they are going to vote for. They need to trust the person so that they know they are not electing someone who is fraud. Only making promises regarding their conditions, health etc. would not help in making them sway towards you. Their trust & belief will lead them to vote.

Non-Disclosure of any vital point if released later will create mistrust in the mind of people who have voted for and the person might lose support of them in future.

In Common Cause case, (1996) 2 SCC 752 the Court dealt with an issue that elections that are held in India was fought with the help of black money and collecting black money would become easier if they win which in turn will help them in re-election. So if in the affidavit the candidate reveals all the personal information about his funds it will be easier for the voters to know about it and decide whom they want to vote for and not elect law breakers. The Supreme Court states that the voters have the fundamental rights to know about the candidates who are standing for election as it is very significant in the democracy in India.

UNION OF INDIA VS. ASSOCIATION FOR DEMOCRATIC REFORMS AND ANOTHER

The screening of candidates resulted in huge opposition among the general public and the concerned parties had to remove the candidates with a criminal record. Due to huge pressure from the general public in Andhra Pradesh the parties prevented themselves from nominating candidates with criminal record.

On May 2, 2002, the Apex court reasonably said that the voters have a fundamental right to know about the criminal and financial records of the politicians.

EC notification on June, 2002 made it mandatory for the politicians to disclose their- 1) Criminal Records which included Convictions, charges that are pending and case that are taken cognizance, 2) Financial Records which includes assets, liabilities and dues from the public financial institution of election candidate, spouse and family member.

The Union Government drafted an Ordinance with provisions which violated Article 19(1)’s decree on fundamental rights. On Aug 16 2002, the same ordinance was recommended to the President of India for approval and also on the same day the citizens and activists requested the President to refer the flawed ordinance to Supreme Court under Article 143 due to its unconstitutional nature.

The point that has to be noted here is that the Government with support of major political parties was not in favor of making the mandatory disclosure of information of the candidates standing for election. i.e. Criminal and financial records. The President returned back the ordinance to the government which was not at all surprising but the cabinet returned it back to the President without making any changes so the President didn’t have any choice but to pass the ordinance. Later on Parliament made the amendment to the Representation of Act and included the intentions of the Government in law.

The National Campaign for Electoral Reforms, Lok SATTA, PUCL and ADR didn’t give up and challenged the constitutionality of the ordinance.. Sri PP Rao and Sri Prashant Bhushan appeared for LOK SATTA before Supreme Court and Justice Rajinder Sachar, Sri Sanjay Parikh and Ms Kamini Jaiswal appeared on behalf of the other petitioners. The Supreme Court strikes down section 33B of the Representative of India and rejected the 13^th March’s verdict

In Union of India vs. Association for Democratic Reforms and Another (2002) 5 SCC 294, it was held that “Citizens have a right to know about public functionaries and candidates for office, including their assets and criminal and educational backgrounds, which right is derived from the constitutional right to freedom of speech and expression.” And “(1) When the legislature is silent on a particular subject and an entity (in this case, the Election Commission) has been granted implementation authority with respect to such subject, the Court assumes that the entity has the power to issue directions or orders to fill such a void until a suitable law on the subject is enacted;”

This decision has the following consequences:

The Parliament cannot prevent the candidate from knowing about the candidates.

The court directed that the following information should be revealed by the candidates for the public:-

1) All convictions,

2) Charges framed

3) Cases of which cognizance was taken should be revealed.

The law also made this mandatory for the candidates to disclosure about the following:-

The candidates will now have to reveal all criminal record as per SC judgment and EC’s notification.
Candidates have to disclose statement of assets (immovable, movable, bank balances),
Liabilities, and
Dues to public financial institutions in respect of themselves, spouses and members of their families.
Disclosure of educational qualifications was also made mandatory.
The Election Commission of India has asked the Presidents/Chairmen/general secretaries of all recognized national and state political parties to ask their candidates to also disclose their assets which will include details of their accounts in foreign banks, possession of properties or investment overseas along with loans and liabilities so the voters know the financial conditions and know the source of income outside the country in the affidavit that are outside India, if any.
Sources of income & their utilization which could be check by the income tax department also including art of “Register of Interest”. The information should include these details
1. Name of companies with controlling shareholding interest,
2. Directorship in various trusts and companies
The candidate has to give information about pending cases in which cognizance has been taken by a Court.
Educational qualifications
Annual Income of the candidate for his profession and tax purpose.

