Necessity for the Enactment of Space law in India

space laws in indiaINTRODUCTION

 

One of the most challenging and interesting areas of law is the jurisprudence of space activities. Space, as a subject, a domain and a paradigm, fundamentally challenges collective human consensus worth several hundreds of years on subjects as elemental as sovereignty and ownership. What compounds the problem is that addressing space from a policy-making perspective involves not just domestic in-house legislative and executive exercises but also that such exercises must constantly engage, influence and ratify international regulations and processes. And as a space lawyer, one must constantly unlearn and let go of the limiting influences of conventional legal training while also retaining the fundamental enablers of conventional jurisprudence that makes a space-law perspective possible.

The US has adopted a new law that recognizes mining of space bodies by private players. In many ways, this is an extension of a vision that dates back to the Commercial Space Launch Act, 1984, which enabled the private sector to assume operations in space and left NASA to focus on what it does best: research and development. Elon Musk’s SpaceX and similar success stories are a byproduct of a robust relationship that the Americans built with the private sector to leverage opportunities in space. This is in stark contrast to the pre-infantile state of play for the private sector in India.

The Indian Space Research Organization (ISRO) has done a phenomenal job of putting India on the roster of elite space faring nations. ISRO itself is a testament to perseverance and ingenuity, a fact borne out by the growth the organization has achieved despite the limiting effects of international sanctions. Today, it deserves the independence that it enjoys – bolstered by the success of its Polar Satellite Launch Vehicle (PSLV). In fact, there would be no private sector in space in India at all without an ISRO that inspired the youth of this country to look skyward and beyond. So the context is simply this: how can the private sector now participate and enhance the greatness of ISRO?

 

Only Pessimism for the Private Sector

While ISRO remains the central player in this scenario, the story remains incomplete until we understand that technology and space-based services have now taken center stage in achieving better governance and quality of life on Earth. Take for example, the proposed Goods and Services Tax regime that aims to translate the entire tax collection, compliance and filing systems to an electronic and Internet-enabled system. When the system rolls out, India will need to ensure rapid percolation of the Internet into every nook and corner, an effort that can be made easier with high-throughput satellites, which are a hot trend elsewhere but not yet in India for unknown reasons. From healthcare to education, satellites will define India’s growth in the Information Age. But the need for such space-based services is growing faster than the pace at which our government seems able to sate it, thus necessitating a larger collaborative effort.

The regulatory framework for space activities is defined by a combination of policies, procedures and guidelines of the Government of India. The salient ones among them are:

A policy framework for satellite communications in India (a SATCOM policy for short)
Norms, guidelines and procedures concerning allowing Indian parties to provide services, including up linking of TV signals with Indian satellites (SATCOM norms)
Remote Sensing Data Policy, 2011
The technology transfer policy of ISRO
What these policies and guidelines show is that between Antrix, ISRO and the Department of Space, the government appears to be an operator as well as a regulator, resulting in a virtual monopoly. This obvious conflict of interest was left unnoticed for a while, as space wasn’t an area of focus for the private sector. But now, with the emergence of private players, this is a concern. The discretion vested with the committees and bodies under the SATCOM norms don’t come with deadlines prescribed for authorizing the launch of satellite systems, nor is there an explicit policy framework for the exercise of such discretion – which potentially violates Article 14 of the Constitution. This has led to poor investor confidence and very little traction for a lot of space startups in the country (which do exist, by the way). And let’s not even get started about spectrum and orbital-slot allocations, which will likely continue to be victims of domestic and international bureaucracy. In short, pessimism is the order of the day for the industry.

While that’s the implication for the private sector, there’s an identifiable implication for the nation as a whole. A lack of rationalization in transponder leasing (a byproduct of the conflict of interest mentioned above); poor governance in the geographical information domain (or no governance, considering we’ve no known geographical information policy); the monopoly over remote sensing data generated by Indian satellites; and rigid tech. transfer policies pose not just financial losses to the government but also losses on the optimization front – from the way education is delivered to the masses to better urban planning. And this is besides the fact that we could generate employment and retain talent in India if we can ensure a lucrative space for the private sector in this area. Last but not the least, NASA and the European Space Agency have both demonstrated that innovation is better achieved through a robust engagement with the private sector, which hopefully will provide much needed fodder for our collective thought processes on the subject.

 

A REVOLUTIONARY ROAD AHEAD

So how can space legislation address these issues? To begin with, legislation – in the form of a law enacted by the Parliament – enjoys a level of stability that a policy or guideline can never achieve. That by itself will demonstrate the fact that the country has the vision to back up its capacity. It will of course have to answer whether or not we are serious about giving opportunities to entrepreneurs who were provoked into dreaming about opportunities in space by our own space agency’s achievements.

Should we intend to respond positively, then the legislation will have to make some radical changes. First, it must separate the regulatory functions of the Department of Space and ISRO, and vest the functions with an independent body. And this body must not only determine applications for launch of space assets but also the management of derivatives of the Indian space program and its initiatives. It must provoke the question of whether ISRO must focus exclusively on what its key strengths are – research and innovation – and leave the burden of day-to-day operations for the private sector to leverage. The need to address these topics is urgent as a legislation either enabling or disabling private participation of space activities will, if nothing else, provide closure to the young people dreaming about making a livelihood by taking India to infinity and beyond.

Finally, there are some ancillary issues: liability for space debris, national responsibilities for monitoring space activities arising out of its territory or its mandate, cross waivers in case of failures during launch of payloads into space, and so forth. These questions must be addressed parallel to the question of whether we must allow an industry to surface in the Indian space domain at all. Then again, we must also remember that as more of Earth’s resources are depleted, and as we struggle to figure out how to address the problems of the future, the answer lies with a good space law. Falling behind in this race could threaten the country’s prestige as well as our ability to safeguard the security of our descendants in a way that our current Weltanschauung cannot fathom. As our Parliament enters into its next session, one hopes that the needs of the future and the spirit of adventure will drive space policy as opposed to – in the words of V from V for Vendetta – the security of the familiar and the tranquility of repetition.

 

Legality of AD Block Software in Websites

ad block software

Kaushik Moitra
BRIEF BACKGROUND:

The judgment of the Hamburg District Court in Germany in the case of
Eyeo GmbH, a Germany based start-up firm that developed the software
“Adblock Plus”, which has garnered increasing popularity over the years
for blocking several advertisements on websites that internet users find
intrusive and annoying, created quite the stir in the internet media.
Adblock Plus is an open-source content-filtering and advertisement
blocking extension developed by Eyeo GmbH. Adblock Plus, without the
license from the host website, inadvertently blocks certain contents of the
website thus making unpermitted changes in website and also denying
the right of the owner of the copyrighted website to produce derivative
works/adaptations of his original work. There are many other similar
content-filtering software namely Privoxy, AdFender among many others.
The features of these ad-blocking software are mostly similar and the
examining the legality of these software involves the same questions.
However for the purpose of this article we shall refer to AdBlock Plus
being the most known content blocking software.
This is not content-filtering software’s first tryst with controversy. Before
this German case came into the forefront earlier this year, sometime in
2007 the “ad block conflict” found its roots in this American website
www.jacklewis.net where the owner deliberately blocked access of his
website to Firefox users who had installed advertisement blocking
software in their computers, which ensued the creation of the website,
“www.whyisfirefoxblocked.com” where the reasons for doing the same
was cited by the owner.

This practice of blocking or avoiding advertisements by viewers is not a
new phenomenon, and it is in prevalence since entertainment started
reaching people’s homes through television. This activity of people
consciously opting to avoid television advertisements is christened as
“Commercial Skipping”.
LEGALITY OF COMMERCIAL SKIPPING:
While India has still not seen any cases as far as commercial skipping is
concerned, the courts in the United States have been quite the
playground for advertisers and people involved in the business of
developing technologies which give the viewers the power to avoid
advertisements. The first such case which happened in the US is the case
of Sony v. Universal Studios Inc2
. In this case, Sony came up with the
technology known as Video Cassette Recorder (VCR). This VCR provided
an option to the users to record the television program and skip the ads
during playback. Television and movie studios attempted to argue that
Sony should be held contributory liable for copyright infringement for
manufacturing video cassette recorders, which, by virtue of enabling
users to make video cassette recordings of television
programs, would also enable them to skip over the commercials during
playback. The Supreme Court, however, rejected this argument, holding
that Sony could not be held contributory liable
for a function of the VCR that was secondary to its legitimate, noninfringing
purpose-the ability to engage in time-shifting and record a
television program for the purpose of watching it at a later date.
While this case belonged to the era VCR, with the advancement of
technology the same problem arose even in the digital era. This time the
technology in question was the Digital Video Recorder (DVR) and the two

2
464 U.S. 417 (1984)
companies which faced the wrath of advertisers were TiVo Inc. and
ReplayTV Inc3
.
ReplayTV had plans to include in its DVR, a feature called Commercial
Advance, which would allow viewers to automatically skip commercials. It
was this feature that was the basis of a lawsuit against ReplayTV, brought
by media companies seeking to challenge the legality of commercialskipping.
It should be noted that the notable feature of ReplayTV’s
Commercial Advance technology was that it caused the DVR to
automatically delete commercials during recording, so that during
playback, a viewer would not see any advertisements at all during a
commercial break.
The Court in Sony conceded that users may choose to fast forward
through commercials during playback, and that making such a choice was
not unlawful in that it did not alter or violate the copyright of the program
as it was being broadcast. The basis of the argument against ReplayTV
relied on an assumption made by the Sony Court: that systematically
fast-forwarding through commercials was ‘too tedious’ an activity to truly
pose a threat.” Here, the plaintiffs argued that the Commercial Advance
feature made commercial skipping exponentially easier and therefore
should be regarded as an infringing activity. They further argued that
ReplayTV’s features attack the fundamental economic underpinnings of
free television and basic non-broadcast services. Advertisers will not pay
to have their advertisements placed within television programming
delivered to viewers when the advertisements will be invisible to those
viewers.
Although ReplayTV, Inc. case was ultimately settled out of court, the
result of the intended litigation was that ReplayTV agreed to abandon its
Commercial Advance feature. Though Tivo developed a product that had
many of the same features offered by ReplayTV, Tivo escaped formal

