Issues faced while patenting biotechnology inventions

September 19, 2021

Patent linkage — Image Source: https://rb.gy/xgvsmp

This article is written by Sakshi Jain, pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from LawSikho.

Table of Contents

Introduction

The term ‘Biotechnology’ refers to the process of modification of living organisms in a manner that makes them valuable for humans. It functions as a fruit on a tree having roots of biological science, microbiology, genetics, molecular biology and biochemistry, and trunk of chemical engineering. As of this day, the rise of biotechnology is gaining momentum in all parts of the world.

Intellectual property is one of the most significant assets of every biotechnology company out there, and patents are the most important intellectual property rights in the field of biotechnology. India has immense potential in the field of biotechnology, but one of the significant hurdles that the industry is facing today is the current legal and regulatory framework. Patents are a controversial issue when it comes to modern biotechnology.

Biotechnology inventions often appear against the legal as well as moral considerations, as these inventions involve tinkering with life as well as a monopoly over life. The legal concerns are centered on the issue as to whether or not as per the current criteria of patentability, life forms may be patented. On the other hand, the moral concerns are centered on the notion that life is not something that can be patented, and living beings are not ideally supposed to become a subject of the patent monopoly. Therefore, despite being a useful area to science, obtaining a patent in biotechnology often becomes tricky in countries like India. This article aims to focus on the intricacies that are faced in the process of patenting biotechnology inventions.

TRIPS Agreement on the patentability of biotechnology inventions

Article 27 of the TRIPS Agreement mentions the agreed international norms on the patentability of the inventions. As per the Article, any product or process is entitled to be patented if it is new, involves an inventive step, and has an industrial application. This criterion prevails in all the countries that are members of the TRIPS Agreement, including India. According to Article 27.2 of the Agreement, the member countries have the discretion to exclude from patentability, inventions that are against public order or morality or would cause serious prejudice to the plant, animal, and human life. Additionally, as per Article 27.3 of the Agreement, the member countries have the discretion to exclude from patentability those inventions that involve therapeutic, diagnostic, and surgical methods along with plants and animals, except microorganisms.

Further, it is pertinent to note that the TRIPS Agreement has not properly elucidated microorganisms and microbiological processes. This triggers confusion as to whether the microorganisms that exist freely in nature are entitled to be patented, or human intervention is required for patenting so as to establish novelty in the said micro-organisms. Additionally, this also leads to uncertainty as to whether or not a product that is produced by a known microorganism is entitled to be patented. Due to this lack of clarity in the TRIPS Agreement, India itself is expected to draw a distinction between the products of human intervention leading to novelty and the ones that are freely occurring in nature.

Patentability of biotechnology inventions : the emerging issues and challenges

In order to be patentable, an invention must be novel and non-obvious in nature. Nonetheless, the basic subject matter of biotechnology inventions is something that already exists in nature. Further, it is a well-settled principle of patent law that the naturally available subject matters are not entitled to be patented because of the fact that they do not contribute to anything new. On the other hand, the core subject matter of biotechnology inventions is something that already exists in nature. Converting these naturally occurring subject matters into private properties is also considered unethical and against the public interest. Additionally, the test of obviousness in the patent law adds up to the difficulties faced in the process of obtaining patents for biotechnology inventions.

The patenting of biotechnology inventions continues to be an issue. Numerous factors are responsible for the arising disputes when it comes to patenting of biotechnology inventions. A few of these factors are elaborated hereunder:

When it comes to biotechnology, the criteria of patentability, i.e., novelty, utility, and non-obviousness have been opening up new challenges. Identifying the characteristic of novelty in living beings is certainly a tough task, if not impossible. This is because of the fact that living beings exist naturally, and therefore it is practically not possible for them to be novel.

Since scientists apply similar techniques for isolating individual gene sequences, obviousness has been another tricky characteristic in the domain of biotechnology.

Further, there are claims that the standards of the characteristic of utility have been raised for innovations in biotechnology. The utility standard is viewed as de minimis in most technologies. Nevertheless, since a lot of biotechnology innovations appear to be ‘unbelievable’ in nature, patents have often been refused for the lack of utility.

Getting the human genome patented requires great concern. The most common issue with this kind of patent is that since human genes occur naturally, they are discovered, and not invented.

Unique features of new innovations can lead to difficult questions of interpretation and understanding of patent law. The difference between invention and discovery is getting blurred in modern biotechnology. Moreover, genetically modified organisms are as unique as inventions. Not only some of them are alive, but also they can reproduce on their own, but they are not well standardized or easily described. If they are released into the environment, there is a possibility of them capriciously interacting with the environment.
The current patent framework may fail in providing sufficient protection to biotechnology inventions. The reason behind this is that genetically engineered inventions are very complex to be precisely and accurately described, therefore making it hard to decide whether the invention is patentable or not.
Additionally, there is a huge possibility of granting the benefit of a patent to an undeserving patentee in the case of biotechnology innovations. This might happen because sometimes, the intricacies that are involved in the making of these inventions make it possible to grant patents on gene fragments, genetic tests, and proteins where the real work is not completely known.

Genetically modified microorganisms

Section 3 (c) of the Patents Act, 1970 (hereinafter referred to as ‘The Act’) impedes patenting of discovery of any living or non-living being occurring naturally in nature. This implies that an isolated and naturally occurring gene is not entitled to be patented, but on the other hand, a genetically modified gene is entitled to be patented if it is new, inventive, and has industrial application. Section 3 (j) of the Act states that plants and animals in ‘whole’ or ‘any part thereof’ are not patentable. Nevertheless, micro-organisms are excluded from the list of non-patentability. Section 3 (c) of the Act states that only modified microorganisms, the ones that do not constitute the discovery of living beings occurring in nature, are entitled to be patented.

Besides the claims on Plants and animals in ‘whole’ or ‘any part thereof’ the claims identifying with essential biological processes of growing plants, germination of seeds, of development stages of plants and animals are objected under Section 3 (j) of Act. In the year 2002, Dimminaco A.G. applied for a patent for his invention of the process for preparing a live vaccine to combat Bursitis, an infectious poultry disease. The Patent Office denied his application on the ground that the process did not represent an invention as per the Act. On appeal, the High Court of Calcutta ruled out that there is no statutory bar to accept a manner of manufacture in order to be patentable if the product contains a living organism.

Animal cloning

The term ‘cloning’ alludes to a large class of reproductive innovations performed in the laboratory, industrial, and even household settings. Home gardeners who propagate their plants with cuttings perform a rudimentary form of cloning. The biological fact that is common to all the forms of cloning is that the new organism or cell has the same genetic make-up, the same DNA, as the original organism or cell from which it was cloned. Cloning technology permits one to produce a population of genetically identical molecules, cells, plants, or animals.

Section 3 (j) of the Act impedes patenting of biological processes for the production or propagation of plants and animals. Further, Section 3 (b) of the Act states that no invention should be contrary to public order or morality or cause serious prejudice to the environment, or the plant, animal, or human life or health. The major issue with animal cloning is the adverse health effects that have been observed in the mammals that have been cloned till date. These include a surge in birth size and several other defects in key organs such as the brain, liver, and heart. Additionally, premature aging and problems with the immune system also have been common. For instance, in the case of Dolly, who was cloned from the cell of a 6-year-old sheep, had chromosomes that were shorter than those of other sheep her age. Dolly died when she was just six years old, i.e., about half the average sheep’s 12-year lifespan. To date, scientists continue to face these issues that cloning brings with itself.

Stem cells

A stem cell refers to a primitive cell that can be persuaded into forming into most of the 220 types of cells that are found in the human body. A few researchers see them as offering the greatest potential for alleviating human suffering. Stem cells can be acquired from adults, but the ones that most researchers consider the most promising are acquired from embryos. Medical researchers aspire to use these stem cells for producing perfectly matched tissues that will replace or repair those organs that have stopped functioning, thus curing ailments including heart problems and diabetes, and maybe even allowing the replacement of body parts. The concerns regarding stem cell research exist in the method by which researchers obtain the stem cells from embryos. The only method to acquire the cells from an embryo is by killing the embryo. Therefore, those people who believe that all human embryonic cells are equivalent to human lives consider it immoral and unethical to utilize them in research.

Section 3(j) of the Act states that plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties, and species and essentially biological processes for production or propagation of plants and animals are not entitled to be patented. Stem cells are considered to fall under the phrase ‘any part thereof’ and thus are excluded from the criteria of patentability. Additionally, stem cells invention can also be objected under Section 3(b) of the Act, which states that an invention which could be contrary to public order or morality or which cause serious prejudice to the environment, or the plant, animal or life or health, are not inventions, and thus, not patentable.

Genetically modified seeds

Biotechnology has immensely helped in the development of plants. To quote an example, genetic engineering helps in presenting new genes with desirable traits such as insect repellent. The Patents Act impedes the grant of a patent on plants, plant varieties, or seeds, but it does not prohibit man-made gene sequences that are present in genetically modified seeds. As per the Protection of Plant Variety and Farmers Right Act, 2001, the making of a new plant variety, which may include its propagating material i.e. the seeds, and includes within its ambit transgenic varieties is protected. Nonetheless, the Patents Act permits biotechnology companies to patent their artificially engineered genes and use them to create transgenic seeds in a lab and sell the same. Seeds can’t be patented in India. This is because a patent is an exclusive right that is granted to an inventor in order to prevent others from making, using, producing, selling, and distributing the patented invention. A patent on seeds will result in keeping farmers from saving and exchanging seeds.

Conclusion

In spite of these obstacles, India has immense potential to utilize biotechnology to tackle a portion of its most obstinate problems of productivity, health, and environment. Biotechnology is progressing at a rapid speed. The biotechnology companies keep on bouncing through the obstacles to patent their inventions. In fact, the business models of most biotechnology companies often depend intensely on intellectual property rights. Patents are one of the most important assets owned by biotechnology companies.

Patents demonstrate that a biotechnology company has the freedom to commercialise its product without infringing on the intellectual property rights of other organisations, and keeping others from selling the same invention for a certain period of time. Knowing the complications and limitations of patenting biotechnology is essential to ensure that technologies that can save lives and further improve the world are properly protected.

References

Students of LawSikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

All you need to know about suppliers contract

Oishika Banerji

September 19, 2021

This article has been written by Shruti Nair pursuing the Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

Table of Contents

Introduction

Let’s assume you are starting a business. What are the elements that come to mind when you are itemizing? This component may not be the first in the list that strikes your mind but sure it is a significant one. The supplier can be an individual, organization, entity or even a country that provides for something to another individual, organization, entity, or a country, according to their requirements. So if you are looking to wrap your head around the concept of Suppliers’ Contracts, this article will make your job easier.

Definition and meaning

A Supplier Contract is a legal agreement between a business and a supplier for the delivery of agreed products or services. These contracts establish the stipulations of the working relationship between both the parties, i.e. the business and the supplier. The terms of the contract clarify the services the supplier has to provide and for what duration. In business, suppliers play a rather imperative role. They act as the middleman between the manufacturer and the customer. A sign of a principled supplier is to ensure building a relationship with his clients while complying with the terms of the contract religiously. Let’s say you have a business of printing t-shirts. Primarily, you will need to make arrangements for plain t-shirts, printing equipment, colours, material for packaging, delivery etc. In this scenario, you are the business and on the other side would be the supplier supplying you with all the essentials, could be one or multiple depending upon your requirements to run the said business.

Importance of Suppliers’ Contract

For a smooth functioning of a business, it is of significance to maintain a supply chain throughout the business. A dispute due to any reason can massively affect the output efficiency of the business. A suppliers’ Contract is not a mandate, although alarmingly advisable. This contract would significantly reduce the risk of any ambiguity that might arise in the future due to potential disagreements or miscommunications.

Before going ahead and drafting the Suppliers Contract, ensure the other party has all the necessary permissions to undertake the task. In case of a supplier, the necessary permission would include all the integral documentation related to transportation as legally required by the law.

Through Supplier Contract, both parties are made aware of each other’s obligations, rights and consequences of the breach which is why the contract is of paramount importance.

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The contract must dedicate a section for performance security. Performance security is a financial guarantee that ensures committed compliance from the supplier’s side. The contract shall disclose all the details of and related to packaging including the precautions taken to ensure safe transportation. Along with the aforementioned clauses, specific clauses customised as per the requirements of the parties are to be incorporated to complete the contract.

Before drafting a Supplier contract

The Supplier Contract has to be detailed and customised to protect your interest, make sure you clear any doubts before committing to paper.

Be sure to ask about any underlying problems and maintain a record of all the assurances given.

In case of delay in delivery or failure to meet the agreed standard, should penalties be imposed? And if so, how much?

Consider including an exit clause so if either party is dissatisfied with the other, they can exit the contract.

