Daughter’s Equal Coparcenary Right Under the Hindu Succession Act, 1956

  • Yukta Ambastha and Shreya Srivastava

INTRODUCTION

 Patriarchal Hindu society provided women with property known as stridhan[1], and it mainly came from marriage gifts. However, women were denied property rights to the ancestral property and their right over the succession of the landed family property was limited. Restrictions imposed on the Hindu women‘s property rights have undergone radical change and current laws governing these rights are not stringent like those of ancient patriarchal society. Several pieces of legislation were passed that aimed at removing the barriers and conferring equal property rights on Women. The Hindu women’s right to property Act, 1937 was one of these legislations that recognized three classes of widows: viz., intestate‘s widow, widow of a predeceased son, and the widow of a pre-deceased son of a predeceased son as heirs of a Hindu male. The daughter had virtually no inheritance rights. The widow had a limited interest in the property of the deceased with a right to claim partition. But, the widow did not become a coparcener even though she was a member of the joint family and possessed a right akin to a coparcenary interest in the property. Under customary Hindu law, women did not have any substantial claim in the inheritance of property, and even in the remote occasions where they could inherit, it was only a limited estate. This sexual discrimination in the Hindu succession rules has been done away by the recent amendment made to the Hindu Succession Act,1956. The ambiguities regarding the application of the amended provisions of Section 6 have also been settled by the supreme court in the latest judgment wherein the court has considered daughters at par with sons and located the origin of coparcenary rights on one’s birth and not on gender.

Laws of Succession: Mitakshara and Dayabhaga School

Before the enactment of the Hindu Succession Act, 1956, succession laws were governed by the customary laws which varied from region to region. There are two principal schools of Hindu law, the Mitakshara, and Dayabhaga. The Dayabhaga school of law is pervasive in Bengal and Assam. Mitakshara school of law is in force in the rest of India. The Mitakshara was based upon the coparcenary consisting of males up to four generations in the undivided property of which every male (coparcener) acquired an absolute interest by birth. The amount of this individual interest fluctuated with births and deaths of coparceners. Under the Mitakshara, women could not become coparceners, hence they did not have a right in the joint family property by birth. Under the Dayabhaga system, males did not acquire a right by birth and the division of shares could take place only upon the death of the owner. Women under Dayabhaga inherited an interest in all property, separate and joint family

In Mitakshara coparcenary, there is the concept of unobstructed heritage, i.e., apratibandha daya and obstructed heritage i.e., sapratibandha daya. When right is created by birth it is called unobstructed heritage. In case a coparcener dies without leaving a male issue, the right is acquired not by birth, but by virtue of there being no male issue is called obstructed heritage. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of Section 6 of the Hindu Succession Act.

SECTION 6 OF THE HINDU SUCCESSION ACT (PRE & POST 2005 AMENDMENT)

According to Section 6 of the Pre-Amendment Act 2005, no female was a member of the Mitakshara coparcenary property as they were considered of not being a lineal descendant of the coparcener or from the same bloodline. Though a widow or daughter could claim a share being a class I heir in the property left by the deceased coparcener and a widow was entitled to a right to claim a share in the event of partition but the daughter was not treated as a coparcener. Only the lineal descendants of the coparceners through survivorship rule were said to be the coparceners. The Pre- 2005 Amendment Act was discriminatory on the grounds that women were not considered as coparceners to inherit the ancestral property since birth like the sons.

Before 2005, the coparceners consisted of the person at the top of the line of descent and his three lineal descendants.e., only sons, grandsons, and great-grandsons were holders of a joint property but the 2005 amendment to Section 6 of the Hindu Succession Act, 1956gave equal rights to daughters in the ancestral property. The 2005 amendment vests equal rights in daughters to her father’s property despite becoming a member of her husband’s undivided family.  Since the amendment allowed a woman to be a coparcener it automatically confers on the woman to be a Karta of the joint family. The amendment made daughter a coparcener, with effect from the date of the amendment and she can claim partition also, which is a necessary concomitant of the coparcenary.

CONFLICTING OPINIONS ON THE APPLICABILITY OF THE ACT TO DAUGHTERS

The 2005 amendment failed to provide clarity with respect to its applicability and scope. Though the amendment to the Act paved the way for the equal distribution of undivided interests in coparcenary property but ambiguities relating to the prospective or retrospective nature of Section 6 arose. The issue raised was that whether a daughter could be denied her share on the ground that she was born prior to the enactment of the Act and, therefore, cannot be treated as a coparcener. The Supreme Court gave conflicting opinions on this issue.

In the case of Prakash v. Phulavati[2], the Supreme Court held “If the coparcener (father) had passed away before September 9, 2005, i.e., the date on which the amendment came into effect, the living daughter of the coparcener would have no right to coparcenary property.”It held that a daughter cannot reopen a partition that took place prior to December 20, 2004. Second, the amended section would apply to the daughter only if her father was alive on the date when the amendment came into force, that is, September 9, 2005. If the father who was a coparcener was not alive on the date the amendment came into force, Section 6 would apply as it existed prior to the 2005 Amendment.

A contrary view was taken by the Supreme Court In Danamma v. Amar[3], the Supreme Court had held that the 2005 amendment would apply retrospectively and it confers upon the daughter the status of a coparcener in her own right in the same manner as it is conferred on a son. Thus, it confers equal rights in the coparcener property to daughters and sons. It was the factum of birth of the daughter that gave her coparcenary right, irrespective of when she was born, and that devolution of property is a later stage which occurs as a consequence of the death of a coparcener.

In view of these conflicting decisions, the question concerning the interpretation of Section 6 was referred to a three-judge bench in the case of Vineeta Sharma v. Rakesh Sharma.  The apex court rejected the misinterpretation that only daughters of coparceners who were alive on that day could get an equal share in the property. The Supreme Court affirmed the retroactive nature, effective from a date before it was approved of Section 6 and upheld the right of a daughter to be entitled to an equal share as a son in ancestral property, irrespective of when she was born. The Court stated that though the coparcenary rights can be claimed, with effect from September 9, 2005. The Court overruled the previous judgment and said that since the daughter acquired the coparcenary right by birth, it was not necessary for the father (coparcener) to be living as on September 9, 2005. Hence the date of the father’s demise, within the meaning of the date of the enactment of the amendment (September 9, 2005), loses its importance and is no more relevant when partition takes place.

CONCLUSION

The SC decision finally ends the flagrant discrimination that persisted between sons and daughters regarding the entitlement to an equal share in coparcenary property. It has settled all the doubts arising from the varying interpretations done by the Supreme court in other cases. The Court has rightly located the coparcenary rights in one’s birth. There is no need for a predecessor coparcener to be alive for one to achieve that status. The judgment has removed the legal ambiguity in the amendment to the Hindu Succession Act, 1956 by granting equal rights to daughters to inherit ancestral property would have a retrospective effect. Gender cannot be a ground for denying anyone anyone their inheritance right. Giving equal coparcenary rights to daughter is in consonance with the spirit of equality under Article 14 of the Indian Constitution. The judgment is a progressive step towards gender parity and is significant to end the patriarchal notion in society.

The authors are third-year law students at National University of Study and Research in Law, Ranchi.


[1]Rajamma vs. Varidarajula Chetti, AIR 1957 Mad 198.

[2] (2016) 2 SCC 36. 

[3]  (2018) 3 SCC 343.

The Progression of the Power of Judicial Magisterate to Undertake Further Investigation at the Post- Cognizance Level: Decoding Vinubhai Malviya’s Judgment

  • Piyush Thanvi and Shubham Bhandari

A Supreme Court judgment passed recently by Justice Nariman, Justice Surya Kant, and Justice Ramasubramanium in the case of Vinubhai Haribhai Malviya & Ors.v. State of Gujarat & Ors. (hereinafter ‘Malviya’) has sparked chaos in the world of criminal law. The Judgement stated that the Magistrate had the authority to order a further investigation of the crime under S. 156(3) of the Criminal Procedure Code (hereinafter Cr.P.C) 1973, at the post-cognizance stage, until the initiation of the trial and whether a further investigation could be ordered under S. 173(8) of Cr.P.C by the Magistrate.

A critical question that arose before the bench was whether “after a charge sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding.”

Understanding this issue requires an understanding of the term ‘Cognizance.’ Criminal law in India provides an inconsistent concept of cognizance, and therefore it does not have a rigid definition. Under S.190 of the Cr.P.C empowers a magistrate to take cognizance of an offence. It states that “any magistrate of first-class or second-class particularly authorized under this title may take cognizance on any offense related to the police report, complaint, or knowledge of the incident.”

Section 173(8) of Cr.P.C, allowed the Police to conduct a further investigation after the submission of the final report under S. 173(2) of the Cr.P.C. It does not provide these powers on the Magistrate to direct further and/or fresh investigation after Police submitted the final report.

This Judgment holds an essential place in the light of the earlier rulings, where a coherent view was taken as to the authority given under S. 173(8) of the Cr.P.C, i.e., the power conferred only on the investigative body and the Magistrate had no authority to issue the investigation under S. 173(8) of the Cr.P.C at the post-cognizance stage.