3
Paramount Pictures Corp. v. ReplayTV, Inc., No. CV 01-9358FMC(EX), 2002 WL 32151632 (C.D. Cal. May 30,
2002)
litigation by offering to work with advertisers to study the ways in which
its users utilized the commercial-skipping features included in the DVR.
An analysis of these cases makes one thing very clear, advertisers do not
have an issue when viewers of their own volition skip ads, and in any case
all of us do it at our homes all the time. Many of us consciously plan our
activities, when our favourite show is on air, to do them during the ad
breaks. So where exactly does the problem lie for the advertisers? The
problem for the advertisers lies in the availability of such a technology at
the disposal of the viewers which enable them to completely cut off the
advertisements from their viewing experience.
COPYRIGHT INFRINGEMENT OF A WEBSITE:
With the internet now becoming the major source of entertainment and
information for the people at large, advertisers are bound to flock to the
internet to advertise their product and services. The problem in the
cyberspace starts with availability of technology which completely
eliminates advertisements from their web browsing experience. The
availability of ad-blocking software which gives the internet users the
necessary tool to avoid advertisements in-toto is often seen as an
infringement of the copyright of the webmaster.
This was the basis for cases which recently happened in Germany against
Eyeo, along with having some claim under the German Competition Law
as well.
The German case brings light to the issue the importance of Commercial
Skipping in the internet age and this makes for an interesting debate as
to how would commercial skipping would be treated under the Indian
Copyright Act, 1957.
But before delving into the Indian system let us first have a look at how
the commercial skipping is looked at in the copyright regime of US as well
as few European countries. The number of consumers using ad blocking
software worldwide has increased 41% year-on-year to 198 million
monthly active users, according to a report published Monday by PageFair
and Adobe.4
U.S. POSITION:
The current argument against commercial-skipping is based on a theory
of copyright infringement. In WGN Continental Broadcasting Co. v. United
Video, Inc.5
, the court provided the basis for commercial-skipping as a
violation of copyright:
“A copyright licensee who ‘makes an unauthorized use of the
underlying work by publishing it in a truncated version’ is an infringerany
‘unauthorized editing of the underlying work, if proven, would
constitute an infringement of the copyright in that work similar to any
other use of a work that exceeded the license granted by the
proprietor of the copyright.”6
The Seventh Circuit further refined its understanding of the (il)legality of
commercial-skipping in In re Aimster Copyright Litigation7
:
“commercial-skipping amounted to creating an unauthorized
derivative work, namely a commercial-free copy that would reduce the
copyright owner’s income from his original program, since ‘free’
television programs are financed by the purchase of commercials by
advertisers.”
8
Building upon past jurisprudence of the Courts, the plaintiff needs only to
prove the following elements for copyright infringement:
(1) that the Plaintiff owned the copyrighted material; and

4
“The Cost of Ad Blocking”, Ad Blocking Report by PageFair and Adobe; available at
https://blog.pagefair.com/2015/ad-blocking-report/
5
693 F.2d 622 (7th Cir. 1982)
6
Id. at 625
7
334 F.3d 643 (7th Cir. 2003)
8
Id. at 647-48
(2) that the Defendant infringed on at least one of the exclusive
rights of the copyright owner. 9
Here, the websites affected by AdBlock Plus would allege the individual
user is creating an unauthorized derivative when he uses an ad blocking
software to remove advertisements from the layout of the website. To
prove contributory copyright infringement, a plaintiff would have to
further prove the defendant’s (AdBlock Plus’) behaviour satisfies the
following three elements: participation in the infringement, intent to
induce to infringe, and production of the means of infringement.
Satisfying these elements would not be difficult; satisfying the first
element would only require the plaintiffs to identify a direct infringer who
used AdBlock Plus to block ads from appearing on the Web site. Finding
an individual who accessed the Web site in question while using AdBlock
Plus should not be overly hard, given the number of people who have
reportedly downloaded and installed AdBlock Plus. Next, the plaintiff must
show that the manufacturers of AdBlock Plus had knowledge that its
product was being used to infringe upon another’s copyright. If Adblock
Plus had a significant non-infringing use, a plaintiff would need to show
that not only did Adblock Plus have constructive knowledge that its users
were using the product for an infringing purpose, but that it induced
individuals to use its product to infringe. However, because the sole
purpose of Adblock Plus is to block advertisements from websites, thereby
creating an unauthorized derivative, the Court in Grokster10 intimated
that a showing of inducement may not be necessary, and proof of
constructive knowledge would be sufficient. Given the popularity of
Adblock Plus-it was included in PC World’s 100 Best Products of 2007 listit
is likely that the creator is aware that there are people who are using
the program to block advertisements.

9
Perry v. Sonic Graphic Sys., Inc., 94 F. Supp. 2d 616, 618 (E.D. Pa. 2000)
10 Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913
Lastly, a plaintiff alleging contributory infringement would need to show
that AdBlock Plus provided the means to infringe by making its software
available to users. Plaintiffs may encounter some
difficulty in asserting that the creator of Adblock Plus has provided users
with the means to use the product, because though the plugin is available
for free, it is only available for download via the web browsers. Courts
may have difficulty concluding that Adblock Plus provided the means for
infringement when the product is only available through another’s Web
site. On the other hand, however, a court may analogize these facts to
the circumstances of A&M Records, Inc. v. Napster11
, wherein the court
found Napster materially contributed to copyright infringement of music
MP3s by providing support services, without which “Napster users could
not find and download the music they want with the ease of which
defendant boasts.” Without holding Mozilla liable, a court may determine
that by developing the plugin and making it available for download
through Mozilla, AdBlock Plus met the requirement for providing the
means for infringement. Although the case for contributory copyright
infringement presents its own stumbling blocks for a website wishing to
allege infringement, there are other elements of a basic copyright claim
that a Web site may find hard to satisfy as well. An inability to satisfy
these initials elements may mean that a Web site is never
able to advance its case to the next step of proving contributory
copyright infringement.
First, as mentioned above, before a website would be able to pursue an
action for contributory liability, the Web site would first have to show that
copyright infringement occurred. To succeed, the website owner would
need to first show that the website was copyrighted. This seems an
obvious first step, but depending on the type of Web site seeking to
initiate a claim, this may be a significant stumbling block. It is noteworthy
that the U.S. Copyright Office has specific criteria for the types of

11 239 F.3d 1004, 1020 (9th Cir. 2001)
websites to which it will grant a copyright. Websites that are not static,
but are not updated frequently either, may find copyright protection
elusive as regulations require each site revision or update to be filed as a
new registration.
However, assuming that the website is able to obtain a copyright, the
next hurdle would be to show that any advertisements (or space reserved
for advertisements) included in the website ought to be covered by the
copyright. There are several obstacles to proving this element. The U.S.
Copyright Office clearly distinguishes between a computer code that is
used to format the text and design of a website and the content
generated by that code. The code can be copyrighted, while the content
cannot. So the implications for this limitation are that websites may not
be able to successfully argue that the space set aside for advertisements
is copyrightable. Though the criteria needed to portray AdBlock Plus as a
contributory copyright infringer appears to be straightforward, or even
simple, the difficulties in proving the Web site has the appropriate
standing to make such a claim may prove to be an insurmountable
hurdle.
GERMAN/EUROPEAN POSITION:
The German Court ruled in favour of the software firm Eyeo GmbH,
defendants therein, stating that it did not violate any competition or
copyright laws, and rejected the arguments that were bought forth by the
plaintiff publishers. Similar suits were filed against the defendants in two
respective courts – Munich and Cologne, which engendered the same
result, where the Courts upheld the contention of privacy of the internet
users and their liberty to freely browse through the internet without
interferences.
This judgment has set a certain bar in Germany, and also in Europe
where users have applauded the decision of the courts.
INDIAN POSITION:
In India, the position is a little different. The websites in general are not
granted any protection but once the originality criterion is satisfied it is
granted protection as a “literary work”. Websites are granted protection
according to the content which they host on their website, hence, for each
of the content they have to file separate copyright application. It can
further be said that the advertisements make a part of the website and
are presented in the form decided by Registrant of the website to the
user. Any alteration, derivation or modification in the website by blocking
the advertisements may be deemed as an infringement of the product of
the website owner/registrant rights over its website. Thus commercial
skipping may tantamount to infringement in India. The Plaintiff will have
to establish the contribution of AdBlock Plus in the infringement as the
primary infringer shall be the user who willingly used the features of the
AdBlock Plus as under other jurisdictions.
CONCLUSION
However there being a lack in judicial precedents in India about
commercial skipping it would be wrong to make pre-mature assumption
about the interpretation by Indian judiciary of the provisions of laws.
Nevertheless, considering international concepts it would not be wrong to
judge in the favour of the AdBlock Plus for the sake of liberty of browsing
through the internet freely.

KYC NORMS : AN Overview

KYCINTRODUCTION

Way back to the second half of 2002, it is then RBI directed all the banks to implement the

KYC guidelines for all the new accounts that will be further getting into operation.

The main purpose of KYC norms was to restrict money laundering and terrorist financing when it was introduced in the late 1990’s in the United States. The US has has made changes in it’s major legislations-Bank Secrecy Act etc to make these norms effective.[1]

The KYC guidelines are issued by the RBI under Section 35A of the Banking Regulation Act,1949 and under Rule 9(14) of Prevention of Money laundering(Maintenance of Records) Rules,2005. Any bank contravenes with the said guidelines or any non-compliance would attract penalities under the Banking Regulation Act,1949.

However the guidelines issued by the RBI to the financial institutions or any other  will be subject to change by way of a Master Circular. The latest Master Circular that is available is  “DBR.AMLBC.No.15/14.01.001/2015-16”.

Objective of the KYC Norms : The main idea behind implementing KYC Norms is to avoid terrorist financing activities . It also helps the banks to know or understand who their customer is in order to avoid future risks.

Compliance Measures :  In the year 2002,when these were initially introduced there has been a lag in its implementation and hence there were certain measures adopted by the RBI for all the existing accounts too : Some of them includes :

1. Public Notice in  the national newspapers

2. Zonal Customer Identification

3.Individual notices to the customers with non-compliance

4. And a final notice in the newspapers for ensuring proper documentation within 7days from that particular day.

 

KYC Policy :

Now that banks or financial institutions has a facility to frame their KYC policies, but then the key criteria cannot be missed out.