Negotiating points

A couple of points you need to consider while negotiating with the supplier before drawing the final contract in order for you to get the best deal:

Quality standards
Maintenance terms
After-care
Payment conditions
Insurance
Delivery time
Value for money
Cost

SLAs (Service Level Agreements)

Service Level Agreement is a contract between service provider and the customer that describes the level of service expectations that a customer has from the supplier. There are three types of SLAs and they are as follows:

Customer service-level agreement
Internal service-level agreement
Multilevel service-level agreement

SLAs are important as they establish a scope of the services covered, performance metrics including response time and resolution time and penalties for breach or exclusions.

When you consider an SLA, choose fair metrics. This would involve the agreement reflecting factors within the service provider’s control. In other words, to penalise the service provider for the fault or inaccuracy of the customer would be observed as unjustifiable.

Supplier management

Supplier Management is a process involving selection, evaluation, identification and management of a supplier. This process aids in ensuring the suppliers are providing maximum value for the business. Effective supplier management establishes policies to govern the suppliers, manages the supplier’s performance, maintains record and information, negotiates with the suppliers and ensures religious compliance.

Benefits of supplier management

Owing to the complexities of the business, it gets challenging to manage suppliers, considering there are a myriad of factors to keep track of. This is where the supplier management comes into picture.

Save more and yet no compromise on quality

Supplier management practices enable cost saving methods while keeping the quality in check.

Performance evaluation

The management maintains records of the suppliers highlighting their performance, which would also help in identifying ways to improve strategies.

Transparent transaction

Effective supplier management enables transparency in all aspects including but not limited to the supplier’s engagement, accounts and performance.

Mitigating risk

Another supplier management benefit, the risks arising out of an undesirable event is narrowed.

Supplier management process

In a nutshell, the process of supplier management process is as under:

Set objectives;
Establish criteria for choosing suppliers;
Evaluate selection of suppliers;
Negotiate;
Supplier’s performance evaluation.

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Some of the standard clauses covered under the Suppliers Contract among others are as follows:

Names of both the parties;
Address and communication details of both the parties;
Definition of products or services;
Obligations and responsibilities;
Terms and conditions;
Pricing and payments;
Breach and its consequences;
Confidentiality;
Term and termination;
Representations and Warranties;
Force Majeure;
Dispute resolution;
Signature

Sample clauses for reference

Performance security

The suppliers shall furnish a performance security in the amount equivalent to ____ (mentioned in figures and words) to be issued by a reputable bank or company.
The amount mentioned under this clause shall not be construed as the limit to the supplier’s liability in the event of a breach of contract by the supplier.

Force Majeure

Neither party will be liable for delay in performance or failure to perform of the contractual obligations contained under this agreement, if such a delay or failure is the result of an event caused by Force Majeure situation such as natural disaster, military action or any other event that is beyond the control of either party.

Notice

All notices and other communications under this agreement shall be made in writing and delivered by registered post and shall also be sent by e-mail at the addresses as mentioned under this agreement. In the event of Force Majeure, the party shall give immediate notice in writing to the other party mentioning the cause for delay or failure of performance.

Independent contractor

The supplier shall comply with the terms of this Agreement as an independent contractor and shall not, under any circumstances assume any other relationship including but not limited to partnership, employee, representative or agent.

Severability

If any clause of the Agreement is found to be invalid or unenforceable, that clause will be severed and the remainder of the Agreement shall remain in force.

Template

This agreement (the “Agreement”) is made on _____ day of _____, _____ (“Effective Date”) by and between:

_________, a company incorporated under the laws of ____, having its registered office at _____________________________, hereinafter referred to as “Buyer”;

AND

_________, a company incorporated under the law of __________, having its registered office at___________________, hereinafter referred to as “Supplier”.

The Buyer and the Supplier will be referred individually as “Party” and collectively as “Parties”

WHEREAS the Buyer desires to acquire the supply of the Products defined under Schedule 1 and the Supplier wishes to supply and deliver such products to the Buyer.

NOW THEREFORE, in consideration of the premises and mutual covenants contained under this Agreement, and other good and valuable considerations, the Parties agree to the following:

SUPPLY OF PRODUCTS

As per the Agreement, during the term mentioned herein under and any extension hereof, the Supplier shall supply the products as set out in Schedule 2 to the Buyer and Buyer shall buy from the Supplier such Products on a non-exclusive basis.

ORDERS

Every sale between the Parties shall be evident by an order placed by the Buyer to Seller in accordance with the terms and conditions of this Agreement and the Supplier shall accept such order or orders in writing within 24 hours working days after receipt of such order.

If the Supplier fails to confirm the order within the time specified, the order shall be deemed to be accepted by the Supplier. Orders shall be placed in writing including, without limitation, by email, fax, and letter.

PRICE

The price of the product shall be as described in schedule 3.

INVOICING AND PAYMENT

The Buyer shall make the payment to the Supplier within 30 days of receipt of invoice.

DELIVERY

The date for delivery and minimum delivery time shall be as specified while placing the order. If the Supplier delays any delivery of Products, the Buyer shall be well within his rights to cancel the order of such Products at any time before delivery.

RISK OF LOSS

The Buyer shall assume all risk of damage or loss except for any damage or loss caused due to the negligence of the Supplier. Insurance and transportation charges shall be paid by the Buyer.

FORCE MAJEURE

A Party shall not be held liable for delay or failure to perform the contractual obligations under this Agreement in the event of Force Majeure situation such as natural disasters, war, accident or any other situation that is beyond the control of the Party.

TERM AND TERMINATION

This Agreement shall come into effect on the date as mentioned above and shall remain in force for a period of two (2) years.

This Agreement may be terminated by either party at any time by providing a written notice with immediate effect in the event of;
bankruptcy or insolvency instituted by or against the other party or a receiver, trustee or liquidator is appointed in respect of any part of the other party’s assets or any similar relief is granted under any applicable bankruptcy or equivalent law;

The defaulting party shall be in breach or non-performance of any of its obligations in this Agreement and does not remedy the same within 7 days of notice of such failure by the other party (the non-defaulting party).

INDEPENDENT CONTRACTOR

The supplier is an independent contractor and shall not, under any circumstances, the supplier or its employees, assume any other relationship including but not limited to partnership, employee, representative or agent.

NOTICE

All notices, requests, demands and other communications shall be in writing, in the English language and shall be sent to the address mentioned in this Agreement.

SEVERABILITY

If any provision contained under this Agreement is deemed invalid or unenforceable by any competent court, such determination shall not affect the validity or enforceability of the remaining provisions of the Agreement.

WARRANTIES

The Supplier warrants that the Products shall conform to the technical and quality standard and specifications as set out in Schedule 4 hereto;

The Supplier warrants that the Product is safe and free from any defect in manufacturing or material;

The Supplier warrants that the Product corresponds strictly with any and all representations, descriptions, advertisements, brochures, drawings, specifications and samples made or given by Supplier.

The Buyer and the Supplier have executed this Agreement at the date as mentioned above

Buyer Supplier

______________________ ______________________

Name: Name:

Title: Title:

Date: Date:

FAQs

Can I come to an oral agreement with my supplier?

In most cases, an oral agreement is legally binding. But to avoid any dispute and to leave no room for presumptions, it is highly advisable to draw a written document.

Do I need a lawyer to draw the contract?

This may seem like going out the extra mile, but it is only fitting. A lawyer will make sure the contract has you covered and hence it is wise to consult a lawyer.

Will I be able to terminate the contract?

If the supplier is responsible for breach of any or all provisions of the contract or if you are not satisfied with the supplier’s performance, terminating the contract becomes black or white.

What if the supplier refuses to execute a contract?

After making sure the terms of the contract are fair, if the supplier still refuses to sign the contract, it stimulates lack of confidence in the supplier’s ability to perform the assigned task. It would be advisable to explore other options.

Conclusion

A Suppliers’ Contract or a Suppliers’ Agreement is an arrangement between the buyer and the supplier for the delivery of goods or services. The contract includes clauses customized according to the requirements of the parties. Acknowledging the complex nature of businesses and understanding the importance of having an uninterrupted supply chain, the need of supplier management springs up. Supplier management ensures maximum value for money from the suppliers. Consider involving a legal mind while drawing the Suppliers Contract. This will ensure the agreement has you covered.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Legal analysis of the blockchain merger of Polygon and Hermez and the applicability of smart contracts & cryptocurrency in M&A

Oishika Banerji

September 19, 2021

This article has been written by Danie Joseph pursuing the Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from LawSikho.

Table of Contents

Introduction

The year 2021 despite the ongoing pandemic, has seen the resurgence of cryptocurrency and blockchain technology. The potential behind the technology has been inculcated in various facets of business such as finance, supply chain management, insurance, intellectual property security. In India, it is yet to see a regulatory stance on cryptocurrency which is the medium of currency for transactions within the blockchain. Considering the data from various crypto exchanges, there is approximately 15,000 crore worth of cryptocurrencies held within 1.5 crore Indians and the presence of about 300+ startups operating within the blockchain and crypto space which would likely tilt the regulatory implications in favor of the new age technology. Cryptocurrency and blockchain technology have entered their way into the field of mergers and acquisitions as well. Blockchain is seen as the medium to transact in a more secure, transparent, and auditable manner.

This technology is continually being integrated into various aspects. It has evidently been seen in the first merger between two blockchain networks known as Polygon and Hermez. It serves as a precedent for the various transactions and deals that are to be undertaken with the use of the technology. The article seeks to emphasize the various aspects that were considered during the merger between two blockchain networks and also suggestions for implementation of the technology via smart contracts, cryptocurrency to smoothen the process of M&A in the near future.

In August 2021, it observed the first blockchain acquisition of Hermez into the Polygon ecosystem. The article analyses the various intricacies of an M&A deal conducted between blockchains and also looks to highlight the potential of blockchain technology and cryptocurrency in refining the transaction procedure.

The legal implication of the merger

Polygon formerly known as MATIC is an Ethreuem scalability platform. It helps solve some of the challenges faced while conducting transactions in the blockchain such as large amounts of fees, lackluster user experience, and low volume of transactions per second. Polygon owes its origin to four software engineers from India. Polygon has entered new avenues within the blockchain space, such as DApps (Decentralized Applications), DeFi (Decentralised Finance), NFT’s (Non-Fungible Tokens), DAO’s (Decentralized Autonomous Organizations). Polygon’s currency known as Matic has a market capitalization of over $9 billion and is considered as one of the top twenty currencies as per market cap.

Furthermore, Polygon has also gained popularity since the recent investment backing of billionaire investor Mark Cuban. On the other hand, Hermez the other party to the merger is an open-source Zero-Knowledge Rollup (ZK Rollup) that uses mathematical algorithms to verify and settle transactions within the Ethereum platform. Hermez uses the rollups process, which is the industry preferred scaling strategy, and attributing to its decentralized nature it is considered a user favorite. Hermez holds the HEZ token which is its utility currency within its platform.

The Merger

The primary purpose of an M&A is to attain synergy and growth. The business looks out for companies that allow synergy between each other, complement its strengths, and mitigate its weaknesses. Both companies usually look for a win-win situation. Furthermore, M&A serves as a key for a company to enlarge its market share and also venture into new horizons through the attainment of advanced technology and professional personnel.

All the major units of the Hermez scaling technology and the HEZ token will be integrated with Polygon. This would have consisted of transferring all of the IP-related components, if any, and also the skill and intellectual prowess of the employees of Hermez along with the goodwill. It would also be rebranded as Polygon Hermez.

The Polygon network emerged as a platform that enabled the building up of multiple types of applications that were cost-effective, modular, and user friendly. Polygon’s scaling method known as Plasma creates a single transaction per transfer however with ZK Rollups (Zero-Knowledge rollup) allows the processing of multiple transfers into a single transaction. Taking into consideration the zero-knowledge scaling technology Hermez deals in, the intention of Polygon behind the merger can be reasonably assumed.

By acquiring Hermez, it allows access to newer technologies that cannot be obtained otherwise and establishes synergy within all its scaling solutions. By leveraging Hermes’ scaling solution it would procure an advanced form of technology and employ a high standard of security in the transactions which would consequently solidify its position within the Polygon ecosystem and ensure the retention of its users on the platform. With the finalization of the merger, the entity will operate as Polygon Hermez. This will add to the suite of Polygon’s applications such as Polygon PoS, Polygon SDK, Polygon Avail. The collection of various solutions and technical capacity under one umbrella will allow Polygon to tap into various revenue streams to realize its future growth prospects.