Previous judgments of the Supreme Court in the Case of AmrutbhaiShambhubhai Patel v. SumanbhaiKantibhai Patel (hereinafter ‘Patel’) and Athul Rao v. State of Karnataka &Anr(hereinafter ‘Rao’) considered that power under S. 173(8) of Cr.P.C was only given to the investigating agency and that a magistrate had no authority under the sub-section to order an investigation.

However, in other decisions of the Supreme Court, such as in Fakhruddin Ahmad v State of Uttarakhand(hereinafter ‘Ahmad’), it was stated that the Magistrate’s experience of the matter is subjective and differs according to the circumstances of the case. The Court stated that This is clear that the Magistrate is not bound by the viewpoint of the investigating officer and can exercise his power in his capacity, regardless of the opinions held in the police report, and to decide whether or not a crime has been committed or not.In another case, Vinay Tyagi v. Irshad Ali &Ors(hereinafter ‘Tyagi’), Supreme Court stated that after the Police took cognizance on the report, the Magistrate undoubtedly had the authority of ordering a further investigation under Section 173 (8)of the Cr.P.C.

In light of contradictory rulings of the courts in the case of Patel and Rao from Ahmed and Tyagi, the Court in the case of Malviya ruled in favor of the opinion that the Magistrate has the authority to order further inquiry, post-cognizance, due to his investigative agency on a police case right up to the phase of the framing of charges. The Court explicitly overruled those Supreme Court decisions which restrictively interpreted Section 173(8)of the Cr.P.C.This settlement of opposing opinions in the Case of Malviya is welcome as it encourages legal clarity.

However, this Judgment has overruled a three-judge bench decision of the Supreme Court in DevarapallyLakshminarayana Reddy v. V Narayana Reddy(hereinafter ‘Reddy’). The case of Reddy does not clarify the issue of law, as the term “investigation” defined under Section 2(h) of the Cr.P.C was not taken into consideration during the reading with Section 156(3) or Section 173(8) of the Cr.P.C, nor did the Reddy’sJudgment offer any justifiable basis to restrict a magistrate from practicing his rights. On the other hand, the Supreme Court held in Malviya’s case quoted “Moreover, in the context of the “investigation” referred Under S. 156(1) of the Cr.P.C, as the interpretation of “investigation” Under S. 2(h) would cover all proceedings for the compilation of evidence by a police department, and would undoubtedly entail proceedings for any further investigation under Section 173(8) of the CrPC”.

The Bench in Reddy’s case was meant by “taking cognizance of an offense,” broadly speaking, the Magistrate extends his observations to continuing within the scope of Section 200 and Chapter XV which contains Section 202, it deals with provisions relating to the measures to be taken by the Magistrate before and after cognizance of any offence has been made. But in the said case, it was held thatthe Magistrate has no power to undertake proceeding under Chapter XV in the post-cognizance stage and therefore he has no powers Under S. 156(3) to order a further investigation and cannot be considered to have taken cognizance of the crime within the context of Section 190(1) (a).As it was well quoted in Reddy’s Judgment that “that the power under Section 156(3) can only be exercised at the pre-cognizance stage”.

The reasoning in which Malviya’s Bench challenged Reddy’s Judgment was, it noted that “there is no reasonable explanation given by the Court in Reddy’s rulings as to why the Magistrate’s powers to order furthermore investigation should immediately be ended upon the process being issued and the accused appearing before the Magistrate while, at the same time, the Police’s power to further investigate the crime remains the right until the stage the trial starts.”It was well quoted in Malviya’s Judgment “Thus when Section 156(3) states that a Magistrate empowered under Section 190 may order “such an investigation,” such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of “investigation” contained in Section 2(h).”

The Supreme Court has stated in the Malviya’s ruling that the Magistrate has the right to order a further investigation in a criminal case also after it had already taken note of the matter and issued a summons based on a charge sheet.

To arrive at a decision, the Supreme Court also relied on the prudence established in the Judgment of Kamlapati Trivedi v. State of West Bengal (hereinafter ‘Trivedi’), which acknowledged that if the Magistrate disagreed with the police report, then he may order further investigation.

Conclusion

The investigation is triggered by Section 156(3), which is seen as pre-cognizance, whereas Section 173(8)permits the Police to carry out further investigations also after a final report has been forwarded to the Magistrate.

The power for Magistrate to undertake further investigation can, by means of cumulative investigations in connection with complaints and counter-claims between the parties, minimize the multitude of First Information Reports (FIR) and corresponding litigation. The magistrates may also be able to resolve a faulty police investigation. It may rejuvenate the Magistrate to rectify a gap between the later stage at the proceedings, at the same time, the number of complaints or reconsider proceedings will rise, with each decision appealed by the aggrieved party before the superior Court causing the appeals/revisions/applications to be more delayed.

The previous judgments of the Court were limited to the acknowledgment of offenses before the Court as a matter of legal procedure. However, it was later modified to accommodate the fundamental change in the criminal justice system and legal procedure. The judge shall allow using all the authority given to him in such a manner to ensure that justice is served. The power of the Magistrate to order an investigation and further examination, according to sections 156(3) and173(8), has expanded to the post-cognition level.

Piyush is a third-year law student at Institue of Law, Nirma University, and Shubham is a third-year law student at National Law University, Jodhpur.

Technology in Litigation: Are Virtual Courts the Way Forward?

  • Akshat Agrawal

INTRODUCTION

The 21st century has been witnessing the growth of technology sweeping across every field and contributing to the development process, which has been imperative in enhancing work efficiency. The Judicial System of the country is no different in making way and incorporating these technological advancements in the justice delivery mechanism. The world is battling with coronavirus (COVID-19) pandemic which has posed a severe public health challenge for countries across the globe. Amidst the social distancing measures and lockdown directives that have nestled down people in their homes, the Indian Judiciary still holds the responsibility of not letting the justice dispensation mechanism to get disrupted. The situation has encouraged and compelled the courts in India to experiment with the digital mode of hearing the cases. The impetus of necessity has pushed the courts to bring innovative technological changes in its working.

The Supreme Court of India exercising its power to pass any order required for doing justice in any case[1] laid down specific guidelines for all courts to make use of technology to take up the cases for hearing. The apex court of the country and some of the other lower courts have been taking up matters for hearing via video-conferencing in virtual courtrooms.[2] In the present circumstances, it is essential for the country’s judicial mechanism to remain operational and not pile upon to the already existing number of cases pending with it. The system of conducting virtual courts on digital platforms is one way for the judiciary to remain in function. The article primarily examines the prospects of digital courts and virtual hearings and critically analyses the challenges in its implementation. It also touches upon the ways to overcome those challenges.

THE DEVELOPMENT PROSPECTS

The Indian Judiciary has always been under the picture of proliferating backlog, increasing arrears, and unprecedented delays for the disposal of cases. The introduction of technology and digitization of the judiciary has been attempted by way of different schemes. The e-courts project is one of those schemes, which was a step forward for computerization of activities like filing of cases, order sheets, judgments, listing and status of cases. It was formulated with the vision to transform the Indian Judiciary by ICT enablement of courts.[3] The current situation of lockdown amidst pandemic has severely affected the legal fraternity’s working. It has created and widened the scope of virtual courts in the judicial mechanism of the country. The uses of virtual platforms were limited only to the extent that it was used to examine the evidence and record statements when the witness was not able to be present at court. The present situation is acting as a catalyst to augment the realm of digital technology in judiciary. 

To ensure timely delivery of justice and avoid any disruption in the justice mechanism for the citizens of the country, the Supreme Court has been on its toes to explore all the possible ways to set up digital courts and make virtual litigation a reality. A circular issued by the Additional Registrar of the Supreme Court highlights the intent and interest of the apex court in establishing the virtual system for judicial mechanism. It says that “A virtual system of judicial dispensation needs to be readied should the lockdown end. Even otherwise, returning to normalcy after the lifting of lockdown may take time.”[4] The Supreme Court has been taking only the urgent matters for hearing now but plans to include other cases for virtual hearings as well. The development of virtual platforms would necessarily require the courts to boost the available infrastructure to large screens, flawless web applications, and high internet connectivity to avoid any interruption in the hearing process.

The plan of action for virtual courts would also require setting up legislation backed authority to ensure the best of technology, and the best of minds have integrated way of working for the needs of the system without hampering the judicial independence.[5] Any adoption of new technology is successful only when it creates value and increase efficiency for the existing system in place. Understanding the viability of virtual courts would be incomplete without getting to analyze the pros and cons of the project. The implementation of the virtual platforms would not only reduce the costs but also help in speedy disposal of cases.[6] It would help create an efficient judicial system where the productivity of each factor involved in the process increases. It would help in better utilization of workforce and infrastructure and substantially eliminate the scope of malpractices and biasness in the process of justice dispensation. The experience of digital courts would also be more personalized and private as compared to open court hearings. Glancing over the other side of the picture and accessing its application, in reality, there would be numerous challenges in implementation as well, which the judiciary would have to tackle.  