1.Customer Acceptance Policy

2.Customer Identification Procedures

3.Monitoring of transactions

4.Risk Management [2]

All the above are nothing but due diligence measures that are generally taken by any bank/financial institution in order to make sure that no fraud takes place with respect to the transactions being operated in the bank. Proper scrutinization of documents that are provided by the customer will stand as a support to meet the objective of the KYC Norms.

Procedures again vary from a normal customer that one gets to know ,  non face-to-face customers(i.e customers who access through Internet banking/Mobile banking),additional documents maybe called upon for a better understanding of such customer.

Non-resident accounts can also be operated and special procedures are involved for he same(for foreign students).

Freezing of Accounts on Non-Compliance : Any  non-compliance thereof can lead to freezing of such account. However it is mandatory that a 3 month notice shall be served to the concerened customer detailing the subject-matter. A partial freezing is made on such account in which a 3months notice is served. If still the account tend to be in non-compliance after 6months , all the debits and credits would be disallowed  i.e the account cannot be operated further. In such a situation it is at the bank’s discretion to close such accounts. However reasons for such closure are to me mentioned clearly.

When the bank believes the account to be lacking a true identity, i.e in case of a suspicious account the bank should file a Suspicious Transaction Report(STR) with the Financial Intelligence unit-India under the Department of Revenue ,Ministry of Finance, Government of India.

 

 

 RISKS  INVOLVED  IN  KYC

The risk that is involved with the implementation of KYC can be categorised into 5 heads :

1.      Reputational risk

2.      Operational Risk

3.      Risks that arise legally

4.      Financial Risks

5.      Concentration Risk

1)Reputational Risk : Terrorist often resort to identity theft. The 9/11 terrorists had opened 14 accounts with a Florida Bank ,using false social security numbers and other documents.[3] Such instances cause immense damage to the reputation of that bank/financial institution. Future customers may avoid making business with that bank as such. Hence a reputational risk is always in place for bank and proper compliance with the norms must be taken care of.

2)Operational Risk : Operational risk is defined as the risk of loss resulting from adequate or failed internal processes ,people and systems or from external events.[4] To avoid these operational risks, as most of the operative part is in the hands of the bank staff, training must be provided on a strict pace. When every employee is aware of the basic issues to be taken care of, the risk may inturn decrease thereof.

3)Risks that arise legally :  As and when any business would attract penalities and adjudications on involving in illegal activities, its the same with the banks too. Not complying with the KYC Norms would lead to heavy penalties.

4)Financial Risks : There are financial risks involved in not complying with the KYC Norms because if so a bank gives a loan to a customer , and at the same time failed to identify the customer as such it is difficult for the bank to retrieve the load bank and may lose financially.

5)Concentration Risk : Banks usually tend to concentrate more so on a particular geographical area, or involving more into a particular kind of business activity in order to attract customers. Sudden downfall of suck concentration again leads to risk to the banks.

 

MAINTANANCE  OF  RECORDS & DOCUMENTS  OBTAINED  FROM CUSTOMERS :

As earlier mentioned , documentation plays a pivotal role in identifying a customer as such. However the usual documentation we find slightly varies in accounts that are related to Companies ,Partnerhip firms, Trust Accounts , Accounts of unincorporated associations, Accounts of proprietors so on and so forth.

For Individual Accounts :

The proof of identities that are required in opening an individual account are PAN card, Passport(if available), Voters Identity , Any Job cards containing the Adhaar Number. These are mandatory .Any kind of utility bills or letter duly signed by any authorised Gazzette officer can be given if the bank insists.

Accounts for Companies :

 Generally for  Companies it would be Current accounts and the documents that had to be submitted while opening an account are : Certificate of Incorporation, Memorandum of Association , Any resolution that is made by the Board of Directors or say any officially valid document with respect to the managers,officers, employees etc.

Accounts for Partnership Firms :

A deed of partnership, registration certificate or any official documents that holds good are to be submitted.

Trust Accounts :

Trust Deed and a registration certificate.

Accounts of unincorporated Associations :

As a registration certificate cannot be obtained in case of unincorporated associations any resolutions made or any official document made with respect to the company or any document which in turn dictates the companies legal existence.

Proprietors Accounts :

All the certificates relating to tax liability, VAT ,registration, licence certificates, Sales or Income Tax returns need to be submitted in case of any proprietorship accounts. Extra diligence is involved here since proprietors hold huge amounts and operate huge sum transactions which has to be looked upon. Activity proofs are a must.

 

AXIS, ICICI AND HDFC BANKS WERE MADE LIABLE FOR THE BREACH OF KYC NORMS :

In the year 2013 all the three banks have been fined by the Reserve Bank of India with  5crores, 1 crore and 4.5 crores respectively in violating certain KYC Norms.

The RBI further detailed that in its investigation it found that the three top private banks in the country were not adhering to certain know your customer (KYC) norms and anti money laundering (AML) guidelines like risk categorisation and periodical review of risk profiling of account holders. The central bank also found that the banks were not filing cash transaction reports (CTRs) in respect of some cash transactions and were selling gold coins for cash beyond 50 thousand rupees.[5]

RBI also stated that the internal operations of the three banks were not to the mark.

The PAN numbers and where from the funds are being deposited in the accounts of the customers are all not taken care of by the banks –said the Central Bank.

However in this case no prima facie evidence has been obtained that an act of money laundering took place.

RBI gave these directions as suggestive measures stating : incentives should not be given to any operational managers of the banks and the information in regard to a customer must be taken seriously when informed by the other banks especially by the co-operative banks, since small account holders rests with the co-operative banks rather than the commercial banks.

 

 

CONCLUSION

The bank acting in compliance with the KYC Norms are undoubtedly benefitting the customers from a rural background.

Initially there wasn’t any awareness regarding these norms (be it employees or customers), it is mostly the weaker sections of the society who lack awareness. A flexibility is then provided to submit the concerned documents slowly so that the news reaches to a larger group. Employees were also being trained today in almost all the banks for a better work management as such. So an admission can be made that the negativity involved has almost reached to zero since today even the weaker sections provide all the required document due to the ongoing awareness that is created by every single bank that is in existence today. Boards with respect to the norms are displayed in banks even in the regional language and there are people or employees themselves detail regarding these if any person is unaware of.

“ KYC Guidelines are customer-friendly and the notion that KYC Norms are an impediment for  people from a rural background in availing banking facilities is not correct”.

Also to target the small account holders , especially the migrant workers RBI in the year 2013 relaxed the rules. It now abolished the lengthy procedures that banks insist upon to act on par with the KYC Norms by allowing just one identity proof in order to open an account. This mainly benefits the workers and daily workers since that it is really difficult for them to obtain two different proofs for identity and address as in most of them would be migrating from once place to another and so this incentive made a relief . Self-attestation with a credit limit of approximately 1lakh for an year and a minimal withdrawal of Rs.10,000 is also made available to the people with certain economic and social backgrounds.

 

BIBILIOGRAPHY

 

TEXT SOURCES :

1.      Risk management in electronic Banking, concepts and best practices – Jay Ram Konda Bagil (2007),Publisher – John Wiley & Sons (Asia) Pvt Ltd

 

WEB SOURCES :

1.      m.rediff.com/money/2006/sep/12guest.htm

2.      www.wikinvest.com/stock/HDFC_Bank_LTD_Ads

 

NEWSPAPERS :

1.Financial Express ( Article dated June 11th 2013 ,Column -Fe Beaureu-)

[1] m.rediff.com/money/2006/sep/12guest.htm (last visited on 2016-02-28 , 11:01pm)
[2] See generally “Master Circular-RBI/2015-16/42 , DBR.AML.BC.No.15/14.01.001/2015-16
[3] “Risk management in electronic banking:concepts and best practices, Page 199,200, Publisher-John Wiley &   Sons (Asia) Pvt Ltd –  Jaya Ram Kondabagil (2007)
[4] www.wikinvest.com/stock/HDFC_Bank_LTD_Ads ( last visited on 2016-02-29 , 9:40pm)
[5]See generally “RBI fines Axis, ICICI and HDFC bank for KYC Norm breach”- Financial Express (Dated June 11th 2013)- Column :Fe Beaureu

Whether laws of Sedition have any place in a Democracy or should it be Repealed ??

 

seditionKanhaiyya Kumar, young student leader from JNU Delhi, hailing from a poor family in Bihar is the latest victim of the charge of sedition. News reports suggest that the police has no record to show that he shouted any anti-national slogans. Yet he was arrested and put behind the bars. During the past two years or more intellectuals, artists and social activists have been mindlessly charged with sedition for saying things the establishment is not in favor of. Kanhaiyya’s arrest has now triggered a public debate on this much-misused law.

Sedition is an offence defined in Section 124 A of the Indian Penal Code, 1860. As per this Section, anyone who brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government by words spoken or written or by signs or by visible representation or otherwise is guilty of the offence of sedition. The definition is so exhaustive that it does not leave out of its purview any possible mode of self-expression, simply by using the words “or otherwise”. The punishment for the offence of sedition is life imprisonment but lesser punishment can also be awarded.

Out of the three explanations added to the Section, two seek to clarify that expressing disapprobation of the measures of the Government or administrative action is not an offence. But any attempt to excite contempt, hatred or disaffection will definitely make such permissible disapprobation also liable to be punished. It is the ordinary police constable who will in the first person decide whether a brilliant speech made in a seminar by eminent author or a great cartoon made by a cartoonist will cause disaffection, contempt etc. towards the government. In an age of unenlightened patriotism and lumpenisation of politics the danger to the life and liberty of Indian citizens who speak out against the government of the day is too real, as is evident from some of the recent happenings.

It is therefore necessary to seriously debate sedition, and its impact on the fundamental rights of citizens. Pandit Jawahar Lal Nehru called sedition an obnoxious piece of legislation. But his government and all the subsequent governments retained it and misused it. Such hypocrisy of Indian politicians kept alive this colonial law which should have been repealed by the first Indian Parliament.