The amount of consideration exchanged in pursuance of this transaction was to be reported to amount to 250 million Matic tokens (estimated $250 million) as of 4th August 2021. It also included that Hez token holders would be enabled the facility via a swapping contract to swap the tokens for Polygon’s native token. The ratio for the swap is announced to be 3.5 Matic:1 as per the USD value of both tokens indicated on BitFinex. It has been agreed that Matic will remain as the utility currency in Polygon Hermez.

Future of Blockchains with M&A

The Polygon-Hermez merger sets a precedent as one of the first mergers between two blockchain networks. From a prospective outlook, the technology behind blockchain and cryptocurrency has clear intrinsic potential to streamline the tedious process in conventional M&A. In the Blockchain database, each network user represents a node. Every node validates the transmission of data and as each block is cryptographically connected, it provides maximum security to sensitive information and protects it from hacker attacks. Additionally, the chronological and permanent sequencing of data improves transparency. Therefore blockchain provides value in the form of security and transparency.

Due diligence – The due diligence process could utilize blockchain technology by providing verified and permanent records of all the data that is disclosed by both parties during the due diligence process. This information serves as a permanent record in the post-merger interaction or in the event of any disputes that arise related to the information disclosed during due diligence.

Smart Contracts – Smart contracts can be utilized to automate the various processes in M&A. Utilizing smart contracts to automate transactions on the happening of certain events or when obligations are met can increase the level of trust between the parties and reduce incurring any unforeseen or hidden liabilities. Similarly, it could be employed to earn-out payment agreements. Earnouts are mechanisms used in a contract that facilitate payments dependent on a contingent event (e.g. financial benchmark agreed between both parties). Such types of agreements are prominent, evident during the pandemic, attributing to the volatility of the markets and the economy resulting in riskier commercial transactions. Such smart contracts could be designed for instance, where one party to the transaction receives the remainder of the consideration only in the event of a favorable decision regarding a legal suit to which it is a party.

Crypto-currency – Despite it not being recognized as a legal tender in most countries, there is a large number of high-volume transactions which are undertaken with various cryptocurrencies as a form of consideration. In addition to this, it is an efficient method of transferring huge amounts of value in a matter of seconds without the involvement of any financial institution or intermediary. Coupled with the fact that large amounts of cryptocurrency are being held within retail investors and financial institutions it is a matter of time that deals are undertaken with the use of currency.

This is evident as per reports stating that the value of M&A in the crypto sector doubled by more than $1.1 billion. However, a problem arises due to the gap between when a deal is announced and its closing date as it contains an element of price uncertainty of the currency due to the significant fluctuation in exchanges. This could be solved by establishing a cap and floor price which indicates a bracket within which the value could fluctuate within the agreement between both parties.

Intellectual Property Rights –

Utilizing the blockchain technology would enable to record data within a distributed ledger in a chronological manner showcasing the date of registrations, licensing of trademark or patent, etc. It would resolve the inconvenience of collecting and storing such evidence physically. An ideal circumstance would be where an original design is uploaded to a blockchain which will entail the creation of a time-stamped record and serves as proof of evidence of conception, qualification requirements, and status. This facility to keep track of the entire life cycle of a right would also smoothen the due diligence processes necessary for IP transactions e.g. Transfer of IP in cases of mergers and acquisitions.

Conclusion

Initially, The Internet came with public uncertainty and criticism and today, it has been integrated into every aspect of our lives, this analogy would serve similar to the technology behind blockchain and cryptocurrency. Despite it being at an unrefined stage, it contains the intrinsic value to be integrated into various aspects including deal-making and transactions. Blockchains technology can enable cross-border payments, trade finance, taxation with various advantages as discussed earlier. It serves as the database to enable higher accuracy and efficiency in terms of time and cost especially for M&A. This technology is considered to be at its infancy and is constantly evolving. It will require the contribution of businesses of various industries to define the design, implementation, and enforcement of the platform and the government to set the regulatory implications. A combined effort will be required in order to harness its potential.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

India’s public health policy : pre-pandemic and during the pandemic

Sneha Mahawar

September 19, 2021

This article has been written by Manya Dudeja, a student of the University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University. This article reviews the public health policy of India in a time when health has become a luxury and institutions of public health are in a crisis.

Table of Contents

Introduction

“Covid-19 provides a stark reminder of the tremendous social value of robust public health systems and the harrowing consequences when those capabilities are allowed to atrophy.”

– National Academy of Medicine

Society has collectively worn the veil of ignorance on the importance of an efficient public health policy. With the collapse of the healthcare system or rather the shattering of the veil, this ignorance stormed us in the form of the Covid pandemic. Thousands have been rendered helpless in the absence of resources. There is a lack of adequate policies in place to protect the poor and the most deprived. If only the electorate demanded accountability on a public health policy, we would have steered through this chaos better. Hence this is what brings me to write this article, it is high time we understand the public health policy of our country and make amendments to nurture a healthy population.

This article will be divided into two parts, the first part will be dealing with public health policy in the pre-pandemic era and its unequal access to the population, and the second part will be dealing with the ravages of the pandemic and the collective helplessness of the community due to inadequate health policies.

Pre-pandemic public health policies in India

The right to a healthy life is a fundamental right granted by Article 21 of the Indian Constitution. Yet, India’s expenditure on public health has been dismally low. India spends only 3.54 percent of its GDP on health expenditure. Public health in India is governed by the National Health Policy, 2017, prepared by the Ministry of Health and Family Welfare. Though health is a subject in the State list and different states have different policies regarding the same, here we will be looking at the Central Health Policy of India. The policy aims to strengthen, prioritize and clarify the role of the government in public health through organizing healthcare services, preventing the spread of diseases, and promoting good health. It will strive to improve access to technology, develop human resources, encourage medical pluralism, build a knowledge base, work on strategies of financial protection and strengthen regulation and health assurance.

National Health Policy, 2017: overview and analysis

“A policy is only as good as its implementation.”

The National Health Policy, 2017 concludes with the above quote. No matter how well a policy document may be drafted, its ultimate success comes from its effective implementation.

While the National Health Policy sets for itself various numeric and general goals like increasing the government expenditure on health from the existing 1.15 percent to 2.5 percent of the GDP and increasing the life expectancy at birth from 67.5 to 70 by 2025, bottlenecks like inadequate facilities, lack of infrastructure, coverage, access, and quality will continue to haunt it.
This ambitious policy aims to have the private sector as a partner to fill the gaps and provide quality and affordable healthcare services for all, furthering the agenda of universal health coverage.
The new policy also emphasizes more on prevention of diseases as well as early screening and diagnosis. Prevention will be focused on by using methods like sanitation and discouraging the consumption of tobacco to ensure a healthy population.
The Make in India initiative would be used to boost the production of drugs in India.
The use of health care to provide free services to families is a welcome step too.
The policy also promotes alternate means of medical care, for example, AYUSH.
While the policy has brought hope for some, others find it to be inadequate and have called it a low bar for improving public health.

Criticism

There is criticism based on the policy’s financial feasibility. They are as follows:

Even though the policy proposes to strengthen existing medical colleges and converting district hospitals to new medical colleges to increase the number of healthcare professionals and specialists, the policy does not spell out the source for these funds.
The policy does not comply with the demands made to include the right to primary healthcare as a fundamental right and talks about the availability of adequate infrastructural facilities as a precondition to making it a right.
The policy does not put forward any provision to deal with the problem of quacks and malicious people acting as self-styled doctors.

Public health policy of India during the pandemic

The pandemic has caught India unprepared. Despite the devastation caused by the first wave and the warnings of a second wave, adequate steps were not taken to deal with it. At this point, India had to make a number of decisions regarding its public health policy such as vaccinating a large population and increasing the number of healthcare facilities. The following sub-headings would explain the country’s response to the healthcare crises during the Covid pandemic.

Vision 2035: Public health surveillance in India

Visions 2035 is the white paper released by the NITI Ayog in order to strengthen the public health surveillance system in India. It aims at:

Making India’s public health system more responsive as well as more predictive, to strengthen preparedness to take action at the various levels.
Enabling a client-feedback mechanism as well as creating a system that is citizen-friendly and protects their privacy and confidentiality.
Improving data-sharing system between the Centre and state, for better disease detection, prevention, and control.
It also sets a goal for India to become a leader, regionally and globally, to manage such events that constitute a public health emergency at the international level.

The Covid-19 pandemic led the government to revisit the spread of diseases caused due to interaction between humans and animals. The white paper emphasizes the importance of an integrated public health system across primary, secondary, and tertiary levels of care in order to break the chain of transmission and create a resilient surveillance system. In order to conduct this surveillance, individual health cards would be used and thereby making India a global leader in the area of health surveillance.

Collapse of infrastructure

The small number of healthcare workers in India has been overworked and exhausted. In the absence of resources, they are forced to choose between lives and decide who gets to live. Life-saving drugs, oxygen cylinders, and hospital beds became a luxury and people died as a result of this scarcity. While the government created makeshift hospitals and camps, they were soon out of space too. Also, the process to be followed that required referral from the DSO (District Surveillance Officer) and other approvals before a patient could get in a Covid facility was extensive, as a result of this, many died waiting for a bed.

India’s vaccine policy

Mass vaccinating India’s huge population efficiently and timely has been seen as the only solution to tackle the spread of Covid 19. However, amid a shortage of vaccines and fund-deprived state governments, this has come as a huge challenge. Initially, the Government of India approved two vaccines for emergency use, Covishield, and Covaxin. The vaccine was to be administered only to those above the age of 45 and those who had any comorbidities (when someone has more than one health issue at a particular time, each health condition is referred to as comorbidity). The exclusion of the young did not serve well for the country as the virus kept spreading rapidly. In the next phase, the vaccine has been opened up for those above 18 years of age and they are being encouraged to get vaccinated by registering through the CoWIN app. This again became a fight for limited slots as the vaccine was scarce. Many even questioned the use of an online application which alienated those who did not have access to smartphones or were not digitally literate. However, walk-in vaccination has now been permitted by the Union government. Also, approvals for other vaccines like Sputnik and Pfizer are also on and efforts are being made to start their manufacturing in India. The Centre has allowed vaccine companies to strike deals with states and private hospitals. This move threatens to create regional divides as some states have more paying capacity than others. The Supreme Court of India also expressed its dissatisfaction with the vaccine policy, making states compete with each other to procure vaccines. It also questioned the dual pricing policy where the Centre has already negotiated the prices for the vaccine and has left the states to make their own deals and the reason for leaving pricing of 50 percent of vaccines with the manufacturer. The Court rebuked the government for not having a policy document regarding this and directed it to produce the files.

Judicial intervention

During this time of crisis, courts have actively intervened and directed the government to address the grievances of people who are struggling to get resources like oxygen, medicines, vaccines, and beds in hospitals. Recently, the Delhi High Court pulled up the Central Government for playing the “irritating” message during phone calls, asking people to get vaccinated while there are not enough doses available with the government. The court also directed the government to devise strategies and to use audio-visual aid to effectively disseminate Covid related information to the people.

Lessons learned

Along with the devastation and destruction of life that Covid brought, it also brought some lessons for the public health system of the country and the governments that have been sleeping on the need for an effective and robust public health mechanism.

It taught us the value of the old and famous but ignored proverb, “health is wealth”. Even though the most important, the health sector of the country has been often neglected with low budgetary expenditure allocation. Investing in health infrastructure has become the need of the hour today. The health system of India was never great, it always had issues, however, privilege hid these issues. It was only the poor who had to face the brunt of inadequate healthcare facilities because of their inability to afford private and expensive healthcare. The pandemic did not discriminate and privilege failed. The system was so overburdened that money could not get one a hospital bed or an essential drug. India needs to massively restructure its developmental plans with respect to health. It is hoped that this painful lesson paves the way for India’s future policy decisions which should be health-centric and efficient, ready to deal with such pandemics and disasters.

Conclusion

Public health is an important arena of governance and requires the government’s attention. Its long neglect has proved to be fatal for the country. The Covid pandemic is a 21st-century health crisis and will not leave the world easy. The government needs to ramp up its health facilities and infrastructure in the post-pandemic era, not only to stay prepared for future health emergencies like this but also to start valuing human life more. The National Health Policy, 2017 laid down goals and ambitions to improve the health conditions and facilities in India, but the policy implementation has been slow and laid back. Because of this India was not ready to face the wrath of the pandemic and fell to its knees. India should learn from this mistake and bring out a health policy that does not just lay down provisions but also focuses on a strategy for effective implementation. Globally, health systems have collapsed and made the world realize the importance of investing in the health sector.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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Law of evidence and the rule of law: an analysis

Sneha Mahawar

September 19, 2021

This article is written by Varchaswa Dubey from JECRC University, Jaipur. This article is an exhaustive work on the Law of evidence and rule of law and the connection between them.