CHALLENGES IN IMPLEMENTATION

The virtual hearings conducted by the Supreme Court are “far from satisfactory” and are “deeply disappointing,” was the opinion conveyed by the President of the Supreme Court Bar Association and Senior Advocate Dushyant Dave.[7] The platform of digital courts might seem to grant wider access to justice, but that would only be possible when every factor involved in the system like advocates, judges, litigants, court staff, and media have means to engage in the virtual hearings. The statistics till 2017 suggest that only 28% of the population has proper access to internet. [8] The practical issues in using the digital platform are far fledged, including connectivity issues, outdated audio-video equipment, absence of power backup, and, most importantly, digital literacy amongst people. Addressing these challenges and reducing the shortcomings would require a massive investment in ICT to meet the needs which would be a significant financial burden.

Apart from technical glitches and economic costs, there would be a considerable amount of legal challenges in execution as well. Primary amongst which would be the chances of malicious witness statement and false evidences. The traditional court system allows the court to examine and evaluate the statements of witnesses along with their demeanor which many a times help lawyers to discover the truth. It would not be possible in case of virtual hearings and there would be ample of opportunity for the parties to testify falsely. The online platform also creates a threat of identity theft by the parties or any third party in regard as there would be comparatively less human supervision as compared to physical hearings.[9] The situation of open access to the hearings would also not be available in these virtual hearings, which used to be present otherwise. The Supreme Court in many instances has held the importance of open access to public for the hearings which upholds the legitimacy and effectiveness of the courts. In the case of Swapnil Tripathi[10], the apex court has also laid down guidelines regarding live streaming of court proceedings for citizens who wish to witness the hearings.

CONCLUSION

In the words of Albert Einstein “In the midst of every crisis, lies a great opportunity.” The on-going situation has turned the way of operation in every field including that of legal fraternity.  It is undoubtedly an opportunity for the Indian Judiciary to encourage and embrace the virtual system for hearing the cases and continue even after normalization. It would be a substantial step in improving the legal profession’s standards and increasing the transparency in the system. To ensure proper execution, it is crucial to draw a well-defined policy framework addressing all the possible issues that might come up in implementation. The current infrastructure would require an upgrade to meet the required needs and provide a seamless experience. To make the process smooth in functioning, the courts need to make use of user-friendly platforms that could be easily accessible to the common man.[11] It is also essential to gain people’s confidence in using digital means for resolving their disputes.

Though there might seem to be several challenges in implementing digital courts, the scope of virtual hearings cannot be completely disregarded. The Indian judicial mechanism might not be entirely ready to incorporate and proliferate the use of virtual platforms. However, it is undoubtedly the time for the Supreme Court and the High Courts to set an example using the same. It is not completely possible to get away with the conventional court room scenes and physical hearing of cases for all practical reasons. The virtual courtrooms cannot replace the open court hearing system in its entirety. The implementation of e-courts and virtual hearings would not be a substitute but a supplement to the existing mechanism in place. It would ensure reduced cost of litigation in long run and would also widen the scope for litigants to access the justice delivery mechanism.[12] It would also create opportunities for the young lawyers to appear and argue the cases independently. Therefore, it would be no wrong to conclude that technology in litigation and judiciary can be implemented in a structured and progressive manner where safeguards and security measures are not compromised.

The author is a third-year law student at the School of Law, Christ (Deemed to be) University, Bangalore.


[1] INDIAN CONST. art 142.

[2] Senior Advocate Arijit Prasad, Virtual Courts – Can they replace open Court hearings?, LAW STREET INDIA (Aug 19, 2020, 5:26 PM) http://www.lawstreetindia.com/experts/column?sid=410.

[3] E-courts: About Us, ECOURTS SERVICES (Aug 22, 2020, 7:57 PM) https://services.ecourts.gov.in/ecourtindia_v6/static/about-us.php#stats_all.

[4] Raghav Ohri, Supreme Court explores ways to set up more virtual courts to ensure justice delivery, THE ECONOMIC TIMES (Aug 22, 2020, 10:18 PM) https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-explores-ways-to-set-up-more-virtual-courts-to-ensure-justice-delivery/articleshow/75239487.cms.

[5] Deepika Kinhal & Ors, Virtual Courts in India: A Strategy Paper, VIDHI CENTRE FOR LEGAL POLICY (Aug 22, 2020, 11:59 PM) https://vidhilegalpolicy.in/research/virtual-courts-in-india-a-strategy-paper/.

[6] R Anand, V Ranganathan, It’s time for a virtual judiciary, THE HINDU (Aug 23, 2020, 12:18 PM) https://www.thehindu.com/opinion/op-ed/its-time-for-a-virtual-judiciary/article31512221.ece.

[7] Bhadra Sinha, Apoorva Mandhani, Virtual courts system is pathetic, justice not being done: SC Bar body chief Dushyant Dave, THE PRINT (Aug 23, 2020, 8:25 PM) https://theprint.in/judiciary/virtual-courts-system-is-pathetic-justice-not-being-done-sc-bar-body-chief-dushyant-dave/437864/.

[8] Aarati Krishnan, How many Indians have Internet?, THE HINDU (Aug 23, 2020, 8:53 PM) https://www.thehindu.com/business/how-many-indians-have-internet/article17668272.ece.

[9] Pramod Kumar Dubey, Virtual Courts: A Sustainable Option?, BAR AND BENCH (Aug 23, 2020, 11:09 PM) https://www.barandbench.com/columns/virtual-courts-a-sustainable-option.

[10] Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 628.

[11] The Big Picture – Virtual Courts and Way Forward, DRISHTI (Aug 24, 2020, 9:42 PM) https://www.drishtiias.com/loksabha-rajyasabha-discussions/the-big-picture-virtual-courts-and-way-forward.

[12] ET Bureau, Virtual Courts must be married to physical courts to improve the justice delivery mechanism: Mukul Rohatgi, THE ECONOMIC TIMES (Aug 24, 2020, 10:51 PM) https://economictimes.indiatimes.com/news/politics-and-nation/virtual-courts-must-be-married-to-physical-courts-to-improve-justice-delivery-system-mukul-rohatgi/articleshow/76343746.cms.

Prison Reforms: A Better Alternative Than Bails

  • Shruti Gupta and Akshat Shukla

INTRODUCTION

The Parliament approved the Citizenship (Amendment) Act (hereinafter, ‘CAA’) on December 11, 2019, extending Indian citizenship to illegal migrants from Afghanistan, Bangladesh and Pakistan and belonging to any of Hindu, Sikh, Jain, Buddhist, or Christian communities. These migrants essentially entered India before 2014 following their religious persecution. Widespread riots broke out in various parts of the country including some regions of Delhi and most aggressive repercussions were witnessed. The concerns of the protestors were varied. Several people, including the students from various universities in Delhi, took to the streets condemning the legislation and challenging the tyranny of the government.

One such revolt was led by Safoora Zargar, a student and the General Secretary of the Congress-backed NSUI’s Jamia unit. Zargar was one among the founding members of the Jamia Coordination Committee, set up in December 2018 in protest of the Citizenship Amendment Act. She was arrested under the Unlawful Activities Prevention Act (UAPA) for her involvement in the Delhi riots, propagating anti-national sentiments by raising ‘Azadi’ slogans inside the Jamia campus.

She came into the limelight because she was in the second trimester of her pregnancy when she was arrested. A lot of human rights activists came to her rescue, considering the ill condition of the prisons in India and her health status.

This blog post seeks to discuss the facts of the Safoora Zargar case from a legal point of view, critically analyze the conditions of prisons in India and compare them with the utopian principles and in furtherance of the same, suggest ways of betterment so that the criminals accused of an offence as grave as ‘Sedition’ need not be granted bail because of diminutive medical facilities.

FACTUAL ANALYSIS

Safoora Zargar is an Indian student activist leader from Kishtwar, Jammu Kashmir. She was arrested under the provisions of the Unlawful Activities (Prevention) Act, 1967 for conspiring to spread hate speech and inciting violence in Delhi.

The judge observed that “As per the provisions of sections 339 of the IPC, causing wrongful restrain to even a single individual is a penal offence. Section 141 clause 3 provides that any assembly of five or more persons is designated as ‘unlawful’ if its common object is to commit any offence.” Thereafter, she was placed in judicial custody. Her lawyers pleaded that she must be granted bail on humanitarian grounds as she was in her 21st week of pregnancy when she was arrested and had some related medical issues. They also argued that it was not safe for her to stay in the Tihar jail especially in times of the COVID pandemic.

However, there were several claims from the police officials that the situation faced by Safoora was not unique. They submitted that as many as thirty-nine deliveries had taken place in Delhi prisons in the last 10 years. Furthermore, it is significant to note here that the Ministry of Women and Child Development had issued all guidelines relating to a healthy diet, proper sanitation facilities, etc. for the benefit of pregnant as well as lactating women prisoners. Despite the opposition by the Delhi police, Safoora was granted bail on humanitarian grounds. This bail indirectly has conveyed that the poor medical conditions of the jail will soon set free the sensitive prisoners convicted for grave offences.