Sedition was brought into the Indian penal code in 1870, almost 10 years after the code was enacted. Its object was apparently to silence the Indian voice. Section 124A was adopted by the council of Governor General of India, which met in Shimla on August 2, 1870. The remarks made by J. Fitz James Stephen while presenting the bill before the council about the scope and extent of sedition are instructive. “Language temperate in itself and justifiable as far as the express meaning of its terms went might, if addressed to an excited mob be the clearest proof of an intent to produce forcible resistance to authority. While genuine criticism had nothing to fear from the proposed section, persons seditiously disposed must not suppose that they could evade its provisions by confining themselves to what under other circumstances and in other persons might be genuine criticism”. It is an outrageous statement of the law on sedition which in simple language means that sedition could be slapped on persons of seditious disposition. Honorable Fitz James Stephen was adding a new dimension to Anglo-Saxon jurisprudence by suggesting that a man’s disposition will also make him liable under sedition.

After sedition was introduced in the code the first major case that was tried under it was Lokmanya Tilak’s case[1] in which the clearest exposition of the law was made by Strachy J. While stating the law before the jury he said “the offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial”. This statement of law was later approved by the privy council.

Another landmark case in which the scope and nature of sedition as defined in the Indian code was explained was Sadashiv Narain Bhalerao’s case[2]. The privy council held “but even if he (accused) neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government still if he tried to excite feelings of enmity to the Government that is sufficient to make him guilty under the Section”.

 

 

DISAFFECTION TOWARDS THE GOVERNMENT

Thus the law of sedition which has emerged from the decisions of the privy council during the pre-independence era is for that a simple statement or a speech which can excite “disaffection” towards the Government the maker of the speech or statement is liable to be prosecuted under Sec 124A. No incitement to violence or insurrection is necessary. The implication of this statement of law is that after the Constitution came into force, Section 124 A of the IPC would become violative of the fundamental right to freedom of speech and expression. Thus sedition, a draconian law of the colonial era would have been out of the penal code for good.

However this did not happen because in 1962 the Supreme Court upheld the constitutional validity of Sec 124A in the Kedarnath case.[3] During the colonial period sedition was considered a black law and was used extensively against the leaders of the freedom movement. Mahatma Gandhi, Bal Gangadhar Tilak and many other leaders were put behind bars for many years under this law. But the constitution bench of Supreme Court painted it white and presented it before the free Indians as a necessary law in the interest of the survival of republic.

The constitutional validity of sedition was upheld by the Supreme Court on the basis of an interpretation of Sec 124A in line with the decisions of the federal court in Niharendu’s case[4] and certain English cases. In this case Sir Maurice Gwyer, CJ stated the law on sedition in the following words “public disorder or the reasonable anticipation or likelihood of public disorder is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency”. In line with this statement of law by the federal court, the Supreme Court of India held that as public disorder and violence are the essential ingredients of sedition it is a law made in the interest of public order under Article 19 (2) and hence is a reasonable restriction on the fundamental right of freedom of speech.

However this statement of law made by the federal court was clearly overruled by the Privy Council, the highest appellate court and held that the law declared in Tilak’s case was the correct law. But the Supreme Court of India opted for the view taken by the federal court and not by the Privy Council because it wanted to uphold the validity of sedition as a reasonable restriction on the fundamental rights. By its own admission the statement of law made by the Privy Council in Tilak and Bhalerao and other English cases was sound but adopted the federal court view because it wanted the law of sedition to be in the penal statute. The following observations of the Supreme Court in Kedarnath Singh’s case indicate why it wanted sedition to remain on the statute book: “In other words any written or spoken words etc. which have implicit in them the idea of subverting Government by violent means which are compendiously included in the term revolution have been made penal by the section in question”. Obviously the court wanted to stop revolution in India by upholding the validity of sedition!

The Court also weakened the base of its own judgment by observing that the federal court took a view different from the Privy Councils because the latter’s various judgments were not shown to the federal court. In other words the federal court would have gone with the Privy Council on the interpretation of sedition had its views been available to it. So there was nothing inherently infallible about the view taken by the federal court which our Supreme Court adopted as the most acceptable legal decision. Further, Article 19(2) permits reasonable restrictions on the freedom of speech. if the law imposing reasonable restriction is made in the interest of public order , it is constitutionally valid. This is the ground on which Kedarnath Singh judgment upheld the constitutional validity of sedition. There is an obvious fallacy in this argument.

The Court itself says that the words “in the interest of public order” are of the widest amplitude. “Reasonable restriction” and “words of widest amplitude” are mutually contradictory. Restrictive provisions can’t be so open ended and wide. They need to be narrow and restricted. The highest law court of the time had declared that public disorder or violence is not an essential ingredient of sedition under the Indian code. This being so it should be assumed that sedition is not a law enacted in the interest of public order and hence outside the protective cover of Article 19(2).

 

SUPPRESSING THE INDIAN VOICE

The Colonial Government in India inserted Sec 124A in the code for the purpose of suppressing the Indian voice. So the law of sedition was made stringent which was different from the English law. The English law did not define sedition but the Indian code defined it. The privy council therefore said that if the law defines the offence in clear terms the courts should go by that definition and as per the text of Sec 124A a simple speech or statement which can cause disaffection towards the government and nothing more shall bring it within the mischief of sedition. This is how the law of sedition was always enforced in India. So with the coming into force of the Constitution, Section 124A would have become an unreasonable restriction on the freedom of speech and thus would have become violative of the fundamental right. By retaining it in the code, free India’s governments repudiated the concept of human rights evolved through long years of freedom struggle.

 

Every strong criticism of the government, a minister or a chief minister or the prime minister causes some amount of disaffection towards them. When people read about the corrupt deeds of a government what exactly is the feeling that is generated in them? Is it contempt or hatred or a feeling of love and sympathy for such a government? In a democracy the people change such governments through vote. No democratic government can afford to charge people with sedition and put them behind bars for saying things which they have the freedom to say. So the offence of sedition has no place in a democracy. That is why the British repealed it in their own country even though they had brought in the toughest variety of sedition when they ruled India. But democratic India even with all its bitter experience of the operation of this law by the colonial government retained it and used it liberally against its people taking refuge under a Supreme Court decision validating it.

There is an urgent need to review this judgment of the Supreme Court and declare sedition unconstitutional or alternatively, parliament should repeal it at the earliest. If someone raises slogans against India or endangers the security of India he should be dealt with under appropriate laws. The law of sedition is too colonial, too dangerous and too destructive of the basic freedoms of the people. It should be scrapped.

[1] Queen Empress v. Bal Gangadhar Tilak (1897) ILR 22BOM
[2] King Emperor v. Sadashiv Narain Bhalerao (1947) LR 74 IA 89
[3] Kedarnath Singh v. State of Bihar AIR 1962 SC 955.
[4] Niharendu Dutt Majumdar v. King Emperor (1942) FCR 38

Necessity for the enactment of Space Law in India

Space LawINTRODUCTION

One of the most challenging and interesting areas of law is the jurisprudence of space activities. Space, as a subject, a domain and a paradigm, fundamentally challenges collective human consensus worth several hundreds of years on subjects as elemental as sovereignty and ownership. What compounds the problem is that addressing space from a policy-making perspective involves not just domestic in-house legislative and executive exercises but also that such exercises must constantly engage, influence and ratify international regulations and processes. And as a space lawyer, one must constantly unlearn and let go of the limiting influences of conventional legal training while also retaining the fundamental enablers of conventional jurisprudence that makes a space-law perspective possible.

The US has adopted a new law that recognizes mining of space bodies by private players. In many ways, this is an extension of a vision that dates back to the Commercial Space Launch Act, 1984, which enabled the private sector to assume operations in space and left NASA to focus on what it does best: research and development. Elon Musk’s SpaceX and similar success stories are a byproduct of a robust relationship that the Americans built with the private sector to leverage opportunities in space. This is in stark contrast to the pre-infantile state of play for the private sector in India.

The Indian Space Research Organization (ISRO) has done a phenomenal job of putting India on the roster of elite space faring nations. ISRO itself is a testament to perseverance and ingenuity, a fact borne out by the growth the organization has achieved despite the limiting effects of international sanctions. Today, it deserves the independence that it enjoys – bolstered by the success of its Polar Satellite Launch Vehicle (PSLV). In fact, there would be no private sector in space in India at all without an ISRO that inspired the youth of this country to look skyward and beyond. So the context is simply this: how can the private sector now participate and enhance the greatness of ISRO?

 

Only Pessimism for the Private Sector

While ISRO remains the central player in this scenario, the story remains incomplete until we understand that technology and space-based services have now taken center stage in achieving better governance and quality of life on Earth. Take for example, the proposed Goods and Services Tax regime that aims to translate the entire tax collection, compliance and filing systems to an electronic and Internet-enabled system. When the system rolls out, India will need to ensure rapid percolation of the Internet into every nook and corner, an effort that can be made easier with high-throughput satellites, which are a hot trend elsewhere but not yet in India for unknown reasons. From healthcare to education, satellites will define India’s growth in the Information Age. But the need for such space-based services is growing faster than the pace at which our government seems able to sate it, thus necessitating a larger collaborative effort.

The regulatory framework for space activities is defined by a combination of policies, procedures and guidelines of the Government of India. The salient ones among them are:

A policy framework for satellite communications in India (a SATCOM policy for short)
Norms, guidelines and procedures concerning allowing Indian parties to provide services, including up linking of TV signals with Indian satellites (SATCOM norms)
Remote Sensing Data Policy, 2011
The technology transfer policy of ISRO
What these policies and guidelines show is that between Antrix, ISRO and the Department of Space, the government appears to be an operator as well as a regulator, resulting in a virtual monopoly. This obvious conflict of interest was left unnoticed for a while, as space wasn’t an area of focus for the private sector. But now, with the emergence of private players, this is a concern. The discretion vested with the committees and bodies under the SATCOM norms don’t come with deadlines prescribed for authorizing the launch of satellite systems, nor is there an explicit policy framework for the exercise of such discretion – which potentially violates Article 14 of the Constitution. This has led to poor investor confidence and very little traction for a lot of space startups in the country (which do exist, by the way). And let’s not even get started about spectrum and orbital-slot allocations, which will likely continue to be victims of domestic and international bureaucracy. In short, pessimism is the order of the day for the industry.