Table of Contents

Introduction

Every court of law, which is unbiased, operates on the availability of evidence present in front and thereafter punishes the accused if the guilt is proved beyond a reasonable doubt. The law of evidence is that branch of law that deals with proving the alleged offences, usually by the prosecution in criminal cases.

Rule of law is the ultimate authority on the land which acts as a guardian for the society and the laws governing society. The principle of rule of law is to safeguard citizens and prevent any discrimination or violation of rights of the citizens by authority or any legislation enacted by the law-making authorities.

Law of evidence – the concept

According to Black’s Law dictionary, evidence refers to “Any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, etc., to induce belief in the minds of the court or jury as to their contention.”

Law of evidence is the principle that brings home the guilt of the accused in criminal cases and provides rights and remedies to the plaintiff in civil matters. The law of evidence includes documents, statements, eye-witnesses, etc. which support the allegations made by either party to the legal proceedings to convert the allegation into a fact.

Origin of the law of evidence

Hindu period

The origin of the law of evidence can be traced back to ancient India under ‘Hindu Dharmashastras’ where the objective was to unearth the truth. Under the traditional system, the judge must find out the truth by using his knowledge and skills to the evidence presented to him.

The Hindu law recognized three types of shreds of evidence, ‘Lekhya’, ‘Sakshi’, and ‘Bhukhti’:

‘Lekhaya’ was referred to the document which was written by the parties themselves in the court of the king,
‘Sakshi’ was referred to the witnesses, and it was the duty of the judge to determine the truth after observing the behaviour of witnesses,
‘Bhukhti’ was referred to as possession of the property.

Muslim period

Later during the reign of Muslims, the law of evidence became more advanced and modern. Under Muslim law, human actions were assumed to be morally indifferent, and express evidence was required to declare a particular act prohibited or obligatory. The Muslim law did not consist of any concept but the concept of justice, which is also considered an attribute of god according to al – Quran.

Muslim laws did not apply to non-muslims, especially Hindus, and all the personal affairs of non-muslims were settled by their respective religious laws. The Muslims also introduced the concept of ‘Vakils’, i.e. lawyers who used to act in good faith and were paid by the state.

British period

The First Law Commission, chaired by Lord T.B. Macually was constituted in the year 1833 to codify personal laws, civil and criminal laws, and laws of non-Hindus and non-muslims. The Third Law Commission, appointed under the chairmanship of Lord Romilly, was constituted to prepare substantive law for India and as a consequence, the committee submitted 7 reports, one of them being the “Evidence Bill”, but it was rejected on the grounds of being unsuitable to Indian conditions.

The contemporary Indian evidence law was inherited by the British rule in India and one such legislation was the law of evidence which was enacted on 12 March 1872, when a bill drafted by James Fitzjames Stephen was considered by 13 members of the Viceroy’s Legislative Council. The Bill was enforced on 1st September 1872 as The Indian Evidence Act, 1872.

Objectives of the law of evidence

The objectives of law of evidence:

It creates reliability, by unearthing the truth of the case,
It eliminates the illegally obtained evidence, and provides with the right to a fair trial,
It protects the witnesses and parties of a case from any type of violation of rights or discrimination as evidence is only accepted after both the parties have seen/heard it,
It does not take into consideration all types of evidence, because irrelevant evidence is inadmissible in court, therefore saving time and resources of the court,
It aims at fairness as it entertains both the party to a case, therefore promoting non-discrimination and justice,
It promotes transparency as any evidence presented by the victim or the defendant is made available to the court and is kept in the record book.

Rule of law – the concept

The doctrine of rule of law only acknowledges the supremacy of law, and that law is the only guardian of society. Rule of law restricts the vague and immoral decisions of the administration and is considered an essential factor of society by most nations. Under rule of law, even if there is a representative or ruler, the land will only be governed by the established law and the ruler or administration is also under an obligation to follow rule of law.

Origin of the rule of law

The principles of rule of law can be traced back to the Indian philosophy of Dharma where moral authority was considered to be the rule of law. The Upanishads also consist of theories of rule of law which states that “law is the king of the kinds” and no one is higher than the law, not even the king. Chanakya was of the similar opinion that kings must also be governed by the rule of law.

The other origins of rule of law are believed to be given by Aristotle during the 4th Century B.C. when he distinguished “the rule of law” from “that of any individual”. Plato, (c. 428–347 B.C.) in his work concerning law said, “if the law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.”

Under English Law, Edward Coke is believed to be the first to give the concept of rule of law when he stated that even a king shall be under God and law. The Magna Carta of 1215, issued by King John of England, was responsible for imposing the rule of law on everybody including the King.

India has inherited most of the legal principles from English law and therefore, the contemporary rule of law in India is a consequence of the inheritance of laws from the British.

Principles of rule of law

According to Prof. Dicey, rules of law contains three principles:

Supremacy of Law

It refers to the dominance of law and the prevalence of law. According to him, the Englishmen were also governed by rule of law. The concept of rule of law believes in absence of arbitrariness and wide discretion of powers of the ruler, and that the government must also work under the law and not the law under the government

Equality before Law

It refers to the equal protection and application of laws to every member of the society and there shall be no discrimination by the government in safeguarding the rights of the people.

The predominance of Legal Spirit

It refers to not only giving the fundamental or human rights to the people of the society by the government but enforcing such rights in the society and every action of the state must be backed by rule of law.

The Indian scenario

India has inherited the doctrine of rule of law by the British common law, which was incorporated in the Constitution of India, by the founding fathers of the Constitution, who made the constitution to be the supreme law of the land. The Constitution of India consists of legal provisions which prevail over all the three pillars of democracy, i.e. legislative, executive, and the judiciary. All of them are governed by the rule of law and if anyone violates the provisions of the constitution, such acts shall stand ultra vires. The preamble and Part III of the Constitution of India also reflect the established rule of law.

According to Article 13 of the Constitution of India, any law which is in contravention to Part III, i.e. the fundamental rights, shall stand void and still if a citizen of India is of the view that his/her fundamental rights are being violated by any Act/legislation then such aggrieved person has the right to reach High Court or Supreme Court of India under Article 226 and Article 32 of the Constitution of India, respectively.

Under the Constitution of India, the judiciary is the primary guardian of the rule of law and if any Act or legislation is found to be contrary to the Part III of the Constitution, the judiciary has every right to strike down such legislation after undertaking the due process of law.

Conflict of the law of evidence and rule of law

It can be argued that the law of evidence must be free to depart from the rule of law as understood since it is one of the aspects of the procedural law and particularly of procedure at trial, that nothing must be lost by merely allowing the parties to the case to present any kind of evidence they desire, and eventually, it is left on the wisdom of the court to determine the accountability of the parties, with the assistance of personal experience of seeing the witnesses during the trial and when such witness is examined or cross-examined by the officer of the courts.

On one hand, it is the rule of law that no one should go unheard during a trial while on the other hand, it is also pertinent to note that while leaving the admissibility on the wisdom of the court may cause miscarriage to justice since, the presiding judicial officer may emphasize on evidence more than rule of law, which is, to punish a person only when his guilt is proved beyond a reasonable doubt.

The absence of clear rules for the judges will encourage elongated arguments for, or against the admissibility of particular evidence, which may eventually lead to either inadmissibility of the evidence or such evidence may cause benefit to the wrongdoer.

The connection of rule of law and law of evidence

According to Thayer, the law of evidence may be an illogical piece, but by no means irrational patchwork. The procedural law is directly responsible to safeguard the rule of law because the law of evidence not only protects the unprivileged but also maintains all the principles which are similar to that of rule of law.

The law of evidence was enacted to maintain the rule of law as the principles of rule of law, i.e. equality before the law, the supremacy of law, and the predominance of legal spirit are reflected in evidence laws.

The rule of law is superior to the law of evidence because the law of evidence is amendable, interpretable, and operates on the wisdom and understanding of the judges, witnesses, and the circumstances surrounding the case; however, rule of law on the other hand is absolute and cannot be amended.

The rule of law is the ultimate guardian of society and to uphold the position of rule of law, the law of evidence prevails, so that every wrongdoer can be punished and justice prevails in the society. Law of evidence can certainly maintain the rule of law because the legislation of evidence punishes the guilty and bestows justice to the victim, and this is the ultimate aim of rule of law.

Law of evidence goes hand in hand with rule of law since rule of law is also concerned with the betterment of the society and society will only prosper when the law of evidence incarcerates bad elements of the society.

Conclusion

It is well settled legal jurisprudence that rule of law prevails as the ultimate law of the land and to maintain the position of rule of law, the piece of evidence presented in the court of law are essential since the law of evidence imprisons the wrongdoer, the justice prospers and constant justice is the ultimate aim of rule of law. The rule of law and the law of evidence are essential to each other as the law of evidence is the defender of the rule of law and the rule of law may not be as effective without the law of evidence as it is with the presence of the law of evidence.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

All you need to know about racial differences in India

Sneha Mahawar

September 19, 2021

This article is written by Anusha Misra from NALSAR University of Law. This article looks into racial differences that arise through public laws.

Table of Contents

Introduction

Equality is not a specific term. It means nothing unless it is applied to a specific context. Hence in the political context equality amounts to equal treatment under the law and equal access to public office. Race on the other hand is a social construct. In the biological sense, the race has no meaning but society continues to back the notion by terming race as a social category. India is a land of multiplicity yet all ethnicities are not treated equally. Racism, prejudices, and hate crimes stem from stereotypical beliefs that the majority holds. Lack of awareness and less exposure to different cultures significantly impacts how people of different orientations get along. Racism as an ideology has not been formally recognised by the governments. However unfortunate events have added fuel to fire and have led to protests seeking justice against racism. These movements need to be recognised at the grass-root level to be empowered.

Racial differences: the growing concern

Racial differences in India have been on the rise recently. Listed below are the reasons why racism is so prevalent in India.

Racism due to the concept of an out-group

Different countries have different tangents concerning being more tolerant racially. In most countries people are more self-indulgent and individual identity is given primacy over group identity. In India, after independence, not many people from different nationalities have settled here. Thus, the interactions of Indians with people from other nationalities are limited. The foreigners living in India are thought to be outsiders who do not exist within the Indian strata. This often leads to hostility and xenophobia towards foreigners.

Racism as an act of retribution

Indians are often discriminated against in other countries. Moreover, stereotypes against Indians make matters worse. Thus, leads to a sense of insecurity and also leads people to be infuriated.

Racism due to diversity in identity

Racism as a practice in India is also prevalent amongst Indian communities. Due to a variance in regional diversity, many communities are pitted against each other. There have been many instances where North-East Indians have been discriminated against by the rest of the Indians.

Racism due to lack of sensitisation

Due to the lack of sensitisation people are not able to overcome their mindset or their prejudices. They are given no push in the right direction, that is the direction towards changing and overcoming their inherent bias. In addition to that, the government has not put in place a framework that prevents racial intolerance in India.

Racism in eastern countries as opposed to racism in western countries

Racism as a concept does not stem from the Indian psyche. However, no nation is close to achieving a utopia wherein the citizens behave ideally. The fact that a society’s conduct amounts to or does not amount to racism can be decided only by consciousness amongst the masses on a collective level. The concept of the ‘Other’ stems from Western civilization.

The history of India and the psychology of India’s masses have remained stagnant since time immemorial. During the freedom struggle, movement leaders initiated a secularised struggle against the colonial rulers however there was no apparent xenophobia. Indians did not seem to have a problem when George Yule and William Wedderburn were appointed as the president of the Indian National Congress (INC) even though they were westerners.

Historically India was not averse to people of different races or creeds. However, of late there has been a rise in racial differences.

Public Law – how one perceives them

Public law refers to the law that governs relations between citizens and a government, between distinct institutions present in a state, between different branches of governments, and relations between citizens. Public law consists of administrative law, constitutional law, criminal law, tax law, and procedural law.

Laws that treat one set of people differently from others need not always be unconstitutional. Legal discrimination as a concept is not foreign concerning governance. For example, in many states, one must be eighteen years or older to smoke cigarettes and twenty-one and older to drink alcohol. Thus, such laws discriminate against the young.

Highlighting the lost purpose of Public Law

To understand the lost purpose of the law, the author aims to establish so by giving primacy to North-East Indians.