The paradoxical turn that the events took has left us all with one question- Is the tranquility of the country being compromised because of the inhuman conditions of the jails? The achievable goals are far from the sad and grim reality. However, there have been a lot of attempts by judicial authorities to reform the prisoner conditions. The outcome of their efforts is a different investigation altogether.

THE PRISON CONDITIONS AND HEALTHCARE

The case of Safoora Zargar as discussed in the previous section has resurfaced the need for basic amenities and better facilities in the prisons. At the very outset, the bails for medical treatment on humanitarian grounds can be set aside if the healthcare facilities in the prisons render services at par with general hospitals. The need for hearing the pleas and sometimes even granting bails becomes mandatory for the judges because of the ground reality and the consideration of justice, equity and good conscience. Subsequently, questions are raised on the principles of deterrence because such bails can be suggestive of the relaxations available even after the law has been disrupted by the prisoners.

However, the law relating to pregnant women in prisons is settled and the prison reforms are very mildly connected to pregnancy-related circumstances. The same shall be stressed upon after addressing the need for better healthcare facilities in the prisons.

STATUS QUO OF PRISON CONDITIONS

The current condition of Prisons in India requires an overhaul in consistence with the Human Rights jurisprudence. Further, in order to analyze the ground reality, it is important to look at the recent statistics relating to the prison conditions in India. The latest report on prison statistics was released by National Crime Records Bureau (NCRB) in 2018. Chapter 10 of the report deals with the rehabilitation and welfare of the prisoners. Various welfare measures such as Education, Health Care and vocational training programs find a mention in the list and a state-wise analysis has also been provided. It is pertinent to note that reports from only a few states are mentioned under these measures. Contextualizing and limiting it to health care and sanitation, the report has a mention of only five states and one union territory which means that the other states either did not submit the health care report or did not have any significant improvement in procuring medical facilities for the prisoners. Additionally, out of the states which have submitted the healthcare report, only two discuss facilities available for pregnant women. Another worrying factor is the expenditure on medical facilities out of the sanctioned budget. The report states that only seventy-six crore rupees out of the six thousand eight crore rupees were spent on health care which forms only four percent of the total budget.  This shows a grim facet of the prison conditions in India and thus, an appeal for bail by a pregnant lady cannot be said to be an invalid demand.

LAW ON MEDICAL FACILITIES IN PRISONS

There are two legislations that can be referred to in order to address the position of the law. These are,The Prison Act, 1984 (hereinafter, ‘the Act’) and Prison Manual 2016 (hereinafter, ‘the Manual’). The Act has provisions relating to the health of prisoners in Chapter VIII under Section 37, 38 and 39 whereas the Manual deals with the provisions relating to Medical Care, Women Prisoners and welfare of prisoners under Chapter VII, Chapter XXVI and Chapter XXII respectively.

The Act provides for the availability of a medical subordinate for sick prisoners under Section 37. It also requires the Medical Officer to take charge if the state of the prisoner requires attention. Section 38 requires the jailor to keep a record of the treatment given by the Officer or Subordinate. Section 39 requires every prison in India to have a hospital.

The Manual sets out the detailed procedure regarding the medical facilities and it also mentions the staff requirements, types of equipment, roles and responsibilities of all the staff members and the medical officers. This manual was released in 2016 and thus, the conformity with the same can take more time considering the nation-wide implementation. The Manual answers a lot of queries in relation to the Safoora Zargar case as it dedicates a whole Chapter for provisions relating to women prisoners. It clearly provides for the delivery of the pregnant prisoners outside the prison at district government hospitals and there is also a mention of special care and nutrition during pregnancy for the prisoners.

However, an exception to these provisions is the security risk. If the prisoner has committed offences which may cause a threat to the security of the nation, the delivery has to be done in the prison itself. Therefore, it is essential that the prisons must also be equipped well to handle such circumstances. 

CONCLUSION

It is clearly inferred from the discourse that there is a requirement of better medical facilities in the prisons for dire circumstances where the prisoner needs to be treated inside the prison itself. Although the laws provide for all the types of equipment to be made available in all the prisons and also for the professional practitioners to be present in such situations but the ground reality is absolutely different. Considering that the prisons are overcrowded, it becomes difficult for the authorities as well to manage the prisons properly. Thus, the existence of a detailed manual does not address the problems of all the prisoners. Owing to the presence of such fallacies, there is a need to implement the existing guidelines with a view to revamp the medical facilities of the prisons in India and channelize the efforts as such to attain a permanent and viable solution.

The authors are law students at NLIU, Bhopal.

The paradox of Consent & Autonomy: The Data Protection Bill of India & Children

  • Shashwat Bhutani and Pranav Tiwary

INTRODUCTION

With the advent of the internet, easy access to knowledge, information and entertainment has increased manifolds. The development of the internet was coupled with a revolution in the sphere of technology which has made children the technocrats of today. It is estimated that there are some 71 million active internet users in India in the age bracket of 5-11 years as of 2019. As there are two sides to every coin, the increasing use and the overarching reach of the internet poses some serious risks to the data privacy of an individual, especially of the children. Many countries have enacted laws in order to protect data privacy like the General Data Protection Regulation (GDPR) of the European Union and the Children’s Online Privacy Protection Rules (COPPR) of the United States. In India, the Supreme Court in the much-celebrated judgment of K.S. Puttaswamy v. Union of India recognized the right to privacy as a fundamental right by declaring it an inextricable part of Article 21 of the Constitution. This set the wheels in motion of the government machinery which led to the establishment of the Justice B.N. Srikrishna Committee for providing their insights into the issues relating to data protection in India. The suggestions of the Committee translated into the Data Protection Act of 2019. As of July 2020, this bill is pending before the Joint Parliamentary Committee for their approval. Thus, significant inroads have also been made by India to protect data privacy

As such, Data Protection can be divided into two phases:

1) Protection of data at the stage of the collection.

2) Protection of data when in possession of the data fiduciary.

In this paper, the authors will only deal with the first stage i.e. Protection of data at the stage of the collection, in case of Children and the requirement of parental consent.

DECISIONAL AUTONOMY V/S PARENTAL CONSENT

The Supreme Court while delivering the Puttaswamy judgment expounded the scope of the Right to Privacy by stating that the Right to Privacy includes “decisional autonomy”, which means that a person has a right to make an informed decision on whether to enforce his fundamental right to privacy or not. In other words, a person can at his will revoke his right to privacy and allow others to process his data. Thus, the right to privacy forms an exception to the ruling of the Supreme Court in BehramKhurshedPesikaka v The State of Bombay, in which it was held that Fundamental Rights cannot be waived.

The Court, however, while dealing with ‘decisional autonomy’, gave it a universal application. As a result of this, every individual, irrespective of his/her age or mental capacity was allowed to waive off his/her right to privacy. However, an individual, along with his right to privacy, also has a duty to protect his privacy. Adults can reasonably be expected to have the capacity to protect their privacy, however, young children lack such capacity. The situation becomes further complicated in the case of adolescents as they are clearly way more mature than children but are still not grown adults. Thus, on one hand, there exists a need for state intervention in restricting the decisional autonomy and thereby, protecting the Privacy of children and adolescents, however on the other hand, such restrictions must be proportional so that they do not exceed their limits.

Now, in order to protect the Right to Privacy of the people, the Government proposed the Data Protection Bill, 2019. Section 3(8) of the Bill defines a child as a person who has not completed the age of eighteen years. Section 16(1) requires age verification and parental consent before allowing any processing of data of a child. In other words, a person who is below the age of eighteen cannot give his own consent and would require the consent of the parent as he/she has been classified as a child by the Bill.

The Srikrishna Committee while dealing with the age of consent, deliberated on other laws dealing with data protection, namely GDPR and COPPR. Article 8 of the GDPR has fixed the age of consent at 16 years and it has also given the flexibility to the member states of the EU to reduce it up to 13 years of age. Rule 312.2 of the COPPR further relaxes the age of consent by fixing it at 13. In India however, the Committee relied on Section 11 of the Indian Contract Act and fixed the age of consent at 18 years. While acknowledging that it might appear too high in light of the development of the child, the justification given by the committee is consistent with the existing legal framework.

It is submitted that the decision of the board relies less on the practical realities of life but gives credence to uniformity in the law. According to a famous study, the children at the age of sixteen possess psychological maturity similar to that of an adult. The Madras High Court, in the case of Sabari SabarinathanSabarivasan v. State Commission for Protection of Child Rights and Ors., also suggested in a similar vein, to reduce the age of consent under the POSCO Act to 16 years owing to the maturity attained by a child. Thus, where the High Court has opined that the children above the age of 16 years should be allowed to give consent for something as serious as sexual intercourse, so they must also be allowed to give consent when it comes to the processing of their data.

It is further submitted that in the times of rapid technological advancement, the children, especially late adolescents, i.e., ages 16-18, have become increasingly aware of the consequences of their acts on their privacy. Children in their later years of childhood become more mature and responsible while using the internet. They achieve the level of consciousness required to make reasoned decisions and responsible choices relating to their privacy. In many households across the country, it is the children who command greater knowledge in the technological sphere than their parents. Moreover, the increasing debate in recent times relating to one’s data privacy and protection has further educated them on these important concepts.