While that’s the implication for the private sector, there’s an identifiable implication for the nation as a whole. A lack of rationalization in transponder leasing (a byproduct of the conflict of interest mentioned above); poor governance in the geographical information domain (or no governance, considering we’ve no known geographical information policy); the monopoly over remote sensing data generated by Indian satellites; and rigid tech. transfer policies pose not just financial losses to the government but also losses on the optimization front – from the way education is delivered to the masses to better urban planning. And this is besides the fact that we could generate employment and retain talent in India if we can ensure a lucrative space for the private sector in this area. Last but not the least, NASA and the European Space Agency have both demonstrated that innovation is better achieved through a robust engagement with the private sector, which hopefully will provide much needed fodder for our collective thought processes on the subject.

 

 

A REVOLUTIONARY ROAD AHEAD

So how can space legislation address these issues? To begin with, legislation – in the form of a law enacted by the Parliament – enjoys a level of stability that a policy or guideline can never achieve. That by itself will demonstrate the fact that the country has the vision to back up its capacity. It will of course have to answer whether or not we are serious about giving opportunities to entrepreneurs who were provoked into dreaming about opportunities in space by our own space agency’s achievements.

Should we intend to respond positively, then the legislation will have to make some radical changes. First, it must separate the regulatory functions of the Department of Space and ISRO, and vest the functions with an independent body. And this body must not only determine applications for launch of space assets but also the management of derivatives of the Indian space program and its initiatives. It must provoke the question of whether ISRO must focus exclusively on what its key strengths are – research and innovation – and leave the burden of day-to-day operations for the private sector to leverage. The need to address these topics is urgent as a legislation either enabling or disabling private participation of space activities will, if nothing else, provide closure to the young people dreaming about making a livelihood by taking India to infinity and beyond.

Finally, there are some ancillary issues: liability for space debris, national responsibilities for monitoring space activities arising out of its territory or its mandate, cross waivers in case of failures during launch of payloads into space, and so forth. These questions must be addressed parallel to the question of whether we must allow an industry to surface in the Indian space domain at all. Then again, we must also remember that as more of Earth’s resources are depleted, and as we struggle to figure out how to address the problems of the future, the answer lies with a good space law. Falling behind in this race could threaten the country’s prestige as well as our ability to safeguard the security of our descendants in a way that our current Weltanschauung cannot fathom. As our Parliament enters into its next session, one hopes that the needs of the future and the spirit of adventure will drive space policy as opposed to – in the words of V from V for Vendetta – the security of the familiar and the tranquility of repetition.

 

Privy Council : An Overview

Privy CounciINTRODUCTION

If we overview the history of Indian Legal System, it clearly reveals that the Indian Legal System is more or less based on the English Legal System. In fact, the systematic development of Indian judicial institutions, judicial principles, laws etc. has occurred during British regime itself. Besides this, the British regime in India has also developed a hierarchical judicial system in India. Accordingly, the highest judicial authority was conferred on a body of jurists, popularly called as ‘Privy Council’. It has played a significant role in shaping the present legal system in India. The same is discussed as under.

 

Origin and establishment of Privy Council

As it is an accepted fact that, every political system develops for itself a certain sort of legislative, executive and the judicial machinery for its smooth working and administration. Establishment of Privy Council was with the same objective. The Privy Council was  the judicial body, which heard appeals from various courts of the British colonies including India.

The origin of Privy Council can be traced back to the Norman Period of English. At the beginning of 11th century, the Normans introduced a Central Government in England for controlling their executive, legislative as well as judicial Departments. There was a Supreme Federal Council of Normans. It was known as ‘Curia’ and it acted as the agency of Normans to rule England. Through it the whole administration in England was controlled. However, gradually with the passage of time, Curia gets divided into ‘Curia Regis’ and ‘Magnum Concillium’. Out of them, Magnum Concillium was to deal with executive matters whereas Curia Regis performs judicial functions.

The Curia Regis was a small body consisting of high officials of the State, members of the Royal household and certain clerks chosen by the Crown itself. Their duty was to advice the King in matters of legislation and administration and to deliver a justice. In fact, the Curia Regis acted as a final Appellate Court for England and English Empire. Gradually, the Curia Regis came to be considered as the advisory body of the King performing most of the vital functions in the field of judicial administration. Finally, during the regime of Henry II, there was a tremendous increase in the Judicial Functions of Curia Regis and it lead to the formation of two different Common Law Courts in England. They are:

1.      King-in-Parliament i.e. Court of House of Lords

2.      King-in-Counsel i.e. Court of Privy Council.

The former became the highest Court of Appeal for the Courts in England while the later acted as the highest Court of Appeal for all British Possessions and Settlements beyond the seas. In this way, the Privy Council was established during the middle of 16th century. It thus acted as the advisory body of the King with regard to the affairs of the State. Headquarter of the Privy Council was at Landon and its powers were implemented through the means of royal proclamations, orders, instructions etc.

 

Composition of Privy Council

As far as India is considered, the Privy Council acted as an appellate body since 1726 with the establishment of Mayor’s Court in India. Earlier, the Privy Council used to do its work by means of a system of committees and sub-committees. However, the committees did not have permanent existence and membership and mostly members were the persons with little judicial experience. Naturally it affected the administration of justice. In 1828, Lord Bourgham criticized such a constitution of Privy Council keeping in view the extent and importance of the appellate jurisdiction of Privy Council. Subsequently, in 1830 he became the Lord Chancellor and during his regime, the British Parliament enacted the Judicial Committee Act, 1833 in order to reform the constitution of Privy Council. In this way, officially the Privy Council was created on 14th Aug. 1833 by the Act of the Parliament. The Act empowered the Privy Council to hear appeals from the courts in British Colonies as per the provisions of the Act. Accordingly under this Act, the quorum of judicial committee of Privy Council was fixed to be four. It composed of Lord President, Lord Chancellor and other Chancellors holding judicial offices. This quorum was reduced to three in 1843. The recommendations to the Crown were given by the majority of quorum. Thereafter, by means of the Appelate Jurisduction Act, 1908 this membership of the judicial committee was extended. It also empowered His majesty to appoint certain members not exceeding two. These were nothing but the judges of High Court in British India. Thus some of the members of the Privy Council were the persons versed in Indian Laws.

 

Appeals from Courts in India to the Privy Council

 

This can be discussed under following sub-headings.

a)    Charters of 1726 and 1753

In the Indian Legal History, the Charter of 1726 granted the right to appeal from the Courts in India to Privy Council. The said Charter established three Mayor’s Courts at Calcutta, Madras and Bombay. The provision was made as to first appeal from the decisions of Mayor’s Court to the Governor-in-Council in respective provinces and the second appeal from to the Privy Council in England. Where as the Charter of 1757, which re-established the Mayor’s Courts reaffirmed the said provisions of Appeal to Privy Council from Mayor’s Courts.

 

b)     The Regulating Act, 1773

This Act empowered the Crown to issue a Charter for establishment of Supreme Court at Calcutta. Thus the Charter of 1774 was issued by the Crown to establish a Supreme Court at Calcutta and it abolished the respective Mayor’s Court. Section 30 of this Charter granted a right to appeal from the judgments of Supreme Court to Privy Council in Civil matters if following two conditions were followed;

i.            Where the amount involved exceed 1000 pagodas

ii.             Where the appeal is filled within six month from the date of decision.

In the same way, the Act of 1797 replaced the Mayor’s Court at Madras and Bombay with the Recorders Court and provided for direct appeals from these Courts to the Privy Council. Thus the right to appeal from King’s Court to Privy Council was well recognized. Besides this, there were Company’s Court i.e. Sadar Diwani Adalat and Sadar Nizamat Adalat. They also recognized the right to appeal to the Privy Council from their decisions. Accordingly the Act of Settlements, 1781 provided for right to appeal from Sadar Diwani Adalat at Calcutta in Civil matters.

 

c)     Appeals to Privy Council from High Courts

Under the Indian High Courts Act, 1861 the high Courts were established at three Provinces. It was the amalgamation of King’s Courts and Company’s Courts. This Act provided for the right to appeal from High Courts to Privy Council from all of its judgments except in Criminal matters. In addition to this, there was a provision of Special leave to Appeal in certain cases to be so certified by the High Courts.

 

d)    Appeals from Federal Court in India to Privy Council

The Government of India Act, 1935 provided for the establishment of Federal Court in India. The Federal Court was given exclusive original jurisdiction to decide disputes between the Center and constituent Units. The provision was made for filing of appeals from High Courts to the Federal Court and from Federal Court to the Privy Council. The Federal Court also had jurisdiction to grant Special Leave to Appeal and for such appeals a certificate of the High Court was essential.

 

e)     Abolition of jurisdiction of Privy Council

In 1933, a white paper was issued by the British Government for establishment of the Supreme Court in India so as to here appeal from Indian high Courts. It was the first step in avoiding the jurisdiction of Privy Council. After Indian independence, the Federal Court Enlargement of Jurisdiction Act, 1948 was passed. This Act enlarged the appellate jurisdiction of Federal Court and also abolished the old system of filing direct appeals from the High Court to the Privy Council with or without Special Leave. Finally in 1949, the Abolition of Privy Council Jurisdiction Act was passed by the Indian Government. This Act accordingly abolished the jurisdiction of Privy Council to entertain new appeals and petitions as well as to dispose of any pending appeals and petitions. It also provided for transfer of all cases filed before Privy Council to the Federal Court in India. All powers of the Privy Council regarding appeals from the High Court were conferred to the Federal Court.

Thereafter with the commencement of the Constitution of India in 1950, the Supreme Court has been established and is serving as the Apex Court for all purposes in India. It hears appeals from all the High Courts and Subordinate Courts. With this the appellate jurisdiction of the Privy Council finally came to an end.

 

Role of Privy Council

The Privy Council has contributed a lot in development of Indian Legal System. It served a cause of justice for more than two hundred years for Indian Courts before independence. As far as the judicial institution is concerned, the Privy Council was a unique and unparallel among all the Courts round the world. It set the task of ascertaining the law, formulating legal principles, molding and shaping the substantive laws in India. It also helped in introduction of the concept of ‘Rule of Law’, on which we have setup the whole philosophy of our ‘Democratic Constitution’. Besides the Privy Council also lead to the introduction of Common Law in India, which forms the basis almost all present Indian laws.