It has additionally been contended that North Eastern Citizens can look for assurance under SC/ST (Prevention of Atrocities) Act, 1989, Article 14 and 15 of the Indian Constitution and Section 153-A of Indian Penal Code, 1860. However, first and foremost, not all North-Eastern residents are individuals from the Scheduled Caste and Scheduled Tribes Community, in this manner; they fall outside the domain of the SC/ST Act, 1989. At the point when we take a look at the Statistics of North Eastern Region delivered by the Government, we find that extent of SC and ST to add up to populace in Sikkim is 4.6% and 33.8% individually; for Assam, it is 7.5% and 12.4%; for Manipur, it is 3.8% and 35.1%. Besides, as seen by the Bezbaruah Committee, while there are numerous laws, there is nobody’s exact law that covers the kind of occurrences they are presented to. As per the Committee, in the short run, changes to IPC ought to be made, for example, Use of criminal power against individuals of a specific racial beginning and Section 509-A (Word, signal or act expected to affront an individual from a specific racial gathering or of any race), in any case, over the long-haul interest for an Anti-Racial law ought to be discussed. The Committee suggested that such enactment ought to incorporate at any rate these particular arrangements:

1. The offence ought to be cognizable and non-bailable;

2. The examination of the FIR ought to be finished within 60 days by an exceptional cell;

3. The preliminary ought to be finished within 90 days.

A step forward toward this path was the presentation of the Anti-Discrimination and Equality Bill, 2016 by MP Shashi Tharoor. Though this bill didn’t manage racial segregation and included different components like sexual direction, conjugal status also, it merits referencing because of its detail and acknowledgment of the fact that North-Eastern Indians and people of African origin are particularly vulnerable in India.

Possible solutions and what the future awaits

Common human rights ideals are the main antidote to the persistence of racism

The acceptance of universal standards on human rights and fundamental freedoms is a clear register of human progress over the past half-century. That of course does not mean that such standards are everywhere achieved in practice or even believed in by all who exercise governmental power. International law, however, protects against violation and insists that States must provide remedies when such violation occurs. Any form of racism or racial discrimination contradicts these human rights ideals and standards. On a personal level, each of us can demonstrate our commitment to human rights and its core message that we are all equal in rights and human dignity and all unique in our attributes and personality. We can do that by refusing and challenging racist remarks or actions in daily life. We can campaign with others for the implementation of equal treatment laws wherever we live and for the promotion of human rights education. Whether we are members of majorities or minorities, we can learn more about those who are different from us in ethnic origin, religion, language, culture, or nationality.

A considerable research effort is required to acquire the knowledge needed for effective anti-discrimination policies

At the point when governments and different specialists gather populace insights – like birth, passing conjugal status, schooling, wellbeing, or other information – such data should be gathered by reference to nationality, sex, citizenship status, or to different groupings known to be identified with the experience of separation. If there is just a single human race, why name individuals by classes, for example, ‘dark’, ‘white’, ‘mestizos’, ‘Asian’, ‘Bedouin’, ‘outsider’ etc? The inquiry should be posed and to be replied to. One answer may be that in the best of potential universes it is desirable to keep away from such names, at the same time, as a few specialists clarify, without such information it is absurd to expect to know the full idea of the segregation happening in any general public, nor to attempt exploration or devise and screen compelling reactions to it. There must be that as it may, shield during the time spent assembling and utilizing such data. The Durban Program of Action, which embraced the requirement for disaggregated information assortment, properly calls for data to be “gathered with the express assent of the people in question, in light of their self-ID” and steady with common freedoms guidelines securing protection. Yet, to work without disaggregated information is to work in obscurity.

Overcoming the effects of discrimination requires affirmative measures

Equality of opportunities can’t be given exclusively by broad certifications of correspondence of chance and political and social investment or by widespread approaches of admittance to essential administrations like training, medical services, lodging, and business. These are the fundamental establishment of uniformity. International common liberties principles support what are named governmental policy regarding minorities in society arrangements or unique measures, where these are planned rigorously to address imbalances of the past and are for a restricted period. Any such means ought to be delicate to the worries of greater parts, including the individuals who are themselves poor and hindered and who may decipher such arrangements as addressing shamefulness to them. It is conceivable, in any case, to devise social measures and activity that intends to address survivors of chronic rejection from which all addiction is drawn out, not least as far as more effective multicultural and multiracial popularity based social orders. In any case, it ought to be perceived that governmental policy regarding minorities in society can pressure gatherings and people inside bunches as in the present moment there will be champs and failures with such arrangements.

Education

Schooling and the instruction framework are, in the long haul, the imperial street to create an adjustment of perspectives. They are the place where information, learning, and qualities are procured, where insight and pictures are passed on and flourish, and, as needs are, the place where the standards of pluralism and exchange should above all else be immovably ingrained. Intercultural schooling is in this sense a therapy, compelling individual people groups and societies to see themselves, question assurances, destroy obstructions, and break out of their insularity. By a similar token, correspondence, the vehicle for developing and projecting one’s mental self-view and one’s picture of the ‘other’, should similarly be intercultural, to have the option to give substantial expression to the requirement for discourse and trade epitomized in Sean Mac Bride’s splendid articulation “Numerous Voices – One World”.

Conclusion

This future is probably not going to be just about as revolting as the past, because the case for formal isolation and clear racial separation won’t return. It doesn’t simply involve envisioning the annihilation of past types of prejudice. Nor does it mean envisioning a colourblind world. In fact, in the as yet ruling sound judgment of liberal multiculturalism, loaded with its variety drives and affectability preparing, populating the world with an assorted arrangement of entertainers and surprisingly testing suppositions of white advantage is sufficient. Famous movies and visual culture are loaded up with pictures of multiracial perspectives in which race doesn’t make any difference or prejudice has been perceived as a paradox. However, all-around frequently this visual culture— where we regularly go to figure out how to envision the future — recode the presence of variety inside new rationales of racial separation. Envisioning a multiracial future isn’t equivalent to envisioning an antiracist future. Lastly requires testing the advancement of prejudice as it multiplies and changes our very ability to envision what’s to come.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Everything to know about website development and maintenance agreement

Oishika Banerji

September 19, 2021

This article has been written by Aditya Rastogi pursuing the Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

Table of Contents

Introduction

If I were to ask you to help me in drafting an agreement between a website developing company and me so that they can help me in building a website for my business, what would be your first thought? If I were to guess, it would be about consulting an advocate assuming that it would be a complex task.. What if I told you that, even without having any expertise in website designing, development and maintenance domain or the law domain, you can draft an agreement on your own or at least can become capable of negotiating with website developers for it, without appearing ignorant so that they don’t charge you a hefty amount for it!

This article aims to make you understand what is website development and maintenance agreement, why it is so important in the current scenario and what this agreement consists of, so that you can start drafting one yourself for your website.

What is a website development and maintenance agreement?

A Website Development and Maintenance Agreement is a contract between an individual/company/business (in short “Client”) and the website development and maintenance developer company (in short “Developer”). The contract lists the scope of work to be done by the developer for the client, roles and responsibilities of both the parties, terms and conditions to be followed by both the parties while performing their duties under the contract, warranties and representations, assignment of duties, etc.

There are generally two parties in this contract; namely the “Client” and the “Developer”.

Importance of website development and maintenance agreement

When a client takes the services of a developer for building a website, he approaches them in one of the given ways: (a) “Build a website for me, I have no domain knowledge”; (b) “Build a website for me with particular specifications as quoted.”

If the client has no domain knowledge, then the Developer usually provides a questionnaire to the client to understand his demand, i.e., what kind of website he demands and what all he requires in his website. In case the client already has the knowledge of the domain, he can provide the developer with a Request for Proposal (RFP) form, quoting his specifications. After going through the Request For Proposal (RFP), the developer can understand the client’s needs and can also further negotiate for building the website.

In both the cases, either the questionnaire or the RFP, form the part of the contract, so that the Developer becomes bound by the requirements of the Client.

The Agreement helps in:

A. allocating the roles and responsibilities of the parties and legally binding them to fulfill their obligations under the contract (for the Developer it is – building the website and for the Client it is – payment to the Developer for building the website)

B. preventing either party from disclosing confidential information of each other as well as the information generated during the website development

C. removing the possibilities of misunderstandings and confusion between the parties and also prevents of disputes from taking place

D. protecting any kind of IP (intellectual property) generated during the website development

Relevant clauses

Scope of work

(i) In website development

It is important for the developer to understand the needs of the client. There are a number of websites on the internet, it is for the client to tell what kind of website he likes. Also, the developer can suggest the type after understanding the purpose. After the type is decided, the parties need to decide on what all shall be included in the website, how interactive it has to be made, stages of completing the task (the timeline) and the budget. The scope also includes purchasing IP Addresses (Domain name registration) and servers on which it shall be hosted, and also providing training to the client for the use of the website.

It is of utmost importance for the client to get the domain name registered in his own name. Domain names are usually bought for long durations.

(ii) In maintenance service

Maintenance is all about keeping the website smoothly running and updated. It also involves storing the website information that it generates on a daily basis. It has to be decided that once the website is up and running, at what periods will the developer be required to change various pictures, banners and videos. Since the developer is not always available at the client’s disposal, it is necessary to decide how frequently the developer will be called in action. Also, the developer will be required from time to time to update the various licenses required for running the website.

Intellectual property rights

Intellectual Property Rights is one of the dominant clauses and reasons as to why parties enter into this agreement. Developing a website can lead to infringing of IPs of parties unknown to the agreement, leading to disputes with them, paying hefty penalties and ultimately shutting off the website.

Developing a website means using and creating several IPs such as copyright, design, trademark and at times, patent. This leads to a very important question as to who owns what IPs. Thus, it is important to decide prior to executing the agreement as to who shall be owning what IPs.

Ownership of IP under this agreement are divided into 3 parts:

(i) IP of the Client – All the inputs/IPs that the client provides for customization purposes, remain the property of the client. Once the website is developed, all the IPs generated, of which neither the developer nor the third party are the owner, becomes the property of the Client.

(ii) IP of the Developer – There are certain inputs/IPs that the developer creates on its own and are unique to him. Such inputs/IPs if used in the website of the client, the owner of such inputs/IPs remains with the developer.

(iii) IP of Third Party – All the IPs that belong to the third party and the developer uses it for building the website with/without permission, the third shall remain the owner of it. If used without permission/license it will lead to infringement. If used with permission/license then license fee is to be paid by the client.

Confidentiality

Confidentiality is an important clause that restricts either party from disclosing any information under the agreement to a third party. Confidentiality runs during the term of the agreement but it should be drafted such that it remains active even after the contract comes to an end. The certain time period should be decided for which either parties cannot disclose any information even after the termination of the agreement. It should be recorded as to what all constitutes confidential information and under what circumstances such information can be disclosed, such as; it can be disclosed to the employees of the developer, it can be disclosed to law enforcement authorities on demand, etc.

Payment terms

Money is the primary consideration that the developer receives for the development of the website. There are two ways the client can make payment, depending on how well he negotiates with the developer:

(i) Monthly payment (good option for the Developer)

In this case, once the term for the development of the website has been decided, the total compensation shall be divided by the term.

Example: A (Client) and B (Developer) enter into a contract and the term for the development of the website they decide is 4 months. The total compensation decided is $4000. So A shall pay $1000 to B every month.

(ii) Milestone based payment (good option for the Client)

In this case, the client shall divide the complete work into certain milestones, and on completing each milestone the developer will receive a certain amount.

Example: A (Client) and B (Developer) enter into a contract and the terms of payment they decide is milestone payment. The total compensation decided is $4000. The work is divided into 5 parts (a) Upfront – $1000 (b) Designing of the website completed – $500 (c) Development of the website is completed – $1000 (d) Testing of the website is completed and is approved by the Client – $500 (e) The website goes live – $1000.

Termination

If the term for the agreement is decided then the agreement automatically terminates at the end of the term. But in case there is no term decided or either party no longer wants to continue with the agreement, the termination clause becomes vital for the parties to decide its end.

Termination can be at convenience i.e., either party voluntarily terminating the agreement by giving a written notice and on the occurrence of material breach i.e., the grounds of which should simultaneously be recorded in the contract. It is important to note all possible grounds, under which either party becomes entitled to terminate the agreement.

Some of the grounds can be:

(i) If the developer fails to comply with the timeline decided even after providing additional time.

(ii) If the client does not make payment as per the schedule in the agreement.

(iii) If either party is declared bankrupt.

Consequences of termination – If the agreement terminates what consequence it will have should be recorded in the agreement. Consequences can be; both parties shall return the confidential information/proprietary information/IPs that they had taken under the agreement, what rights shall be reserved with the client and the developer after the termination, penalty to be paid for the termination (where it is material breach).

Dispute resolution, governing law and jurisdiction

A contract is considered good when it contains a dispute resolution clause which states that in case of a dispute, it shall be resolved through Arbitration. The dispute should be governed by Arbitration and Conciliation Act, 1996.

In India, such agreements come under the purview of Indian Laws in general and in specific; Indian Contract Act, 1872, Intellectual Property Laws (Copyright Act 1957, Trademark Act, 1999, DesignAct, 2000 and Patent Act, 1970), and Information Technology Act, 2000.