VALIDITY OF RESTRICTIONS: PROPORTIONALITY TEST

The Supreme Court, in the case of K.S. Puttaswami v. Union of India, gave a four-pointer test (Collectively known as the Doctrine of Proportionality), to determine the Constitutionality of a law which restricts the Fundamental Right to Privacy as:

(i) The action must be sanctioned by law;

(ii)  The proposed action must be necessary for a democratic society for a legitimate aim;

(iii)  The extent of such interference must be proportionate to the need for such interference;

(iv) There must be procedural guarantees against abuse of such interference

Thus, the state law which aims to restrict the Decisional Autonomy vis-à-vis the Right to Privacy, which in our case is the Data Protection Bill, must fulfill the aforementioned conditions. Here, the authors would like to draw attention towards the third point of the proportionality test i.e. “the extent of such interference must be proportionate to the need for such interference” and submit that the interference necessary in case of children between the age of 16 to 18 years is substantially less than that in case of younger children for the simple reason that adolescents are way more mature. Subjecting them to similar restrictions as that of a child would mean curtailment of their decisional autonomy beyond the limit. For example, the restrictions required for a 16-year-old are significantly lower than that of a 10-year-old. Hence, it is submitted that the present Bill is violative of the right to privacy of the late adolescents as it restricts their decisional autonomy beyond necessity.

CONCLUSION

In light of the above arguments, the authors would like to submit that a more pragmatic approach to the issue is required and reducing the age of a child, as provided in the bill, to below sixteen would serve the purpose. This would allow a person to have greater decisional autonomy, by removing the barrier of parental consent, and would also make them more responsible towards their data rights. Furthermore, this would be fairly reasonable and receptive to the reality of today’s times. At the same time, the government should take active steps to educate the children about their right to privacy and data privacy. Since much of the teaching is taking online due to the pandemic, schools can also play a fundamental role in inculcating among children the concepts of privacy and data security. Oliver Wendell Holmes once remarked, “Children are our most valuable natural resource”. Thus, we need to nurture them, today, in such a manner so that they truly become “responsible” digital leaders of tomorrow.

The authors are law students at Faculty of Law, University of Allahabad.

Comparative Advertisement vis-a-vis With Trademark and Copyright Laws

  • Shubhank Suman

Product advertising is one of the best ways to reach the target audience and to provide product information. However, market actors in recent days often employ unethical advertisement strategies to gain a monetary advantage which can detrimentally harm the reputation of their rivals. Comparative advertising is one such type of strategy.

The European misleading and comparative advertisement directive specified comparative advertisement in Article 2(c), which states “comparative advertising means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor”. In simple terms, a Comparative advertisement is a form of marketing in which a business try to present their products and services superior to its rival by comparing its products with the products of rivals and demonstrating various reasons to make the viewers believe why its goods or services are superior to those of its rivals. The two products can be compared directly or indirectly. If the product of a competitor is used directly, then it is a direct comparison and if the product of a competitor is not directly stated then it’s an indirect comparison. Here we need to understand one thing Comparative advertising does not have only bad impacts, initially, it is considered as beneficial to the consumer as it compares the price, benefit, quality, or other merits of different goods, thus enhances consumer awareness. However comparative advertisement to enhance consumers’ knowledge can only be allowed till the advertisement does not contain any false information or false claims against its competitors, otherwise, it would constitute an act of ‘product disparagement’.

Disparagement, According to Black’s Law Dictionary’means to connect unequally; or to dishonor (something or someone) by comparison; or to unjustly discredit or detract from the reputation of (another’s property, product or business); or a false and injurious statement that discredits or detracts from the reputation of another’s property, product or business”. For better understanding, we can refer to the case of Dabur India Limited Vs. Colgate Palmolive India Limited[i] where an actor advertising defendant’s dental paste uses the plaintiff’s (rival) dental paste on the surface of spectacles to show the rival’s product leaves mark on the spectacles in order to prove it less efficient and harmful to teeth. The court in this case observed that defendant’s advertisement is false and detrimental to the reputation of the plaintiff’ hence declared it disparagement. Thus ‘disparagement’ implies false and harmful claims in the advertisement that detrimentally affects the reputation of its rivals. However, when the comparison is not defamatory, libelous, and misleading and is done to highlight the product’s unique features which makes it different from the competitor’s products, in such case it is not referred as disparagement of products. This is because when a comparative advertisement constitutes incorrect facts and claims about the competitor’s, it does not only constitute defamation of competitor’s product but it is also considered as an infringement of the trademark of the competitor. Hence, we can say Indian law permits competitive advertisement as long as the reputation of the rival is not disregarded.

TRADEMARK LAW AND COMPARATIVE ADVERTISING

Trademark basically refers to name and symbol which differentiate one person’s products from another and enables a customer to recognize the products and their sources. Therefore, in the event when an advertiser uses the trademark for comparing its products with its competitor ‘s goods and disparaging them in the process, then such an act committed by the advertiser would not only raise concerns relating to product disparagement but would also raise concerns relating to the infringement of trademarks.

When it comes to comparative advertising and product disparagement, trademark infringement only occurs when the trademark of a rival is used. For instance, we can refer to the case of Duracell International Ltd v Ever Ready Ltd[ii] where an advertisement portraying competitors product without using its brand name and mark is questioned, In the advertisement Ever ready Batteries Ltd portrayed the image of a distinctive Duracell battery, but does not mention its brand name. In this case, the court held that defendant had not infringed the plaintiff’s trademark as there was no mentioning of trademarks. As per section 29 of the trademark act 1999, which deals with comparative advertising,

“A registered trademark is infringed by any advertising of that trade mark if such advertising—

(a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters, or

(b) is detrimental to its distinctive character; or`

(c) is against the reputation of the trademark.”[iii]

Considering the above discussion, it is clear that product disparagement can only lead to trademark infringement when the trademark of competitors is directly used with dishonest intentions. This concept raised certain questions like what would happen when the product of competitors is used in the advertisement but its brand name or mark is made blurred? It is also not clear what would amount to dishonest intentions. For a better understanding of these ambiguities, we can refer to the advertisement of Patanjali Dantkanti where the product of the competitor was used in such a way that it is completely identifiable by viewers, although it’s name and mark was made blurred. In recent days there’s a new kind of product disparagement surfaces into the market, where companies through hoardings started targeting symbolic slogan of competitors to demean their reputation. We can refer an instance of hoardings war between kingfisher and jet airways where jet airways came up with the slogan of WE’VE’ CHANGED and in reply of that kingfisher came up with the slogan of WE MADE THEM CHANGE. Trademark laws in India though do not expressly provide provisions for the protection of slogans but in the case of Gamble Vs. Anchor [iv] the Delhi high court held that symbols are the collection of words and can also be graphically represented hence it is protected under section 2(m) of the trademarks act. However, due to the limitation of direct use of trademark, trademark laws have been unsuccessful in catering these methods of blurring and using symbols for product disparagement. In these cases, it is also difficult to prove the dishonest intentions of the advertiser as per the doctrine of fair use. The Delhi high court in the case of Colgate Palmolive Company & Anr. v. Hindustan Unilever Ltd [v] came up with the concept of an ordinary person test to establish an honest and fair comparison of trademarks. In this test, it is to find out whether a reasonable person is likely to be impacted by the representation expressed in those advertisements and whether such impact induces him not to purchase the plaintiff’s product. However, even after the evolution of this test, it is difficult for the company to assess how product disparagement affects the reputation of the company’s trademark in the market as this test is based on psychological characteristics that are subjective in nature.

Hence from the above discussion we can infer that Comparative advertisement is allowed in India as long as the competitor’s trademark is honestly used however, it is also evident that relation between the trademark infringement and product disparagement is not completely defined and open to wide interpretation.

COPYRIGHT LAW AND COMPARATIVE DISPARAGEMENT

The relationship between Comparative advertisement and copyright laws is one of the least discussed topics in the field of intellectual property. People generally believe the impact of comparative advertisement is only limited to trademarks laws. however, in reality, the advertisement market has been growing day by day, now advertisement is not only limited to physical products but it has also started promoting literary and dramatic works. For reference, we can take the example of the promotion of a movie in malls. Since advertisement has spread its wings to the copyrightable works too, there is a need to make separate disparagement laws for it. For instance, we can take a hypothetical example for better understanding, let’s assume a production house while promoting its movie, use the dialogue of its competitor’s movie to demean it. Similarly, What would happen when a singer while singing, indirectly use the lyrics of his competitors to derogate it. As per present laws, these types of comparison will neither come under copyright infringement nor under product disparagement as copyright laws apply only when a substantial amount of content is copied while product disparagement applies when content is used directly with dishonest intentions.

CONCLUSION

In light of the above discussion, we can say that impact of comparative advertisement on trademarks and copyright laws is not properly defined and is a little bit ambiguous in nature. Since the advertisement ‘s role in marketing is now at its peak, the scope of comparative advertising is needed to be tapped in order to cope up with the current realities as It allows consumers to know the differences between two similar products and enables them to make a sound and rational choice. However, we should also not ignore the product disparagement associated with the comparative advertisement and its impact on copyright and trademark laws. It also needs to be properly analyzed and resolved. Therefore, the need of the hour is to come up with balanced laws that provide a broader scope for comparative advertisement along with maintaining its viability in the current scenario.