In terms of Section 33A of the Representation of the People Act, 1951, read with Rule 4A of Conduct of Election Rules, 1961, each candidate has

To file an affidavit in Form 26 appended to the Conduct of Election Rules,

1961, giving information on the following: –

All the cases for an offence other than the offences mentioned in the TP Act of People 1951 and have been sentenced for one year or more.
Convictions involving a sentence of one year or more, and
Pending charges (framed by a magistrate) entailing a sentence of imprisonment of two years or more.

PUNISHMENTS FOR NON-DISCLOSURE BY THE CANDIDATE

“Non-disclosure (non-filing of affidavits) will clearly be a ground for rejection of nomination.”

Section.100. of Representation of People’s Act – Grounds for declaring election to be void.—1) Subject to the provisions of sub-section (2) if 3[the High

Court] is of opinion—

d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected—

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned

candidate 1[by an agent other than his election agent], or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non—compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,

Section 125A of Representative Act –

“[125A. Penalty for filing false affidavit, etc.—A candidate who himself or through his proposer, with intent to be elected in an

Election ,—

(i) fails to furnish information relating to sub-section (1) of section 33A; or

(ii) give false information which he knows or has reason to believe to be false; or

(iii) conceals any information, in his nomination paper delivered under sub-section (1) of section 33 or in his affidavit which is required to be delivered under Sub-section (2) of section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being

in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.].”

Section 8(1)(i) of Representation of the People’s Act 1951-

“Section 8-[(1) A person convicted of an offence punishable under—

Section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) of clause (a) of

Sub-section (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act.”

CONCLUSION

Answering to the question I had raised earlier in the introduction about Narendra Modi who had committed an offence by hiding the fact that he had a wife. The result was that though he was guilty of non-disclosure under Section 125(A)(3) he was not punished and given a clean chit because under Section 48(2)(B) of CrPc states that-“No court shall take cognizance of an offence of the category after the expiry of the period of limitation.” The section says that the offence should be filled with one year which is punishable for one year. So the FIR could not be entertained as it has crossed the time period.

So disclosure of all information by the candidates is mandatory as this is a democratic country and the public is entitled to know about the candidates who stand for election for transparency. General awareness of the candidates is one of essentials for free & fair election. Article 19(1) also states the right of people to have knowledge about the candidates standing in the election .I think we need to thank “Lok Satta” for their continuous efforts to make the candidates reveal their personal information mandatory for the public to know and think about whom to vote.

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Introduction

Interesting Facts

Haryana- Land of the Lowest sex ratio

Marital rape laws in other countries

Conclusion

References

The Pros and the Cons

Anti-spam Legislation in Other Countries

Position in India

How Government acquires the coal bearing land?

Who can engage in coal mining?

Can Central Government allocate coal mines?

The valid/ constitutional method of allocation of coal mines

Applying for a lease or license of coal mines

Duration of lease or license of coal mines

Procedure to acquire a lease or license of a coal mine

Commercial use of coal mining by private parties and selling coal in open market

INTRODUCTION

SALIENT FEATURES OF THE ACT

THE WAY FORWARD

SO WHAT DOES SECTION 66 A OF THE IT ACT REALLY SAY?

Meaning

IS SECTION 66 A VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION?

Understanding freedom of speech

Analysis of Section 66 A with respect to Freedom of Speech

SECTION 66 A – A CLOAK USED BY POLITICAL PARTIES TO SHUN CRITICISM?

DOES THE LAW PROVIDE FOR A REMEDY AGAINST SUCH ARBITRARY ARRESTS?

WHAT HAS TRANSPIRED IN THE SUPREME COURT SO FAR?

STRIKING A BALANCE

HOW CAN SECTION 66 A BE USED MORE CONSTRUCTIVELY – THE WAY FORWARD

LEARNINGS

Who can be adopted?

Who can adopt?

International Adoption

Procedure for international adoption

Issues concerning International adoption

INTRODUCTION

ELIGIBILITY FOR CONTESTING ELECTIONS IN INDIA

DISCLOSURE BY THE CANDIDATES STANDING IN THE ELECTIONS

UNION OF INDIA VS. ASSOCIATION FOR DEMOCRATIC REFORMS AND ANOTHER

PUNISHMENTS FOR NON-DISCLOSURE BY THE CANDIDATE

CONCLUSION

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