The jurisdiction can be decided mutually by the Parties. Practically, jurisdiction depends upon the negotiation power of the parties. It can be at the place of business of the developer or at the place of residence/business of the client.

Conclusion

Website Development and Maintenance Agreement plays an important role in our life. Due to Covid a lot of the work has gone virtual, people are moving their business online, to stay competitive and match up to their competition. Websites play an important role in keeping the business alive. It also acts as an advertisement for the business.

Today, every business demands a website of its own. And if the website is one of a kind, then the business will skyrocket. If the owner of the business knows how to develop a website or has a team for it then it’s just great. But if the owner does not understand all the technical know-how required, then the only option he has is to approach a developer.

This is where the Website Development and Maintenance Agreement comes into play, through it the client can clearly mention all the rights and liabilities of the parties, the scope of work, payment, deadlines, etc., beforehand so that in future not only the client does not have to go through litigation but also his website runs smoothly thanks to the developer.

References

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An analysis of journalism in modern India

Diganth Raj Sehgal

September 19, 2021

This article is written by Vidisha Verma

Table of Contents

Introduction

“Knowledge makes the man, they say”. The concept behind this age-old saying is that without intelligence, human beings will be no better than unintelligent animals. Journalists, historians and scholars – individuals who are credited with giving knowledge to humanity. They involve journalists who provide us with our full knowledge of current affairs and events around the world. With the boom in information and communications technology over the last two decades, the world of media has changed drastically. Today, Mass media provides 24-hour news and updates us daily with news and information from even the most distant areas of the world. In a country like India, Indian media, a powerful entity, has been defined as the “Fourth Pillar of Democracy”. Being one of the pillars of India’s democratic nation, Indian media has a huge responsibility to make the nation because it affects the political leanings of people and therefore enables them to make the right decision when choosing a government. Media plays a crucial role in the democratic life of the country’s citizens as it keeps people informed about the socio-economic and political state of affairs.

Role of Journalism in India

The role of journalism is primarily, the communication of news, information, updation and education. Take the situation with COVID-19, for instance, Journalists have provided periodic reports on the number of infected, deaths and rehabilitation to the audience
In the contemporary world, Indian media has become a critical tool in the name of power and politics to give “voice to the voiceless” and to expose the face of the truth; amidst growing corruption, hatred, and violence in the name of power and politics.
The media has a huge role in shaping and broadening the horizon of the perspective of the public as well as making them aware of the incidents happening in society on a daily basis.
Journalism also plays an important role in catalysing India’s development measures, national integration and the fight for justice.
It also acts as an interpreter for the general public by breaking down the information in the layman’s language for consumers to understand. Taking an example of the government presenting a budget. The benefits or threats posed by the new budget cannot be comprehended by a layman. It is the responsibility of the journalists and media to speak to the experts and present the benefits and disadvantages of the budget before the public.

For the most part, it serves to inform the public and create awareness. It is an open medium, meaning that the intended audience includes the entire community or the public. Journalism is therefore an essential component of a democratic society.

Origin and Development of Press in India

India has a long history of struggle for independence, including a multitude of problems. Press freedom in India has also experienced a saga of struggles against the authorities who have sought to censor information. Journalism in India has been incredible since its very conception.

Pre-Independence

Modern Indian journalism started in Calcutta in 1780 with James Hickey’s publication of the Bengal Gazette in English. But Hickey’s career in journalism was minimal since he was arrested and detained in 1782 for publicly opposing the policies of the government and the East India Company. The birth of a free press had already started with more newspapers (such as The Bengal Journal, Calcutta Chronicle, Madras Courier, and Bombay Herald) coming up together with different regional language papers spreading awareness of different issues. Udant Martand, published in Bengal in 1826, became the first Hindi newspaper in India.

The colonial administration then enacted several acts in 1799, 1818 and 1823 to regulate the country’s press. The legislative variance during this time has been the Press Act of 1835, most famous as the Metcalfe Act, which implemented a more liberal media policy. This continued until the rebellion of 1857, when the troubled international administration, rattled by mutiny, adopted the Licensing Act. It allowed the colonial government to halt the publication and dissemination of any printed content. The Vernacular Press Act was one of India’s sternest press freedom laws. This act, passed by Lord Lytton, the then Viceroy, gave the government broad rights to censor reports and vernacular editorials in the newspaper. It was an attempt to deter criticism from the vernacular press of British policies.

The Press Act of 1910 hit Indian papers especially hard after that. It allowed the local government to assert a security fee for any ‘inflammatory content’ against the government. Almost 1,000 records were prosecuted under the Act. Further limitations were brought on by the beginning of the Second World War in September 1939. Despite the Press Emergency Act, the government requested stiffer censorship. The foreign news that was coming in was monitored and filtered.

Post-Independence

When India became free, there was no longer any antagonism between the government and the people, and the press was free to play a completely new role. In March 1947, the Press Enquiry Committee was formed to investigate press laws in the light of fundamental rights formulated by the Constituent Assembly.

The first Press Commission was established by Justice Rajadhyaksha in 1954. The establishment of the All India Press Council was a key recommendation of the Committee. It was officially constituted on 4 July 1966 as an independent, statutory, quasi-judicial body presided by Mr. J.R. Mudholkar, then Judge of the Supreme Court. It was a self-regulatory watchdog for the press, for the press and for the press. The Council, established pursuant to the 1965 Act, functioned until December 1975. The Act was repealed and scrapped by the Council during the Internal Emergency. The new legislation authorizing the establishment of the Council was introduced in 1978 and, in 1979, the organisation was renovated with the same aim of preserving the freedoms of the press and upholding and improving the principles and standards of the press in India.

Today, The Press Council of India is the formal body that exclusively deals with maintaining, improving the standards and freedom of the press in the country.

Press Council of India

It is a civil, quasi-judicial body that acts as a press watchdog. It arbitrates allegations against and by the press on grounds of infringement of ethics and infringement of press freedom. The position of the Council is currently regulated by the 1978 Act of the Press Council.

Composition: A chairman and 28 other members make up the PCI. The Speaker of the Lok Sabha, the Chairman of the Rajya Sabha and a member chosen by the PCI shall elect the Chairman.

Functions

Helping journals maintain their independence.
Creates a code of conduct for journalists and news agencies.
Support to uphold “high standards of public taste” and foster accountability among citizens.
Review developments likely to limit flow of news.

Powers

The PCI has the authority to accept complaints from an editor, or journalists regarding violation of journalistic integrity or professional misconduct.
The PCI is responsible for enquiring into complaints received.
It can summon witnesses and take testimony under oath, order copies of public documents and records to be submitted, even issue alerts and notify the newspaper, news agency, editor or journalists.

Limitations on the powers of the PCI

The PCI has restricted powers of enforcing the guidelines issued. For the breach of rules and duties, it cannot penalize newspapers, news outlet, editors and journalists.
The PCI only overviews the working of print media. In other words, the guidelines should be applied on newspapers, journals, magazine and other distinct print media.
It does not have the power to review the functioning of the electronic media like radio, television and internet media.

Status of Media Freedom in India

In 2021, India’s press freedom ranked 142 out of 180 countries in the Press Freedom Index, an annual ranking of Reporters Without Borders (RWB) countries, an international non-governmental organization dedicated to safeguarding the right to freedom of information. However, the report also said, “there have been constant abuses and violations of freedom of the press, including police brutality against journalists, ambushes by political activists and reprisals by criminal gangs or corrupt local authorities”. We are entering a decisive decade for journalism linked to crises that impact its future. The coronavirus pandemic highlights the negative forces affecting the right to accurate information and is itself an exacerbating factor. This brings us to the section that, what will media freedom look like in the future. What is the legal status of the media and media freedom in India?

Legal Provisions

ARTICLE 19(1)(a) – FREEDOM OF SPEECH AND EXPRESSION

Freedom of speech and expression is protected by Article 19(1)(a) of the Constitution of India. This freedom includes the right to freely express one’s beliefs or views through speaking, writing, printing or otherwise. Freedom of speech and expression is the essence of democracy, because open and reasonable public debate and public education is detrimental to the effective functioning of the government of the people.

Further, Media freedom is central to an individual’s existence in a democratic society; it is one of the essential foundations of a free society and an instrument of social and political change. The Indian Constitution, however, does not expressly use the word ‘freedom of the press’. However, freedom of expression certainly includes the freedom to spread the ideas guaranteed by the freedom to publish and to transmit all the essential aspects of press freedom. Press editors and administrators are all people, and they exercise their right to express themselves as they write in newspapers.

This was established in the case of Romesh Thapar v State of Madras. In this case, the Government of Madras prohibited the entry and circulation of the English newspaper “Cross Road,” which was printed and published in Bombay because the petitioner expressed his scepticism regarding the then government. The petitioner, Mr. Thappar then filed a case in SC for his violation of right to freedom of speech and expression. The apex court then held that, the expression “freedom of press” has not been used in Article 19 but it is comprehended within Article 19(1)(a). The expression means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. It is the primary duty of the courts to uphold the freedom of press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate.

Therefore, it is now an existing law in India that freedom of the press also requires the right to freedom of speech and expression. Media freedom can thus be used to mean the general functioning of the right to freedom of speech and expression in the different sectors of the media.

However, it does not grant an absolute right to speak or disseminate as one wishes without obligation, nor does it grant unlimited or unrestricted immunity to those who violate this privilege. The Indian Constitution in Article 19(2) attempts to strike a balance between individual liberty and state control and authorises the state to impose certain reasonable restrictions which are:

Security of the State;
Friendly relations with foreign States;
Public order;
Decency and morality;
Contempt of court;
Defamation;
Incitement to an offence;
Sovereignty and integrity of India.

Plight of journalism in Modern India

As stated earlier, the press is regarded to be one of the foundations of democracy, since it serves as the watchdog of the three political institutions. While freedom of speech and expression (including the freedom of the press) is enjoyed by people, there are several instances in which the press is often faced with difficulties. Journalism is not journalism unless the journalist has the right to think. India lags far behind in providing its journalists with an independent pen and a place to work fearlessly. Journalists are tied to their media houses, which bow down to certain political parties or those in power. At this time, it seems like no media outlet has the right to run neutrally and is forced to lean towards a political party.

Journalists go through intolerable torture and sometimes end up meeting with death. Constant violations of press freedom have taken place, including abuses by government leaders, intimidation by criminal gangs, police brutality or threats by corrupt elected authorities. Journalism has become one of India’s most dangerous occupations to practice.

I will explain such instances further, through some of the prominent cases happened lately in India, which are:

Gauri Lankesh Murder Case;
Arnab Goswami Case;
Suspension of Internet Services in J&K.

The Gauri Lankesh Murder Case

Lankesh was a political activist, journalist and editor of the Kannada tabloid ‘Gauri Lankesh Patrik’. She was shot dead by unidentified attackers on Sept. 5, 2017 with the incident drawing national outrage and protests. At the time of her death, Gauri was known to be a critic of right-wing Hindu extremism. This case shook the collective conscience of the country.

But the worst news is that Gauri Lankesh’s family is still awaiting her Speedy Trial for justice even after her third death anniversary. Her family, friends and the prosecution say they had a frustrating time convincing Karnataka’s state government to set up a special dedicated fast-track court in the case. And the situation, they say, was further worsened by the outbreak of the COVID-19 pandemic in March of this year. The administrative head of the court, responsible for the day-to-day administrative work of the court, along with many other trials under special acts, is also the judge appointed in this case. Thus, the judge is at most prepared to spend an hour or two in court for all his administrative work. He had to deal with many incidents during that period, one of which was the case of Lankesh. Once the principle of fairness and equality has been secured, Gauri will get justice. To hold a trial on a regular basis, all that was required now was a dedicated court. But it has not happened.

The murder of Lankesh was likened to the killings of three other rationalists, beginning with Narendra Dabholkar, member of the (MANS) Maharashtra Superstition Eradication Committee on 20 August 2013 in Pune, who was shot dead by some bikers when he was out on his morning walk. After Dabholkar, the chief of the Communist Party of India (CPI) Govind Pansare was assassinated on 16 February 2015 in Kolhapur, Maharashtra and Kalburgi, a rationalist, and a former Hampi University vice-chancellor in the state’s northwest Ballari district, was gunned down by two assailants on August 2015.

It is not just the case of Lankesh that the trial has been postponed. Although in Dabholkar and Pansare’s case, the investigation is still underway, and in Kalburgi’s case the trial is yet to commence.

In the larger picture the justice should be given at pace to the journalists as they are also the citizens of India and enjoys the same rights and these heinous crimes and tortures towards the journalists must be stopped.

The Arnab Goswami Case

The arrest of Republic Media Network Editor-in-Chief Arnab Goswami recently in a two-year-old case of abetment to suicide is yet another instance of misuse of state power against journalists and curtailment of media freedom.