The author is a 2nd Year Student of NLUO, Bhubaneshwar.

Endnote –


[i] Dabur India Limited Vs. Colgate Palmolive India Limited2005 (79) DRJ 461.

[ii] Duracell International Inc v Ever Ready Ltd, ( 1989 ) FSR 71.

[iii] Indian Trademarks Act, 1999, Sec 29 cl.(8).

[iv] Gamble Vs. Anchor, (2016) 234 DLT 331.

[v] Colgate Palmolive Company & Anr. v. Hindustan Unilever Ltd, 2014 (57) PTC 47.

Matrimonial Rape of Girl Child: The uncertainty yet to rise again

  • Syed Asif

Introduction:

The uncertainty which existed in the matrimonial rape laws was due to the presence of Exception 2 under Section 375 of IPC which provides immunity to the husband who does sexual intercourse or sexual acts with his spouse who is above the age of 15 years, without giving any regard to her willingness or consent. But there existed no such exception under the provisions of the POCSO Act in respect of the offences of penetrative sexual assault and sexual assault.

The Indian Penal Code creates a hypothetical distinction between a minor girl who is a spouse of the accused and one who isn’t, whereas the POCSO Act does not intend to do so.  All types of sexual acts or sexual intercourse done by the husband with his spouse will be considered as an offence according to the POCSO Act irrespective of the marital relationship between them.

As the provisions laid by the POCSO Act contradicts with the immunity provided by the Exception 2 of Section 375 of IPC, there arises a question whether or not it would be an offence if the husband commits the act of sexual intercourse with his own spouse who is between the age group of 15 to 18 years.

Section 42-A of POCSO Act – A Non-obstante Clause:

The Criminal Law (Amendment) Act 2013 which substituted a completely new definition of Rape in Section 375, took no step for making changes in the exception regarding the sexual intercourse between husband and a minor wife. But the same Amendment Act inserted Section 42-A in POCSO which is a non-obstante clause. Section 42-A of POCSO clearly defines that the provisions of POCSO shall exercise an over-riding effect on provisions of other laws. The Supreme Court in Indra Kumar Patodia and Anr. v. Reliance Industries Ltd. And Ors1 ., held that “when the non-obstante clause does not refer to any particular provision which is intended to over-ride then neither the whole act is excluded nor it stands alone. Where the non-obstante clause is used, the Court has to find out the extent which was intended by the legislature.”

Both the Indian Penal Code and the POCSO Act recognizes a child as “any person below eighteen years of age”. The move of the Legislature by inserting Section 42-A and substituting new definition for Rape but not changing the language of exception clause of 375 in the same Amendment Act, clearly expresses the intention to give immunity to the husband for sexual intercourse or sexual acts with his spouse who is minor. But, when the Section 42-A is given effect to, the sexual intercourse or sexual acts by the husband with the minor spouse, who is also a child of being incapable of given consent will be considered as Sexual Assault or Penetrative Sexual Assault which are punishable under POCSO Act. The question of whether or not the husband can be charged under Section 376 IPC for the offence of Rape remained uncertain until the intervention of the Supreme Court.

Independent Though v. Union of India2: Made Unheard

In 2017, the petitioner challenged before the Supreme Court that the Exception 2 of Section 375 is violative of Right to Equality and Right to Life which is guaranteed by the Constitution. The divisional bench of Supreme Court in their historical judgement observed that Article 21 of the Constitution gives a fundamental right to a girl to live a life of dignity, integrity and with reproductive choice. The girl child shall not be treated as a commodity having no say over her body and no right to deny sexual intercourse to her husband. The Apex Court also held that the artificial distinction created by the Legislature between a married and an unmarried girl has no rational nexus with the objective i.e. maintaining the sanctity of early marriages, violates the Article 14. The Apex Court considered not to declare Exception 2 of 375 of IPC as unconstitutional as it was not a feasible option but they declared Exception 2 of section 375 of IPC to be read down as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”. However, the court did not concern the rape of a married woman who is above the age of 18 years and kept their concern limited to the marital rape of a girl child.

Conclusion:

The Supreme Court’s verdict was acknowledged by the Law Ministry but even the most recent Bill i.e., the Criminal Law (Amendment) Bill 2019 which was introduced in the Rajya Sabha on 12th July 2019, does not proposes to amend the same to clear inconsistency between IPC and POCSO Act regarding the age of Consent. But the decision of the Supreme Court will have prospective effect and the POCSO Act being a special law will have an overriding effect on the IPC. The offenders shall be punished under Section 4, Section 6, Section 8 and Section 10 of the POCSO Act in addition to the Section 376 of the Indian Penal Code and Sections 9 to 11 of the Prohibition of Child Marriage Act, 2006. However, if the Criminal Law (Amendment) Bill, 2019 takes shape of an Act, it being the later Law will prevail over the judgment of Supreme Court and immunity will be given to husband from the charge of Section 376 for committing sexual intercourse with his own spouse.

The author is a 3rd year Student of Lloyd Law College, Greater Noida.

___________________________________________________________

1 AIR 2013 SC 426

2 (2017) 10 SCC  800

Self- Regulation of the On-Demand Video Platforms: Need of the Hour

  • Shubham Mishra

PRELUDE

The creative content in India such as movies or documentaries needs to be certified by the Censor Board. The Censor Board empowered by the Cinematograph Act categorizes the same on the basis of the content as A/UA/U etc. Such regulations cater to the demands of law and order, prevention of public unrest, and curtailment of vulgar content among others. These regulations were imposed by the government because, in the earlier times, the mode of screening was either television or cinema which was in turn state-regulated. However, in the last 10 years or so this entire platform of the showcase of creative content has diversified with the evolution of the internet. The first OTT (Over The Top) platform in India was launched by the Reliance by the name of ‘Bigflix’ in 2008 and since then the industry has witnessed tremendous growth. Indian entertainment industry witnessed a boom particularly in the video streaming services when American giants like Netflix and Prime entered the market. Since then the number of subscribers of these OTT platforms has been on a constant rise.

The on-demand video streaming platforms have spurred the debate of the regulations for these platforms and the extent of such regulations. One needs to understand that these OTT platforms consist of content that has been approved by our board, contents which are approved by the foreign regulators, contents not certified by any regulator, and also content that has been produced especially for these platforms. The questions that need to be asked keeping in mind the reach of the internet and smartphone are: whether it is possible to regulate such on-demand video streaming platforms given their presence is only on the internet and to what extent we should regulate these platforms without curtailing their freedom of expression.

STATUS QUO OF REGULATION FOR OTT PLATFORMS

In 2019, India Today filed an RTI application with the I&B Ministry asking for the status quo of regulation in relation to the OTT platforms. The ministry in its reply made it clear that “the content on online platforms is not being regulated at present”. Now, since it has become amply clear that films and television are more regulated than OTT platforms; the debate for the regulation of the latter has more intensified. An NGO, Justice for Rights Foundation filed a PIL in Delhi High Court in 2019 asking the court to issue directions to the government to regulate these online platforms. The HC whilst dismissing the petition observed that there is no need for exclusive legislation and considered the IT Act to be ‘sufficient’ for such regulation. The petitioner appealed against the dismissal and the case is pending before the Supreme Court.

There exist plenty of legislations that these platforms have to adhere to until a uniform and single law is detailed for which suits the needs and concerns of the industry. Out of the different enactments, section 67A, 67B, and section 69A of the IT Act, 2000 is the most fitting and plausible bit of enactment. Section 67A and 69A empower the government to penalize the ‘intermediaries’ for publishing or transmitting of material containing sexually explicit act, etc., in electronic form whereas giver power to the block any content the government deems inappropriate. Another major legislation is IPC, as per section 295A any deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs are prohibited.

Meanwhile, anticipating the rising discontent against the unregulated OTT platforms, all the major as well as some minor streaming platforms came together and signed a Code of Ethics primarily with the object of self-regulation. However, one major platform i.e., Amazon Prime refused to sign the code citing some reservations.

The questions that arose then were, whether such self-regulation will be sufficient as opposed to specific procedures that need to be followed by the television and the film industry, secondly, what will happen if a platform violates the code or refuses to respect its provisions (similar to the above-mentioned case of Amazon Prime). Thirdly, whether such code will evolve with the needs or its just a ploy to avoid regulation from the legislature.  

REGULATING THE SELF REGULATION- ‘CARROT AND STICK’ MODEL

The Supreme Court in the case of K.A. Abbas v. Union, (1970) 2 SCC 780 held that

….in the matter of censorship, only two ways are open to Parliament to impose restrictions. One is to lay down in advance the standards for the observance of film producers and then to test each film produced against those standards by a preview of the film. The other is to let the producer observe those standards and make the infraction an offence and punish a Producer who does not keep within the standards.