The contribution of Privy Council in personal laws like Hindu Law and Muslim Law is also noteworthy. It acted as a channel, through which English legal concepts came to be assimilated with the body and fabric of the Indian law. it always insisted on the maintenance of the highest standards of just and judicial procedure, especially in the field if criminal justice. In this way; the decisions of Privy Council have enriched the Indian jurisprudence in many respects. Its contribution to the statute law, personal laws, and commercial laws is of great importance. Thus during the period of 1726-1949 and specifically after 1833 and onwards, the Privy Council has played a magnificent role in making a unique contribution to Indian laws and the Indian Legal System. The fundamental principles of laws as laid down by the Privy Council are considered as path finder for the Indian Courts still today.

At present also, the Privy Council command a great respect among Indian lawyers, judges as well as Indian public as the highest judicial institution. Some of the principles laid down by the Privy Council are still followed by the Supreme Court of India. The view taken by the Privy Council is binding on the High Courts in India till the Supreme Court has decided otherwise. One of such instance can be given in the form of ‘principle of absolute liability’ as propounded by the Supreme Court in the historic olieum gas leak case. Thus as a whole, the contribution of Privy Council is considered as remarkable for the development of Indian Legal System and Indian Judicial Administration. It has played a great unifying role in shaping divergent laws in India.

Drawbacks of Privy Council

In spite this contribution of Privy Council, it suffered from following drawbacks: –

 

1)      For long, it was staffed by Englishmen only, having no knowledge of Indian laws.

2)       The location of the Privy Council was in England far away for common man in India making it disadvantageous.

3)       The subjection to the jurisdiction to foreign judicial institution i.e. the Privy Council was considered as a symbol of slavery.

4)       All this put the poor man in India in difficult situations for seeking justice.

 

 

 

CONCLUSION

From the above discussion, it reveals that the Privy Council has rendered a meritorious contribution in the development of Indian legal system and judicial institutions. It introduced many fundamental legal principles in Indian legal system. It shaped the judicial institutions in India. As a whole its role is very significant in developing the legal system in India as it exists presently.

 

Khap Panchayats : An Overview

Khap PanchayatsINTRODUCTION

In India, the Panchayati Raj system was introduced with the aim of decentralization and democratization.  Yet there remain certain mysteries.  Khap Panchayats, the self proclaimed courts of caste lords in a village, enjoy full legitimacy and authority among the section of their caste as custodian of honour.  It is through them that most regressive views are sought to be implemented.  It is very distressing to note that in times when people chat via 3G technology, Indian society has regressed to the Dark ages.

What Ambedkar prophetically said in the year 1948 is the currently the state of affairs in India’s villages where institutions such as Khap/Caste panchayat not only exist and flourish but also being nurtured by political class of our country.  Villages in India forms the social unit if society which requires profound social change.  However, the Indian society in general and its countryside in particular, as it today never witnessed the unfolding of process of enlightenment.  The project of enlightenment in this country was a nonstarter from the day one.  Hence, as the consequence we will see continuance of these caste panchayats to follow a certain code which is unwritten law for them, through which they save and defend their honour and so called culture.

Khaps panchayats are active in various states of the country especially Haryana.  Khaps of these states are notorious for their outlandish edicts like declaring married couples siblings, ostracising families and such other atrocious acts.  The reason behind all these atrocious verdicts is to save the so called honour and culture of the society.  The Question here arises: who are Khap Panchayats? Who gave them right to kill in the name of honour…?  These Khaps are an affront to human rights along with social evils like dowry and child marriages and need to be dealt strongly as possible just the country fight naxals or ultras.

 

What Is Khap Panchayat?

Panchayat actually implies gathering of five reasonable and regarded older folks picked and acknowledged by the town group. Normally, some relentless and effective persons, were pressured open accord and with no race assemble together and announce themselves ‘the lord of the station’, in this way constituting the standing panchayats.

The “Khap” is an old idea which has composed references found once again from the Apparatus Vedic times. There are fundamentally social-political gatherings, which as a rule contain the upper rank and elderly men who are united by topography and standing. The word Khap is most likely gotten from Latin word “corpus” which implies an association of person. Subsequently khap is a term for a social political gathering and utilized as a part of land sense.

Khap was an arrangement of social organization and association in the republics of North-western states like Haryana, Uttar Pradesh and Rajasthan in India since old times. The Khap comprised of a unit of 84 towns.

 

Method of reasoning Behind Khap Activism:

The reason overseeing these khaps is that diverse social orders have distinctive traditions or arrangement of preclusions, as per which a male or a female can’t have marriage with another male or female of other rank. They take after the tenet of endogamy-it implies the guideline confining marriage to individuals from the same tribe, town, standing, sub-position or other social gathering. A great many people believe that position framework is a static unbending component of Hindu society and it can’t change. This sort of intuition offers quality to the arrangement of khap panchayats in our general public.

 

Origin of Khap Panchayat:

The precise source of khap panchayat is till date not known but rather is accepted to begin in 600 AD. In antiquated times, amid the time when man was carrying on with a traveling life, towns are being shaped at a fast rate and man was heading towards human progress and better ways of life. All through the most recent few thousand years the general public of the Indian sub mainland, was composed in different structures, tribal town, and monarchical or republican the method of representing was that of a gathering of five, which in time was known as a Panchayat. Various towns bunch themselves into a Gohand. Various Gohands framed a “Khap” and number of Khaps shaped a ‘Sarv Khap’ grasping full area or state. Henceforth the Sarv Khap Panchayat spoke to all khaps. The individual khap would choose pioneers who might send appoints, who might speak to the Khaps at the Sarv Khap level. It was political association, made out of the considerable number of groups, groups and positions in the area.

Fundamentally these are the legacies of the tribal chambers, framed by different tribes with motivation behind encouraging determination of intra-tribal debate and between tribal intercourse. Prior these khaps are accepted to have been multi-rank. However, right away they have been simply a Jat foundation. These khaps by and large comprise of intense components of the predominant rank. They have awesome hold both at the neighborhood and common levels.

 

Source  Of Khap Panchayats:

As indicated by Ranbir Singh in his article, the accompanying entries might be made for the wellsprings of quality of khaps:

1)      The principle mystery quality of the khap panchayats is the perseverance of solid family relationship emotions among different tribes.

2)       Pervasiveness of the idea of seem- simli i.e. the idea of brotherhood (fellowship) among the families living in neighboring towns and in addition among various gotras living in the same town.

3)       Nobody raises the voice against the decision of khaps as they likewise are agreeable to the decision.

4)       The shortcoming of Panchayati Raj establishments is likewise in charge of the proceeded with quality of the khaps.

5)      The transformation of khap panchayats into vote banks has likewise made them basically unchallengeable.

6)       All the major political gatherings have been hesitant to raise their voices against them.

 

Some Realities of Khaps

There are some realities of khap can be found in a considerable lot of the structures which are being forced on the general population. These include:

 

1. Honor Executing:

Practically in all daily paper there is if not more than one news is of honor slaughtering where relatives of young lady executed both kid and young lady for wedding in the same sub-standing. Presently the inquiry emerges: What is honor Killings? There is no particular meaning of honor slaughtering. Notwithstanding, these “honor killings” are murder dedicated by relatives and the general population fitting in with the concerned station/class of relatives why should accepted have brought disgrace and disrespect on the family name. Another stark the truth is that the greater part of the honor killings have been accounted for from those zones where khap panchayats are more dynamic. These slaughtering are given shape by the merciless tenets of khap framework, which brings away their lives with uncouth fierceness. Individuals living in a khap are not permitted to wed in same gotra from the same town. The method of reasoning behind this, they contend is that individuals having a place with same gotra are accepted to be from the same faction or family heredity and subsequently siblings and sisters. Yet, there is awesome oddity included here. A late study charged by NCW, which was led by NGO Shakti Vahini uncovered that 72% of the 326 instances of honor violations were indeed between rank relational unions, while same gotra relational unions were just 3 percent. In all actuality, honor slaughtering is the result of conflict in the middle of convention and innovation and that’s it.

By making the false impression that all relational unions of decision between youthful couples are depraved, what khaps are really restricting is the privilege to pick marriage accomplice. Among a few examples of khap issuing fatwa’s, not a solitary one was an intra-gotra marriage, yet wedded couples were announced kin, and their families made to endure blacklists. As couples are specifically focused on, it is clear the genuine thought process is to control ladies’ sexuality to guarantee that property stays inside of the patriarchal station space.

 

2. Constrained Marriage:

A marriage performed by pressurizing one or both the gatherings and without their through and through freedom and full agree is thought to be a constrained marriage. Khaps frequently requested marriage between two grown-ups fitting in with same town or gotra as illicit and constrained female partner to wed other individual who has a place with various gotra. It is thought to be a type of aggressive behavior at home. In any case, regardless of expanding number of such cases society, police and law is turning a visually impaired eye to such episodes. Individuals falling prey to such constrained relational unions need to experience both mental and physical torment.

As of late one more decree issued by the khap panchayat of Uttar Pradesh town which assist insult effectively corrupted picture of khap panchayats. As per their announcement, ladies who are underneath 40 years old ought to make negligible utilization of mobiles furthermore banned affection marriage. This decree made waves all through the nation furthermore voices are raised about what is lawful legitimacy of such proclamation issued by alleged khap panchayat. These sorts of announcement make suspicion in our psyche whether we are truly living in 21st century.

 

 

Mahyem By The Khaps:

An expanding number of instances of honor killings have demonstrated reality of solid impact of khap panchyats on the Indian attitude. These infamous khap panchayats enjoyed wrongdoings by persuading individuals on how the demonstration of their kids conveyed disfavor to their families and what they need to do to ensure the honor of their gang. There are numerous occurrences of honor killings which are said to be incited by the choices of khap panchayats. Some of them are:

 

Mehrana Murdering Of 1991:
Mehrana (named after town in UP) murdering of 1991 is the principal significant episode pulled in consideration. A Jat working class young lady of the town named Roshini stole away with Jaatav (past untouchable rank) kid named Vijendra. One of the companions of the kid helped them. The town individuals got every one of the three. Town Khap panchayat requested to hang them with tree and blaze them. In the morning the request of the alleged panchayat was executed and the majority of the three were blazed alive to death before the entire town.

Manoj-Babli Murder Case: 

The Manoj-Babli murder case has set up point of reference in the field of honor executing. It was the situation of honor executing of Indian love bird Manoj-Babli in June 2007 and the progressive court case which verifiably sentenced charged for a honor slaughtering. The executing was requested by a khap panchayat of the Karora town in Kaithal area, Haryana.