Admittedly, the crime for which Goswami was arrested was significant and justified a sustained investigation in 2018, when Anvay Naik left a suicide note accusing Mr Goswami, Mr Feroz, Mr Nitesh Sharda and the Republic TV of not paying him his dues after he planned the channel’s interiors. Given the enthusiasm with which the Congress, a part of the ruling alliance, is officially circulating material relevant to the case points to political motivation in the treatment of the high-profile TV personality.

The relevant issue in this context is how frivolous and frequent the state’s power to arrest is being misused, especially in the case of journalists. Goswami’s case clearly hit the headlines because of his status as a celebrity, as well as the support he has received from senior members of the Union Cabinet.

Goswami’s arrest is reprehensible not only for the political position of the police, but also for the greater threat and restriction of the freedom of the media.

Indeed, according to a study compiled by the Rights and Risk Analysis Group (RRAG) between March 25 and May 31, 2020, at least 55 journalists have been subjected to arrests, registration of FIRs, summons or announcements, physical assaults and threats to their reporting across the world. Criminal defamation suits are casually slapped on journalists by politicians in control for perceived insults that have had a chilling impact on the profession. The intimidation, detention and threat of indictment of journalists has become so normalized that it is not reported by individual police officers as a crime, let alone a crime against the practice of liberal democracy. The need of the hour is long-standing reforms and professionalization of the police force to save them from becoming the handmaid of their political bosses.

Suspension Of Internet in Jammu And Kashmir

On August 5 2019, the central government had decided to revoke the erstwhile state’s special constitutional status granted under Article 370 of the Indian Constitution and split the region into the Union Territories of Jammu and Kashmir, and Ladakh. At that time, all channels of communication in Jammu and Kashmir had been barred by the Central Government. Services have been partly restored, with Internet speeds limited to 2G. Then the ‘Foundation for Media Professionals’ filed a petition for the restoration of high-speed internet in Jammu and Kashmir. But the administration resisted the restoration of 4G services in the territories of the Union. It reasoned its move with a means of protecting the sovereignty, dignity and security of the country.

The government had set up a “Media Facilitation Centre” for journalists at a conference hall of a hotel. However, media persons have complained that it lacked enough computers and that they had to wait for several hours to work.

Several journalists from various media organizations then protested in Srinagar against the ongoing suspension of Internet services in Jammu and Kashmir for more than 100 days. The demonstrators called for the immediate restoration of the facilities so that they could fulfil their professional duties. The government has set up a media center to assist journalists in filing their stories, but journalists have been demanding the restoration of high-speed broadband for unhindered reporting.

The greatest disservice the government can do to freedom of the press is to limit the means of communication and the Internet. That’s exactly what had happened in J&K.

Hence, The risk factor in the journalism profession is increasingly growing. They face abuse and threats for exercising their constitutional rights. They include kidnapping, murder, online stalking, involuntary imprisonment and torture. Since they operate for the benefit of humanity, they must also be protected from crimes. Without the media, one cannot picture a profound democracy. There is need for effective laws for protection of media and journalists.

Responsibilities of Journalists

The media, along with any other field, should not harm the ethical and socio-cultural aspects of the economy, but should encourage them. By highlighting social evils such as corruption and discouraging other poor behaviour, this helps to maintain social harmony. Therefore, through developing and finding solutions, the aim of the media is to inform, document, analyse, interpret, mediate and mobilize. A journalist writes whatever he observes the society. He publishes whatever is consumed in society by citizens who might be made up of different races, sects, categories and characteristics Therefore, a journalist should be very cautious and aware of his duties in advertising it to the present sensible society when writing a report on any case. It must deliver such news as it serves a common function and fulfils the needs of major people as well. Any presentation or writing by a journalist should never have an effect on the beliefs, ideals, faith and practices of any part of any group of our society. Journalist writing should promote not only the maintenance of ‘social order’ but also, simultaneously, the achievement of social change.

There are three fundamental duties that are to be understood by every journalist. They are social, legal and professional.

Social Responsibilities – The press reflects our culture’s social representations or images. A journalist’s presentation can initiate an environment of understanding within society and should continue to do the same in a sustained way to retain it. Therefore, the expectations of common news audiences should be equal, balanced, truthful, motivating and satisfying every representation of every journalist. It is also intended to ensure that society is well-informed about events.

Legal Responsibilities – While working as a journalist, in order to avoid the development of problems and keep the company ‘disruptive’ in any way, one should be well acquainted with all legal issues. For this purpose, a journalist should not intervene or interfere with the privacy or confidentiality of an individual until such time when he or she is expected to be informed to the public. Defamation – Any libellous or defamatory presentation with someone, company or party is not appropriate and should be strictly stopped by the journalist. Libellous and defamatory writings or images can receive immediate reply with greater acceptance from the public, but it is not pertinent as well as not complying with the standard of professionalism.

Professional Responsibilities – The reporter must have honesty, dedication and integrity to his profession. It should be very transparent and faithful to detail the news of any case that is to be released to the public. In order to present the same to the audience in a confident and satisfactory manner, very good homework in this regard is mandatory for any event and should be done by the journalist. Above all, the presentation must be honest and impartial and will never add any embarrassment or complexity to the company in the future. To be sure, a journalist will need a high degree of integrity in delivering every output. A news article should be produced with greater care and accountability in order to sustain its quality level at a higher level by avoiding some kind of inclusion of an undesirable and offensive element or part of it.

Conclusion

At last, it can be concluded that the freedom of the press is nowhere mentioned in the Indian Constitution. The Right to Freedom of Speech and Expression is provided in Article 19 of the Indian Constitution. It is believed that Freedom of Speech and Expression in Article 19 of the Indian Constitution include freedom of the press. Freedom of expression enables one to express one’s own voices as well as those of others. But freedom of the press must be subject to those restrictions which apply to the freedom of speech and expression. The restrictions mentioned in Article 19 are defamation, contempt of court, decency or morality, security of the state, friendly relations with other states, incitement to an offence, public order and maintenance of the sovereignty and integrity of India. While freedom of speech and expression (including the freedom of the press) is enjoyed by people, there are several instances in which the press is often faced with difficulties, which needs urgent attention.

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The prevalence of piracy in the Indian film industry

Diva Rai

September 19, 2021

Anti piracy — Image source - https://bit.ly/3hbOKPE

This article is written by Debatree Banerjee.

Table of Contents

What is piracy?

The interpretation of the word “Piracy” have changed over the years. Initially, the term implied the act of looting by ship-borne looters, who attacked other ships and coastal areas. However, in 21^st century the term holds different meaning in the context of film industry. The term defines the act of selling, imitation, and distribution of copyrighted films without the authorization by the original author.

India is the world’s largest producer of films with its Bollywood and regional movies. The film industry is one of the country’s fastest growing industry. However, this industry is manifested with the plague of piracy. In 2000s the pirated movies were largely consumed through the sale of CDs and DVDs, and with the increase in accessibility to the world wide web, there has been a stark rise in the consumption of pirated movies through the Internet. Because of the Covid-19 situation, the online film piracy rose as high as 62% in the last week of March, 2020. Even if it seems harmless, the consumption of pirated movies, not only create a cut in revenue collection but also causes employment loss. Indian media loses about US$2.8 billion to piracy. As per the research conducted by US-India Business Council (USIBC), the film industry of India experiences 11% loss in employment because of media piracy.

Factors behind piracy

There are variety of factors which impacts the increase in sale of pirated versions of films. The market need is one of those factors. Sometimes, the consumers does not have ideal access to several movie contents because of geographical or economical barriers which drive them to consume the pirated versions more. The pirated movies are low priced, and are sometimes available for free of cost, which makes it attractive to consumers. The impractical low pricing of the products by the pirates, is possible by avoiding the legitimate costs of production, acquisition and other regulatory obligations. As the costs of production is limited, the pirate industry is concerned more about volume production, earning them favourable profit returns.

Innovation of new technologies such as file compression and storage formats like DVD and Blue Ray made it easier for the pirate industry to manage large volumes of data. Along with it, the accessibility to high speed internet at a low cost has made it easier for the consumers to access such pirated contents more easily.

Brief study on film piracy in India

The regional film industry is the primary source of entertainment in India for the communities in small towns and rural areas due to the lack of urban developments. Thus, the entertainment market is dominated by regional films and foreign films only have a share of 3% in the legal market. However, in the pirated market the share of regional films and foreign films are uniformly balanced.

Because of the high costs of prints, the theatrical release of major films is only available to Tier I and Tier II cities, denying access to such content for the consumers belonging from other parts of the country. In such cases, the audiences get easy access to the contents through the purchase of pirated versions, illegal broadcasting and unauthorized screenings of movies in these remote areas. Sometimes, the political condition of an area also plays a role in the consumption of pirated films. For example, due to political turmoil between India and Pakistan, the Pakistan government declared a ban on Hindi films, increasing the consumption of pirated versions of the films in Pakistan.

In India, there are around 30,000 unauthorized video rental stores in India. Along with it, the local cable channels air pirated content about 60% of the time. These channels reach 65 million households, thus increasing the accessibility of the pirated content.

Sometimes, the contents are available across cities and towns before the actual date of release. This happens because of three primary leakage points:

The primary mode of piracy for films is attributed to theft of prints taking place in processing labs to theatres or sometimes from the theatres themselves prior to screening. “Tele-Cine” machines are used to convert the prints to digital formats.
Another mode of piracy is Camera Print Piracy, where an amateur camera is used to film the movie in a theatre. This mode is used mainly for foreign films but is also prevalent for regional films.
Both the regional and foreign film industries are impacted because of the malpractice of illegal imports. Sometimes, different countries have different release dates for a particular movie, giving the pirates an opportunity to acquire such content from other countries and circulate it in India. Malaysia, Hongkong and Singapore are cited to be the hubs for such illegal imports.

Another process that takes place in the pirate market, is where the key vendors purchase the master copy of the movies, and then replicates them through the stamping process and CD burners, and further sell these pirated prints in major markets. To aggravate it further, most of the consumers copy such disks and upload them on the internet.

Copyright laws for protection against piracy

The Copyright Act, 1957 is the major legal framework that deals with the facets of piracy in India. S. 51 of the Copyright Act lays down the acts which will be considered as infringement of copyrights. According to it, when any person without the authorization of the owner of the copyright uses the work in a way that is prohibited in the act, infringes such right. S. 65 of the Act punishes the person who is in possession of plates used for making infringing copies of a copyrighted work, with imprisonment which may extend to two years. The culprit shall also be liable to a fine. S. 65A punishes any person who circumvents a technological measure protecting work with copyright, with imprisonment of two years and liability to pay a fine. S. 65B protects rights management information by punishing the person who intentionally tampers with such information of any work with copyrights. This section punishes the perpetrator with imprisonment extending upto two years and he is also liable to pay fine. S. 66 of the Copyright Act, provides the Court with the right to confiscate the materials in question, and deliver it to the owner of the copyright. The Court may also make orders as per its own discretion regarding the disposition of infringing copies and plates.

Even though the sections do not specifically talk about online infringement or piracy, they can be interpreted in a way to punish the perpetrators.

Suggestions for the prevention of piracy

Apart from strict laws against copyright infringement supported by judicial infrastructure, the State and the Cinema Industry, must also take other measures to minimize the damage caused by the pirates. They both need to act as facilitators and coordinators, for creating initiatives and formulating policies against piracy.

The State can instruct the Internet Service Providers to block the access of the consumers into the sites hosting pirated content. This will help to reduce the number of pirate users, as the majority of people do not know the technical methods to circumvent such blocked sites.

The Industry can also offer its digital products at a reasonable price and make it more accessible to the majority of the population. It might not stop piracy completely, but it will help to curb down the malpractice by some proportion.

The lack of public awareness regarding the evils of piracy is also a major obstacle in curbing down the pirate industry. The technoid consumers are now not only the consumers but have become the pirates themselves. Consumers are often found in replicating the discs and uploading the contents on the internet. Thus, the public must be made aware of the legality of such activities.

Conclusion

Cinema is not only a source of entertainment but, it is the newest form of art. Such creative arts are economically beneficial for both the creator and the State, pooling a large amount of revenues and profits. However, the practice of piracy is a growing concern in India. Because of this, the film industry not only loses a large amount of annual revenue, but it also cuts down employment generation. Apart from this, it also morally discourages the creators from creating.

Even after the initiation of anti-piracy policies, the pirate industry still exists. The Government needs to make stricter laws to curb down this plague. The Industry needs to supervise the distribution and channeling procedures more minutely to prevent the malpractice of leakage and illegal importation of their contents. The consumers must be made aware regarding the evils of piracy. It is not only the duty of a single body to curb down the practice of piracy, but the society as a whole has to fight against it.