The court back in the 1970s observed the model of self-regulation as a plausible mechanism to regulate the content produced and showcased by the platforms. However, due to factors such as television as the only source of entertainment for masses, low literacy, and protectionist behavior of the state, the idea of self-regulation seemed farfetched at that time. But in this era of the internet and smartphones, the consumer wants an uncensored version of entertainment. Self-regulation of the content on these platforms translates into certain advantages such as creative freedom to the parties, no political or social pressure on the creators, and the most important bein the growth of OTT.

The Internet and Mobile Association of India drafted the code for self-regulation which was signed by almost all the prominent OTT players of the country except Amazon prime in January 2019. The Code basically carved out the content which must not be displayed on their platforms as well as established a two-tier grievance redressal forums- tier 1 would resolve the consumer complaint within 30 days from such receiving and tier 2 (if consumer not satisfied with the tier 1 then could go for tier 2) would then redress the complaint through New Digital Council.

There is no denying that if the government goes ahead with the self -regulation model then it would be based more upon the trust reposed in these platforms by the government for the adherence to the provisions of the code. These OT platforms are the ‘new normal’ which further justifies the need for a self- regulation code. The Delhi High Court was correct when it observed in the above-mentioned case of Justice for Rights Foundation that the IT Act, 2000 is enough to regulate these video streaming platforms and there is no need for exclusive legislation or guidelines for the same.

However, those against the self-regulation model argue that such self-regulating codes are rarely followed due to lack of penalties and the parties usually tweak the provisions very easily in the name of creative freedom. Therefore, according to them, there should be a body mandated by the government to supervise the functioning of these platforms like CBFC.

To pacify all the critics of the self-regulation model, India could adopt the model of Singapore which ‘regulates the self-regulation model’. Singapore’s Info-communications Media Development Authority of Singapore (“the IMDA”), the authority empowered to issue and from time to time review codes of practice relating to programs and advertisements came out with the ‘CONTENT CODE FOR OVER-THE-TOP, VIDEO-ON-DEMAND AND NICHE SERVICES’ in 2018. The code in its spirit mandates the platforms to self regulate themselves by classifying their content on the basis of six ratings provided under the code such as G-General, PG – Parental Guidance, PG13 – Parental Guidance for Children below 13, NC16 – No Children below 16 years of age, etc. and the platforms have to display the rating to aid the consumer to make a more informed choice. Moreover, the platforms cannot stream contents which are banned in some way or other by the laws of the country. A striking feature of the code is that if any platform violates the code then the IMDA has the authority to penalize such platforms including the imposition of financial penalties and withdrawal of the content.

Such a model in the Indian context would authorize the government to formally recognize the code at par with the legislation. The government would then be authorized under the code as well as other legislations such as the IT Act and the IPC to make sure the content on these platforms does not violate the community guidelines as a whole while having a minimum interference inside the on-demand video streaming industry. Self-regulation as a model has proved beneficial in the case of media (press) industry where the Code of Ethics governs the conduct of their members. Adoption of such a model for the OTT platforms would not only empower the platforms but would also empower the government to keep a vigil on them without hampering their freedom of expression at the same time.

The author is a fifth-year law student at RGNUL, Punjab.

A case for an anti-discriminatory maternity relief law to adoptive mothers in India

  • Shivam Tripathi

The Maternity Benefit Act, 1961[i]is the principal legislation governing maternity benefits in India. It was amended in 2017 to promote a holistic approach to maternity benefit in the country. The 2017 amendment[ii] was progressive in that it recognized the rights of adoptive and commissioning mothers[iii] to receive maternity benefits for the first time. However, the act under section 5(4)[iv] states that they are entitled to maternity leave for a maximum period of twelve weeks, less than half the maximum period of twenty-six weeks allotted to natural mothers[v]. In doing so, the legislative policy discriminates between a naturalmother and an adoptive or commissioning mother. Such an exception is not based on any reasonable ground and can result in having extremely adverse effects on the growth and development of the adopted child. So far as the state is concerned, it justifies this discriminatory stance as a mere provision aimed at reducing any undue pressure on the employer.

Section 5(4), of the said Act, also states that adoptive mothers are entitled to maternity benefit only if they are adopting a child below the age of three months, however, there are tangible barriers to adoption laws in India. The procedure is governed by the Juvenile Justice Act of 2015[vi], which categorizes children into three classes: an orphan, an abandoned child, and a surrendered child. In the case of an abandoned child, the police have to trace the parents, and if they are unable to do so within two to four months, only then can the child enter the system of adoption. In the case of a surrendered child, the parents are given sixty days to reflect on their decision – should they decide not to take back the child within the said time, the child is available for adoption. As a result, most children are well above three months of age by the time they are finally available for adoption.

In 2009 the Ministry of Personnel, Public Grievances and Pensions and the Department of Personnel &Training recognized the right of maternity benefits for adoptive mothers through an office memorandum[vii]. The memorandum states that a woman is entitled to maternity leave for 180 days (approx.twenty-six weeks) if a child up to the age of one year is adopted. These same rights were extended to the surrogate and commissioning mothers working with the Indian Government in 2016. This has led to the creation of two different regimes of maternity benefit: one for government employees and the other for the employees governed by the Maternity Benefit Act, 1961.

The courts in India have expanded the scope of Article 21 to the Constitution of India in line with the International Covenant on Economic, Social, and Cultural Rights which emphasizes the right to motherhood and the right of every child for full development.[viii]The Delhi High Court also in Rama Pandey v. Union of India[ix]also came to the conclusion that a woman cannot be discriminated against in the provision of maternity benefits whether they gave birth or obtained the baby through adoption or surrogacy. Further, the court stated that to distinguish between a mother who has a child through surrogacy or adoption and a mother who gives birth to a child, would insult womanhood and their intention to bring up a child as their own – clearly, there are internal juxtapositions even within the nation’s own legal system.

None of the international instruments to which India is a member[x] including the International Labour Organisation, provide for a separate system of maternity benefit to adoptive or commissioning mother. Additionally, Article 5 to the Convention on Elimination of all Forms of Discrimination against Women[xi] (CEDAW), mandates the elimination of discrimination based on the women’s reproductive role and recognizes maternity as a social function. It also reaffirms the women’s right to reproductive choices. Therefore, the Indian stance to provide only twelve weeks of maternity leave to adoptive and commissioning mothers can be said to be in contradiction to its international obligations.

One must highlight the fact that infancy is a crucial time for brain development.[xii] It is important that babies and their parents are supported during this time to promote attachment. Without a stable initial bond, children may suffer low self-esteem and a lack of identity development, which later may affect their academic performance. Adopted babies, in particular, may also face prenatal issues, due to the length of gestation or genetic vulnerabilities, i.e. while pre mature[xiii] babies are prone to chronic health issues, overdue babies[xiv] on the other hand are likely to suffer from behavioral problems, in both the cases extra care and attention is required. Existence of these conditions may adversely affect the child’s ability to adjust and develop a temperament therefore, they need extra support and care from their adoptive parents. Furthermore, while a biological child starts developing a bond with their mothers during the gestation period, the same does not happen with adoptive mothers or mothers who have given birth via surrogacy. These mothers can only start developing such a connection by providing infants a consistent, nurturing, and stress-free environment, and returning to work early impairs the development of such a bond which in turn affects the overall development of the child. Studies[xv] have proven that adoptive children are more susceptible to develop behavior problems, and the main reason is the lack of attachment and weak bonding with the adoptive family. Therefore, establishing a strong natural bond is quintessential for adopted children and children born out of surrogacy. Further, Article 5(b), CEDAW provides that the states are under an obligation to take appropriate actions to ensure full development of every child and that a child’s interest is a primordial condition in all cases.

Thus, it can be inferred that discriminating against a woman on the basis of her reproductive choices, is against the right to life enshrined under Article 21 of the Constitution of India, and it also violates the principles of international human rights law. Despite this, there are some regions like Haryana[xvi] and Chandigarh[xvii] that have adopted laws providing equal benefits to adoptive and commissioning mothers. However, the principle legislation still discriminates between a natural mother and an adoptive or commissioning mother, and as such a distinction should be rectified immediately.

The author is a fourth-year law student at MNLU, Nagpur.


[i]Maternity Benefit Act (1961), https://labour.gov.in/sites/default/files/TheMaternityBenefitAct1961.pdf

[ii]Maternity Benefit Amendment Act (2017), https://labour.gov.in/sites/default/files/Maternity%20Benefit%20Amendment%20Act%2C2017%20.pdf

[iii]Section 3(ba), Maternity Benefit Act, 1961, defines “commissioning mother means a biological mother who uses her eggs to create an embryo implanted in any other woman”.

[iv]Maternity Benefit Act 5 (1961),https://indiacode.nic.in/showdata?actid=AC_CEN_6_6_00024_196153_1517807324059&sectionId=42074&sectionno=5&orderno=5

[v]A natural mother here is referred to as, “a woman who gave birth to her biological child”

[vi]The Juvenile Justice (Care and Protection of Children) Act (2015), http://cara.nic.in/PDF/JJ%20act%202015.pdf

[vii]Enhancement of Child Adoption Leave from 135 days to 180 days and extension of the facility of Paternity Leave to adoptive fathers, Office Memorandum, Ministry of Personnel, Public Grievances and Pensions Department of Personnel Training, http://cara.nic.in/pdf/circular/Adoption%20leave.pdf

[viii]DevshreeBandhe v. Chhattisgarh State Power Holding Company Ltd., 2017(5)C GLJ340 (India).