The khap panchayat’s decision depended on the presumption that Manoj and Babli fit in with the Banwala gotra, a Jat group, and subsequently thought to be kin in spite of not being specifically related and any union between would be invalid. In any case, the couple proceeded with their marriage, taking after which they were stole and murdered by Babli’s relatives.

In Walk 2010 a Karnal area court sentenced the five culprits to be executed, the first run through an Indian court had done as such in a honor slaughtering case. The Khap head who requested yet did not participate in the killings got a lifelong incarceration, and the driver included in the kidnapping a seven year jail term.

 

Murdering Of Ved Pal And Sonia :
Another peculiar case including honor murdering was instance of Ved Pal and Sonia. Ved Pal who is a therapeutic specialist used to run a center inverse Sonia’s home. They experienced passionate feelings for one another. Both Ved Pal and Sonia realized that they had a place with various gotras and there was no between position wedding between them as both fit in with the same station, “Jat”. So the couple did not imagine that as a result of their wedding, they had brought on any disrespect to their families by wedding one another.

In any case, who realized that the unsafe mix-up Ved Buddy really made was getting hitched to his very own lady decision, who was from a connecting town. What them two did not know was the way that as indicated by the Jat convention of medieval times, individuals who lived in connecting towns or towns which share limit, were thought to be having a place with the same group, independent of the certainty to which gotra they have a place. Marriage between a kid and a young lady from abutting towns is subsequently against the khap manages, and denied by the panchayat, and in this way thought to be a wrongdoing. As an outcome khap panchayat requested to execute Sonia and Ved Buddy as they have conveyed shame to their separate ranks.

At long last one day when Ved Buddy went to his in-laws to bring back his wife, he was hanged by the swarm of the town disregarding the way that he was given police assurance. In this manner even a court arrange and outfitted police security couldn’t help Ved Buddy in recovering her wife home, or even spare his own life from the rage of the merciless supporters of khap guidelines.

 

The Instance Of Honor Murdering Of A Columnist, Jharkhand  
In April 2010, in Jharkhand, even a lady columnist has turned into the casualty of savage homicide for the sake of honor. Nirupama, a 22-year writer, who originates from a Brahmin family, experienced passionate feelings for a kid from another station and therefore, was ruthlessly killed for the sake of the honor.

 

Spreading Its Limbs In South India: The Instance Of Sivakumar And Megala, Tamil Nadu
The threat of honor killings under the weight of these khaps has spread its limbs all over India. In Shiva ganga, Tamil Nadu, a 20 year old young lady Megala was informed that she couldn’t wed her sweetheart, 24 year old Sivakumar as they were connected thus her family got their little girl wedded elsewhere in June, 2010 from where she absconded with her mate. The couple was at long last followed by the family and Sivakumar was pitilessly executed with sickles.

 

Khap Panchayat And Indian Legal system

Understanding the degree and frequencies of the acts of neglect and monstrosities perpetrated by Taliban-styled standing courts, the Indian legal by its impedance, to some degree put brakes on their working.

In Smt. Laxmi Kahhwaha versus The Condition of Rajasthan, an Open Interest Suit (PIL) was documented in the Rajasthan High Court, drawing the consideration of the court to illicit administrations of position panchayats on the weaker segment of the general public, particularly on ladies. The court watched that these panchayats had no locale at all to pass social blacklist, or force any fine on anybody and to disregard the essential privileges of a person.
In the case of UP versus Krishna Master,our Peak court made a phenomenal move by recompensing life sentence to the three blamed for the honor executing who killed six persons of a gang. The Seat further watched that wiping out verging on whole family on the feeble ground of sparing the honor of the family would fall inside rarest of the uncommon cases advanced by this court…. … this was repeated in Bhagwan Das versus State (NCT of Delhi) where the zenith court opined that all persons why should arranging execute honor slaughtering ought to realize that the scaffold anticipate them.
3. In Manoj And Babli Murder case, five of the seven convicts was sentenced to life detainment by the Punjab and Haryana High Court.

 

4. In Sujit Kumar versus Condition of UP, Allahabad High Court noticed that in our mainstream and liberal nation what to a great degree irritating is that the police and different powers don’t appear to find a way to check these dishonorable and primitive acts.

 

5. In the famous instance of Armugam Servai versus State of Tamil Nadu, the SC watched that Khap panchayat frequently announce or support honor killings or different outrages in an organized route on such young men and young ladies, who wish to get hitched or have been hitched, or meddle with the individual existences of individuals. This is completely illicit and must be savagely stamped out. The court termed Khap panchayats as Kangaroo courts and pronounced them unlawful.

 

WHAT THE LAW SAYS?

There is no specific law in India which deals with gruesome act of honour killings and any punishment regarding the same.  There are treated as murders under the provision of IPC as it is not a crime specified separately under the laws and no data about this crime has been collected by the National Crime Records Bureau. Apart from that, the most shameful situation emerges at that moment when the FIR’s were not being registered in such cases, and even the cases pursued, their conviction rate is very low.

 

THE GOVERNMENT READY FOR TOUGH LAW AGAINST KHAPS

To curtail this kind of killings, Central Government has made its view clear that it is coming out with a new legislation.  Under the proposed law, members of the khap panchayats or the victimsfamilies, if their action results in the death of the person or persons who feel went against the tradition or the wishes of khap will be punishable with sentence of death or life imprisonment.  In such cases, the entire panchayats will be held responsible.

 

For this purpose, the draft bill intends to append a new clause to Section 300 of the IPC.  It also intends to amend Indian Evidence Act and the Special Marriage Act, which would eliminate the provision for the mandatory 30-day notice period for marriages, intended to be solemnized under the Act.  The new bill is also expected to introduce a definition of honor killing for treating it as special crime and ensuring clarity for the law enforcement agencies.

 

However, it is distressing to note that in spite of such encouraging developments, the evil has not been checked efficiently.  In reality, the system itself supports barbarism.  The law has failed tremendously in curbing such nasty practices.  Although, the judiciary has played an active role, yet there were instances in the past where court orders have been ignored and protested against.

 

Thus, the urgent call is to pass stern laws, enforce them rigorously and punish the offenders deterrently so that electric shock in the idea of Jean Hampton ever flows in the nervous and circulatory systems of “Khap panchayats” and of the deaf and dumb civil society member there over.

 

CONCLUSION AND SUGGESTIONS

In the end of this discussion, I only find one solution to eradicate this social evil i.e. combined effort should be made by various modern and formal institutions of our country like Panchayati Raj, Judiciary, Police and the larger state.  But above all, this deep rooted and thriving cactus’s destruction requires people to wake up.  They should stop following the irrational norms laid down by Panchas.  Education and awareness of the people are very necessary.

But in spite of various efforts made by our government and judiciary, the culture of honor killings continue unabated.  The reason is simple. Even the law enforcement agencies strike a conciliatory note as there is hardly any case reported or action against these perpetrators of injustice.  Moreover, police and political figures have their vested interests in its continuance.

So the answer of the above discussion comes with balancing the human values of liberty and equity without the uncivilized moral degradation of public based on neo-liberalism.  There is need for healthy norms along with some stringent legal measures that can come to power only through some new social reforms. Therefore, in addition to other effective way-outs, the government and social organizations would have to resort of changing the mindset of people.  As it is more than a law and order problem; it is a social evil!

Traditionally, caste panchayats have played a powerful role.  As they are not elected bodies, their decisions are not enforceable by law but their terror will continue unless they are banned.  Hence, the only possible solution to the problem is to banish the khaps from India.  It is imperative to punish the responsible people harshly in order to prevent cultural and religious practices that are derogatory in nature and violate human rights and dignity.  Killing the crimes in the name of the honor can be calculated as cold-blooded murders, and its ghastly practice amounts to grave violation of human rights.

In light of the above discussion, following suggestions are submitted:

First of all, there should be a uniform definition of honor killing so that there is no room left for ambiguity as to what constitutes crime.
Indian Parliament is required to enact a new legislation at the earliest for curbing the menace of unconstitutional khap panchayats.
Any person convicted under such law should also be debarred from contesting any election for lifetime.
Special fast track courts should be constituted for handling cases of honor killings.
There should be amendment in the Evidence Act in order to shift the burden of proof on accused, thereby making him responsible to prove his innocence in the event of honour killing.
Amendment in the IPC should be made to insert a new section for defining the crime of honor killing and prescribing punishment for the same.
Last but not the least, the Government of India should remember its obligations and commitment to protect its citizens from such violence under CEDWA.

Understanding the Law of Sedition

Sedition Siddharth Sijoria

The Famous American Judge ,Justice Oliver Wendell Holmes had declared in 1929 that “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought we hate.” Our Constitution too accommodates a hateful thought under article 19 (1) (a) subject to the restrictions mentioned therein.  Sedition forms one such restriction. However the lack of understanding of the concept of sedition has several misgivings and has the tendency to color an expression of political dissent as sedition. This coloring is attributable to the definition of sedition under section 124A which makes any expression of disaffection towards existing government seditious . Therefore it becomes pertinent  to dispel the doubts about the situation under which  the law may become applicable  and procedural changes it requires in a developing democratic society to eliminate the fear of prosecution for smooth exercise of the free speech right.

The offence of sedition in India

The first judicial interpretation of section 124A was rendered in the case of Queen Empress v Jogendra Chunder Bose (1892) wherein the Court defined the offence in the following terms ” If a person uses either spoken or written words calculated to create in the minds of persons to whom they are addressed a disposition not to obey the lawful authority of the government, or to subvert or resist that authority if and when occasion should arise, and if he does so with the intention of creating such a disposition in his bearers or readers mind, he will be guilty of the offence of attempt to excite disaffection within the section.” The Constituent assembly deliberately removed the word “sedition” from the constitution in the light of the prevailing section 124A and its interpretation relatable to the restriction “in the interest of security of state ”  present in article 19 (2).

Thereafter in the year 1950, the Supreme Court while considering the constitutionality of the laws prohibiting  circulation of certain magazines  in the interest of  maintenance of public order in two cases, Romesh Thapar v State of Madras and Brij Bhushan v Delhi , ruled that “unless a law restricting free speech is directed solely against the undermining of the security of state or overthrow of it,  a law cannot be a restriction on free speech.” However Justice Fazal Ali, dissenting in both cases observed that even speeches or words calculated to breach public tranquility and leading to public disorder be termed as seditious and should be curtailed. The dissenting view was later reflected in the first amendment to Constitution as the words “reasonable” and “public order” were added in the article 19(2).