References

The Effects of Counterfeiting and Piracy on India’s Entertainment Industry; http://producersguildindia.com/Pdf/Ernst&Young_USIBC%20Piracy%20Study_March%2027.pdf
India sees big spike in film piracy post covid-19; https://www.livemint.com/news/india/india-sees-big-spike-in-film-piracy-post-covid-19-11589183182123.html
How the govt is cracking down on film piracy; https://www.livemint.com/industry/media/how-the-govt-is-cracking-down-on-film-piracy-1550130158629.html

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All you need to know about communication surveillance laws in India

Diganth Raj Sehgal

September 19, 2021

PrivacyPolicy — Image Source: https://bit.ly/2CptqVz

This article is written by Shivam Gupta and Payal Golimar.

Table of Contents

Introduction

In the era of development when technology is growing rapidly all over the world and benefiting the people around it, people are finding newer and different ways of committing crimes. Therefore, development in the recent decade in the field of technology contributed immensely toward the growth of cybercrimes. It is the essence of such offenses, that they can be committed without a visible appearance – anonymously and sitting far away from victims. And to make people liable for misusing the technology, we need an entirely different set of regulations dealing with this sector while keeping in mind the constantly changing nature of the sector, also what can be the possible ways of committing crimes under this sector. So, the crimes committed with the use of technology are commonly known as cybercrimes such as E-mail spoofing, forgery, cyber defamation, web jacking, DoS Attacks, and many more. It is to be noted here that, in the present study we are primarily concerned with communication surveillance.

Communication surveillance means monitoring, intercepting, collecting, or preserving the data/information communicated or generated with the use of technology by the third party that can be the government agency, a private company, or any other malicious actor. Advancements in communications have provided us with many ways to access a wide range of networks via which to communicate. With the growth of communication technology from telegraphs to redlines and mobiles to the internet, for people, it becomes easy to communicate. Supervision over electronic communication is needed in the interest of public safety, sovereignty, the integrity of India, and for security purposes.

Henceforth, due to many reasons, surveillance, in this sector becomes a major issue. So, the major national laws covering communication surveillance in India are the Indian Telegraph Act, 1885 an ancient one, and the recent Information Technology Act, 2000. These acts empower the Indian government to monitor and intercept communications.

However, the history of surveillance can be traced back to time immemorial and in the history of surveillance “state” always plays an important role. As surveillance is increasing the questions with regards to privacy are arising as rightly stated by sociologist David Lyon, “the spread of technology within societies will lead to their increased surveillance and subsequent lack of privacy”. Now, as in the recent Indian legal system, the concept of privacy is termed as the constitutional right and hence the issue arises, as up to what extent a person is subjected to surveillance by the appropriate authority. Henceforth, this notion ultimately raised many questions on the existing legal framework of surveillance. In the present study, an effort has been made to analyse some of the provisions pertaining to the surveillance laws in India that have an impact on privacy issues.

Position under international law

One of the basic human rights and is important for every human being for its identity is the right to privacy and it is also recognised by international law such as under Article 12 of the Universal Declaration of Human Rights, Article 17 of International Covenant on Civil and Political Rights, Article 14 of United Nation Convention on Migrant workers, Article 16 of United Nation of the protection of the Child. Article 10 African Charter on the Rights and Welfare of the Child, Article 5 of the American Declaration of the Rights and Duties of man, Article 11 of the American Convention on Human Rights, Article 21 of the Arab Charter on Human Rights, and Article 8 of the European Convention for the Protection of Human Rights.

When we talk about communication surveillance it is kind of a breach of privacy of an individual because according to International Principles on the Application of Human Rights to Communication Surveillance (IPAHRCS), Communication Surveillance is defined as “Communications surveillance in the modern environment encompasses the monitoring, interception, collection, analysis, use, preservation and retention of, interference with, or access to information that includes, reflects, arises from or is about a person’s communications in the past, present or future.” It also defines the term “Communications” which “include activities, interactions and transactions transmitted through electronic mediums, such as content of communications, the identity of the parties to the communications, location-tracking information including IP addresses, the time and duration of communications, and identifiers of communication equipment used in communications”.

The importance of Communication Surveillance is that it is important for the National Security of the state. Therefore, it can’t be banned even if it breaches the privacy of an individual. In Uzun v. Germany, the European Court of Human Rights examined an application alleging a breach of Article 8 of the European Convention on Human Rights, in which the applicant’s data was collected by investigative authorities via the Global Positioning System (GPS) and used against him in a criminal case. In this case, the petitioner was accused of being involved in left-wing extremist bombings. The Court unanimously decided that Article 8 had not been violated and ruled as follows: Mr. Uzun had been placed under GPS monitoring in order to investigate multiple cases of attempted murder for which a terrorist group claimed responsibility and to prevent additional bombings. As a result, it fulfilled the objectives of national security and public safety, as well as crime prevention and victim rights protection. It had only been requested after less intrusive means of inquiry had been insufficient, and it had only affected Mr. Uzun when he was traveling with his accomplice’s automobile. As a result, he could not be claimed to have been under constant and thorough observation. Given the severe nature of the inquiry, the Court determined that Mr. Uzun’s GPS monitoring was reasonable.

The IPAHRCS provide some principles which the states should consider while doing communication surveillance which are-

1. There should be a legitimate aim for doing surveillance.

2. There should be the necessity of such surveillance and if there are other methods that will not affect human rights then they should be explored first.

3. Any surveillance must be legal and prescribed by law.

4. Only adequate surveillance should be done which can help in achieving the purpose.

5. Before starting surveillance, it must be established that the need for surveillance is more important than the breach of the right to privacy of an individual.

6. Competent judicial authority must be established and the due process of law should be followed.

7. Individuals must be notified of surveillance. If notifying the individual will defeat the purpose of surveillance then it can be avoided.

Surveillance in India

As per Indian laws, Surveillance is prohibited, nevertheless, surveillance conducted by the government is legal if a proper legal channel is followed by the appropriate government. In the legal regime of technology, the concerned laws governing communication surveillance in India, are:

1 The Indian Telegraph Act, 1885;

2 The Information Technology Act, 2000;

3 The Information Technology Rules.

The Telegraph Act which was enacted way back in India majorly deals with the interception of calls by the government. The government derives its right of interception from Section 5 of The India Telegraph Act, which states, “Power for Government to take possession of licensed telegraphs and to order interception of messages”. Section 5(2) of the Act grants the central or state government authority over the transmission, interception, and retention of any communication if the following criteria are met:

1) If it is essential in the interests of India’s sovereignty and integrity,

2) State’s security,

3) Friendly relations with other nations,

4) Public order and,

5) Lastly for preventing incitement to the commission of an offence.

The clause’s proviso restricts the interception of communications of “press messages” of the correspondents who are “accredited to the Union government or state government”.

Another major law dealing with communication surveillance is the Indian Information Technology Act, 2000. The statute primarily addresses data interception., which means it governs digital surveillance. Accordingly, it can be said that the IT Act has broadened the horizons of surveillance as compared to the previous act i.e., The Telegraph Act, 1885. To understand this, we need to first look at the provision. According to Section 69 of the Information Technology Act, “Power to issue directions for interception or monitoring or decryption of any information through any computer resource”. This provision vests authority in either the central or the state governments “to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource”. Provided, if such information is required:

1) In the interests of India’s sovereignty and integrity.

2) Defence of India,

3) State’s security,

4) To maintain friendly relations with other nations, or

5) To maintain public order, or

6) For preventing incitement to the commission of any cognizable offence relating to above, or

7) For investigation purposes.

Section 69 of the IT Act is more extensive in this regard, as it grants the government broad powers to intercept information because Section 69 broadens up the categories of conditions that need to be fulfilled by the government before the interception of any information. Surveillance can now be carried out by the appropriate authority even for the investigation of any offence. It is important to emphasize here that there is no reasonable nexus to draw as to what types of offences are subject to government surveillance. Furthermore, Section 69 of the IT Act exempts the obligation of “public emergency” and “in the interest of the public safety” as specified by Section 5 of the Telegraph Act. Henceforth, Section 69 has broadened the scope of surveillance by the government.

Lastly, in addition to the Indian Telegraph Act and the Information Technology Act, the Information Technology Rules are also in place in India for the procedural governance of surveillance. The IT (Procedures and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009, majorly deals with the procedural requirements. The IT Rule, 2009 specifies the comprehensive method and safeguards for the interception of information, including safeguards such as recording the grounds for interception and the directives for the interception shall not exceed beyond the period of 60 days, it can be further extended up to 180 days, not beyond that, destruction of information or record so obtained through interception within 6 months, etc.

Recently, in the year 2018 government has ordered under Rule 4 provides that “the competent authority may authorize an agency of the Government to intercept, monitor or decrypt information generated, transmitted, received or stored in any computer resource for the purpose specified in sub-section (1) of Section 69 of the Act”. This step was taken up by the government to improve transparency and accountability and to handle crime and terrorism.

Apart from the legislative wing, the Indian judiciary also time and again set up the guidelines through precedents for the interception of the information or record by the government.

Indian jurisprudence

The right to privacy is not a fundamental right before the judgement given by the nine-judge bench of the Supreme Court of India in the case of Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors. After this ruling right to privacy was included under the ambit of Article 21 of the Constitution of India. The judgement overruled the rulings of M.P. Sharma v. Satish Chandra, District Magistrate, Delhi, and partially overruled the judgement of Kharak Singh v. State of Uttar Pradesh as both the judgements say that the right to privacy is not guaranteed under the Constitution of India.

In this ruling Justice D.Y. Chandrachud believes that a person has to live with dignity and privacy is one of the necessities for any human being for the fulfillment of dignity and also an important aspect for achieving the goal which protection of life and liberty intended to achieve. He is also of the opinion that if a law encroaches upon the privacy of an individual then that law must be in accordance with the fundamental rights given in the Constitution of India. If there is an invasion of privacy it should be justified under Article 21 on the basis that a law that allows such infringement must establish a procedure that is just, fair and reasonable. He stated a three-fold test for any law which establishes a procedure for infringement of privacy. After passing this three-fold test such law can be held valid. The three requirements are:

1. Legality which postulates the existence of law;

2. Need, defined in terms of a legitimate state aim;

3. Proportionality ensures a rational nexus between the objects and the means adopted to achieve them.

He further goes on to say that “Informational privacy was a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. Present Court commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. These were matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data.” Therefore, if the government had to do surveillance on someone then that surveillance should justify the three-fold test and also the balance need to be maintained between state interests and individual interests. Justice Jasti Chelameswar further added further reasoning to it that only where their compelling state interest and there is very urgent need to get into the privacy of someone then only right to privacy can be infringed of any person.

Another fundamental right that is affected by surveillance is freedom of speech and expression which is guaranteed under Article 19(1)(a) of the Indian Constitution. In the judgment of People’s Union for Civil Liberties v. Union of India, the Supreme Court of India held that telephone tapping of any person infringes the right of free speech and expression which is guaranteed under Article 19(1)(a). Court also held that if there are no rules which can be used to avoid improper and unwanted interception or disclosure of messages, there is always a risk of infringement of fundamental rights under Article 19(1)(a) and Article 19(2).

Conclusion

There is always been a grey area between surveillance and privacy concerns, and it is not only common in India but in the entire world, the question remained unanswered. At the same time, in India, privacy right is a constitutionally protected right and hence for unnecessary invasion, the government can be held accountable. In current Indian laws, surveillance is declared to be illegal but some exceptions are provided to the government for security purposes where surveillance is permissible. However, sometimes the language of the law is not so clear and they are interpreted or there are many possible interpretations of one term which just broadens up the surveillance power of the government. Henceforth, technology laws that misconstrue the main objective of the law should be amended or revoked.

In the period of digitalization, private and public players are coming up with advanced technologies and some of them are invasive beyond reasonable limits for instance Pegasus spyware. It’s spyware developed in Israel, which is used to tap phones, encrypted messages, audio, etc. this surveillance tool was developed to help the governments to monitor crimes. Now, many questions have been raised on the objective of Pegasus spyware, when the wire, reported that this surveillance tool was used by the Indian government to spy on hundreds of people like Indian journalists, political leaders, constitutional heads, dissidents, activists, and private individuals. Which has shaken the foundation of the Indian democracy as opined by Mr. Kapil Sibal, “it is an assault on privacy, human dignity & value of our republic” during the course of proceedings. The question now is to what degree the government can violate an individual’s right to privacy in the interest of national security. The answer to this question lies in our democratic setup itself. In the ongoing case over the use of Pegasus spyware centre contended that for national security purposes only the virus will be used. Supreme Court has yet to give the final verdict.

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