[ix]Rama Pandey v. Union of India, 2015 SCC Online Del 10484 (India).

[x]India & ILO, Ministry of Labour & Employment, (Apr. 16, 2020) https://labour.gov.in/lcandilasdivision/india-ilo.

[xi]Convention on Elimination of all forms of Discrimination against Women art. 5, Dec. 18, 1979, https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx.

[xii]Hanan El Marroun, Post-term birth and the risk of behavioural and emotional problems in early childhood, 41 International Journal of Epidemiology, 773, (2012).

[xiii]What health challenges do preterm babies face?, World Health Organisation, (May 10, 2020) https://www.who.int/news-room/q-a-detail/what-health-challenges-do-preterm-babies-face.

[xiv]Adoption and stages of development, Child Welfare Information Gateway, (Apr. 16, 2020) https://www.childwelfare.gov/pubPDFs/f_stages.pdf.

[xv]Nicholas Zill, The Adoptive Difference: new evidences in how adopted children perform in school, Institute of Family studies (Mar. 28, 2018), https://ifstudies.org/blog/the-adoptive-difference-new-evidence-on-how-adopted-children-perform-in-school

[xvi]Grant of Maternity Leave to Commissioning Mother and Surrogate Mother, Government of Haryana, Finance Department, http://www.finhry.gov.in/FileUploads/Upload_d264f89d-b318-44fe-b0e4-290dcdd27aa6_.PDF.

[xvii]Grant of Maternity Leave to Commissioning Mother and Surrogate Mother, Chandigarh Administration, Department of personnel, http://chandigarh.gov.in/pdf/dop20-2269.pdf.

Inclusion of the death penalty in light of the POCSO (Amendment) Bill, 2019

  • Khushboo Sharma

Introduction

Crime against children has always been a reason for great distress. In India, the protection of child rights is regulated by the Protection of Children from Sexual Offences Act 2012[hereinafter referred to as the POCSO Act]. It is gender-neutral legislation which defines a child as any individual below 18 years of age. The POCSO Act seeks to protect children from acts involving sexual assault, including penetrative sexual assault, sexual harassment, use of children for pornographic purposes, and trafficking of children for sexual purposes.

On March 13, 2020, the center notified a new set of rules to effectively implement the amendments made in 2019to the POCSO Act. A few of the amendments include the provision of ‘Death Penalty’ as a punishment. In this article, the analysis focuses on how the effort to make the act more stringent by the inclusion of the death penalty, could prompt to be a fallacious argument in respect to act as a deterrent and to meet the standard of justice to reduce sexual offenses. For that purpose, the article has been divided into four parts. The first part discusses the point of debate. A critical analysis of the legal aspects involved in the issue has been provided in the second part which has been further divided into sub-parts that deal with the socio-legal aspect of the death penalty, the procedural lacuna involved, and the deterrent effect specifically in cases that fall under POCSO. The article concludes with certain suggestions that should be taken into consideration by the respective bodies.

POINT OF DEBATE

The government pronounced that 2019 amendments were introduced to discourage the trend of child sexual abuse and creating a deterrent effect by incorporating stringent penal provisions. This came up by looking at the tremendous rise in the child crime rates, especially after the Kathua gang rape and murder case. Thus, it was followed by an objective to safeguard the interest of vulnerable children in times of distress and protect their safety and dignity. As a consequence, the minimum punishment was changed to 20 years and the death penalty was introduced among other changes aimed at reducing the number of cases relating to child sexual abuse. While we are discussing the death penalty it is important to talk about Section 6 that allows a death sentence for all types of aggravated penetrative sexual assault by a person.

The Union justified the punishment by referring to the judgments of the Supreme Court wherein the court had held in Macchi Singh and others v State of Punjab and Devender Pal Singh Bhullar v State, N.C.T. of Delhi And Anr that the death penalty could be awarded only in the “rarest of the rare” cases. The intention behind the bill is creditable, however, it fails to consider the fact that the introduction of the death penalty in cases of child sexual abuse is a drastic step and might not lead to a deterrent effect.

REASONS WHY THE PROVISION OF DEATH PENALTY COULD BE COUNTER-PRODUCTIVE?

In the opinion of many, the death penalty serves as a retributive and deterrent measure and underlines the ‘tit for tat’ principle. One cannot deny the fact that the death penalty restricts people from committing offences at some level. However, the above stated seems to be bizarre when we look upon the reasons stated below.

SOCIO-LEGAL ASPECTS

The report of National Crime Records Bureau (NCRB) stipulates that in cases falling under POCSO, 94.6% of all the cases of sexual harassment and rape of children are committed by people who are known to the victim. This implies that the prospect of the death penalty being imposed might weigh upon the child who may not be comfortable with sending a known person to the hangman’s tree and this may prove to be a substantial burden on the child’s mind. Additionally, it is significant to argue here that the death penalty of the convict might give a fragmentary relief to the victim since a lot of victims go through the post crime victimization in society. This refers to the society’s contemptuous actions involving the “victim-blaming” phenomena. This forces the victim to go through another treachery of atrocious mental abuses, especially by its own people.

India is a comparatively socially backward country with most of its population having an orthodox mindset and to preserve the family’s reputation, family members could forbid children from exposing the offender.This might severely impact the number of cases being reported. The death penalty compounds opposition from family members as the family might not want that for a known person. A National Law School, Banglore survey depicts that in 67.5% cases, the alleged victim and the family members turned hostile and in mere 26.7% cases, these people agreed to testify against the accused. On another note, Advocate Shailabh Kumar suggests that the provision of the death penalty raises the probability of the accused murdering the victim to avoid getting caught.Thus, turning the case from “rape and leave” to “rape and murder”.

PROCEDURAL ISSUES

On another note, the provision of the death penalty fails to consider the fact that the inclusion of the death penalty would eventually weaken the child-friendly procedures. Section 33(2), the POCSO Act requires the special public prosecutor to convey to the special court the questions to be put to the child during the inquiry. However, the said provision is not duly recognized by the defense counsel and the child continues to be questioned by them. Therefore, the defense counsel to get away with the death penalty would tend to ask direct questions which might be embarrassing. It would add to the already existing trauma of the child.

Section 28(2) of Crpc, provides that to grant the death penalty, the order has to confirmed by the high court. This implies that even if the convict does not prefer an appeal then also the case would go to the high court. It has been observed that in 28.9% of the cases to which the trial court awarded the death sentence, only 4.3% of those cases qualified for the same when confirmed by the high court. This indicates that it would only lengthen the trials further. Also, courts look for stronger evidence when it comes to ordering the death penalty because the judges themselves do not agree to send someone to the gallows in the majority of the cases.This was reiterated in Raju v. State of Haryana wherein the SC commuted the death penalty to life imprisonment stating that it does not fall under the ‘rarest of the rare’ case. It can be asserted from the above-mentioned instances that the lengthy process of law provides adequate time to the accused to intimidate the victim and thus, to succeed in an attempt to backtrack their complaint which further leads to a reduction in the reporting of the cases.

DETERRENT EFFECT

Certainty plays a significant role in deterrence than severity. It specifically means that it is the certainty of being caught that averts an individual from doing wrong and not the stringency of a punishment. Incarceration as a method for incapacitation is when an individual is restricted to commit any crime by putting him behind the bars whereas when the individual apprehends the consequences of a crime on being caught before even committing it and thus, abstains from committing crimes in future, this is incarceration as deterrence. Indian laws manage to achieve the former but not the latter.

The Justice Verma Committee that was constituted after the brutal Delhi gang rape of 2012 also opposed the inclusion of the death penalty as a provision stating that the “death penalty to act as a deterrent is a myth”. Moreover, none of the studies that have been carried out documenting the relationship between the death penalty and crime rate have been able to show that the death penalty has proven to be more effective as a deterrent than any other punishment. This was reiterated in Triveniben v. State of Gujarat. Moreover, after the addition of the death penalty, punishments of lesser magnitude no longer feel like severe enough to the offenders, in this manner, leaving no sentiment of regret on their part and consequently, prompting the expansion in the crime percentages.

CONCLUSION`

The law must aim to pay heed to the fact that the vulnerabilities of a child differ from age to age. A child matures differently in terms of mental and psychological advancements. Thus, the mental capacity of an infant differs from that of a pre-teen to older adolescents. Therefore, the impact of the harm and abuse caused to them varies. The law must consider these factors and avoid treating 0-18 years as an unvarying group. Since the cause of rape is variable and subjective, the short term amendments could lead to some short term reduction. However, to get impactful results, the government must acknowledge the loopholes in enforcing the law and should take adequate action to close the widening gap between principle and practice rather than diverting the rage of the public.

The author is a first-year law student at NLIU, Bhopal.