Eleven year after the first amendment,  the question pertaining to constitutional validity of section 124A came up before the Supreme Court in the case of Kedarnath v State of Bihar (1962). The Court while declaring the law to be valid cautioned that the section shall not be misused to muzzle free speech which is the life of the liberty. The Court while balancing free speech and section 124A stated that only such activities which are intended, or have a tendency to create disorder or disturbance of public peace by resort to violence can be termed as seditious.  The distinction was  further elucidated in the recent case of Shreya Singhal v Union of India which distinguished advocacy and incitement holding that only later could be punished.

Required Changes

The procedural compliance in making an arrest on  mere filing of complaint under section 124A is inevitable and carries the effect of causing “chilling effect” on the right of free expression. We must remember that procedural law is not to be tyrant but a servant, not an obstruction but an aid to justice. If the procedure has the potential of being misused and abused, then it is the responsibility of the legislature and the judiciary to mould it to bring it in consonance with the constitutionally guaranteed rights. The Supreme Court in 2014  in the case of Arnesh Kumar v State of Bihar has issued the guidelines to be followed before making an arrest under section 498A of IPC due to the misuse of the section. Similar guidelines may also be provided in the light of judicial interpretation of section 124A making it obligatory to establish a prima facie case and obtaining of Courts permission before arresting a person under section 124A.

Conclusion

The application of section 124A is subject to  article 19 (2) i.e a speech may be prosecuted for  sedition when it either affects the security of state or carries the effect of stirring people blood to violently overthrow the existing government. The procedural stringency must be reduced to protect bonafide speeches. In absence of incitement, no speech can be curtailed. To know the law is not merely to understand the words, but as well their force and effect. Let arms yield to the gown and Court decide the nature of speeches. It is our duty to protect our fellow citizens right to speak though we may not agree with them. Most problems will be solved if we start believing that people are not wrong but different.

 

 

Will the rainbow flags soon be waived in full glory : LGBT community

LGBT CommunityAbstract

As the Supreme Court has exceptionally accepted the curative petition in the case filed by Lawyers Collective to decriminalize same-sex sexual intercourse, the constitutionality question of Section 377 IPC has been raised once again. This article portrays an image of the historical position of the LGBT community before criminalizing legislation came into force. The legal framework will set out and it will be shown what the colonial legislation has changed. Important case law regarding this legislation will be dealt with. Three landmark judgments will be highlighted; the 2009 Delhi High Court decision which declared Section 377 IPC unconstitutional; the 2013 Supreme Court decision to uphold Section 377 IPC and the 2015 Supreme Court decision granting the transgender community a third gender and special protection. The implications of all this for the LGBT community will be evaluated, which will show the desirability that the Supreme Court soon bring clarification in its final decision regarding Section 377 IPC.

In a topic as one on hand, there are bound to be as many viewpoints to wit as are colours in a rainbow. No single view point may be fully correct or fully incorrect and yet all of them can peacefully coexist.[1]

1 Behind the Indian rainbow colours

Two weeks ago, the Supreme Court has accepted to hear a curative petition regarding the constitutionality of Section 377 IPC. Most notoriously known as the section criminalising homosexuality. Filing this petition was the last possible step to take by the Lawyers Collective, standing for the LGBT community, in their case to attempt to strike down Section 377 IPC in that it criminalises all same-sex intercourses, both consensual and non-consensual. Their case was brought before the courts in 2001 already, to be followed by a legal rollercoaster. In 2009, the criminalisation was struck down by the Delhi High Court, but in 2013 upheld again by the Supreme Court. Then in 2015, followed a very progressive and unique decision by the Supreme Court to recognise and protect the transgender community.

This article will give an overview of the history of the LGBT community in India and the legal framework. Both the legislation at stake and the landmark judgments will be looked into. An analysis will be made of their implications for the current position of the LGBT community in India, which will show the need for the Supreme Court to deal with the question of the constitutionality of Section 377 IPC once again.

2 Historical and societal perspective

“Unity in diversity”, that is the national slogan of India. Indeed, it is a vast country which is known for its many aspects of diversity. When it comes to the perception of homosexuals and transgenders, however, this message sometimes seems to be forgotten, as there are noticeably very different views and attitudes. Some people, and more broadly some states, are very tolerant towards the LGBT community. Others, on the other hand, are very conservative and do generally not accept the ‘otherness’ of this community.

In ancient Indian culture, acceptance towards homosexuality can be found in various sources. In several Hindu temples, walls are carved with images of same-sexed persons engaging in sexual activities. In ancient literature, most commonly known the Kama Sutra, direct references are made to sexual activities between same-sex partners. This shows tolerance in the Hindu culture towards homosexuality. As for transgenders, descriptions about sexual intercourse with people of a ‘third nature’ (Tritiya Prakriti) can be found in the Kama Sutra as well.

There are other Hindu texts, such as the Manu Smriti, which forbid sex between men. However, this is only sanctioned with minor penalties, such as bathing with one’s clothes on.[2] To place this into context: the same penalty is provided for men who have sex with women in a cart pulled by a bullock, in water or during the day.[3] Also should a man who had unnatural sex, bestial sex, sex with a menstruating woman or in water, atone by performing a Samtapana Krikkhra. This means he has to consume a drop of a purifying substance made of the urine of cows, cow dung, milk, sour milk, clarified butter and a concoction of Kusa grass, and he has to fast for one day and night.[4] The offence was thus only considered a minor one.

Transgenderism, particularly the hijra community, is a long existing part of Indian culture. In ancient times, hijras, being neither men nor women, were called upon for their religious powers to bless and to curse.[5] People wanted to keep them satisfied and gave them money – they feared that or else the hijras could bring them misfortune. Their traditional work is badhai – singing and dancing in public –, blessing new-born babies, or dancing in ceremonies.[6] They are still called upon for the performance of those societal functions at such occasions.

Even though the Indian precolonial era has not always shown much tolerance towards LGBTs, there can be said to have been a general climate of acceptance. This perception has changed radically over the years. This has been acknowledged by relatively recent case law, where it was stated that “[homosexuality] is not considered normal and at best of times looked down upon by the society”.[7] This change of mind-set can be traced back to the introduction of anti-sodomy provisions in the IPC during the British rule.

3 And then came the IPC

Since its entry into force, the IPC contains Section 377, which criminalises “unnatural offences”. It states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

The section is largely based upon the traditional Judeo-Christian standards which Macaulay, the British drafter of the IPC, advocated. It was considered to intend criminalisation of all kinds of non-procreative sex that were not penile-vaginal intercourse.

No legal definition is given of “unnatural offences” or “carnal intercourse against the order of nature”. This has later been clarified in case law as to cover oral sex, anal sex and penetration of other orifices.

Today, the provision is mostly known for its penalisation of homosexual conduct. However, this is also the only provision that criminalises sexual activities such as paedophilia and bestiality, as there are no separate provisions in the IPC that address these sexual crimes. This is why, even though there are many opponents of the provision, an entire abolition of the section is mostly not advocated.

4 Case law

The constitutionality of Section 377 IPC has been questioned before the Delhi High Court in 2009. The High Court deemed itself competent to declare Section 377 IPC unconstitutional. It ruled that Section 377 IPC was in violation of the right to equality and non-discrimination and the right to privacy, guaranteed by articles 14, 15 and 21 Constitution, insofar that it criminalised consensual sexual acts of same-sexed adults in private. The section would continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. This clarification by the Court would hold until the Parliament would choose to amend the law. The latter has not happened up until now.

The LGBT community’s euphoria about the High Court’s decision would last long. Four years later, in 2013, the case was brought before the Supreme Court, which decided that Section 377 IPC was not unconstitutional. The Court emphasised the principle of presumption of constitutionality and that the judiciary should exercise self-restraint when dealing with challenges to the constitutionality of laws. This already set the tone for its following findings on the constitutionality.

No violation of the right to equality and non-discrimination under articles 14 and 15 Constitution was found, because the classification that Section 377 IPC makes, would not be arbitrary nor irrational. According to the Court, those who have intercourse in the ordinary course and those who have intercourse against the order of nature, constitute different classes and they can thus be treated differently.[8] It did not accept that there was sufficient proof of a discriminatory attitude by state agencies towards sexual minorities and a consequential denial of their basic human rights.[9] Also the LGBT community was said to be only a miniscule fraction of the Indian population and over the last more than 150 years, less than 200 people had been prosecuted for committing an offence under Section 377 IPC.[10]

The right to privacy under article 21 Constitution was not found violated either, because alleged harassment of the LGBT community on the ground of Section 377 IPC was neither mandated nor condoned by the section.[11] The fact that the section was misused by police authorities and others, could be a relevant factor for the legislator to consider when judging on a contingent amendment of Section 377 IPC, but could not influence constitutionality of the section.

The Supreme Court thus radically reversed the progressive decision by the Delhi High Court to strike down the criminalisation of same-sex intercourse. It applied a rather rigid interpretation of the law to uphold the section as it had always been interpreted before.

In the light of the foregoing, it was rather surprising that two years later, in 2015, the Supreme Court made a most progressive decision regarding the legal recognition of transgenders’ gender identity.

The Supreme Court judged that transgenders should be recognised as a third gender, for they faced wide-spread discrimination and the non-recognition of their identity in Indian legislation, denied them equal protection of the law.[12] The Court continued that they should be treated as a socially and educationally backward class and are entitled to reservations in cases of admission in educational institutions and public appointments.[13] Several measures were ordered to be undertaken to address their struggles in society, such as separate public toilets and separate HIV sero-surveillance centres.

 

5 Implications for LGBT position

The Supreme Court decisions of 2013 regarding the upholding of the criminalisation and of 2015 regarding the recognition and protection of the transgender community as third gender, seem to be in tension with each other to some extent. The first decision is a conservative one, which completely swept the liberal reasoning by the Delhi High Court under the carpet. The latter is, on the contrary, unique in its progressiveness and a model case for other countries in the international community.

Transgenders are provided extra protection and rights, whereas the same-sex sex ban has been reinstated. Now what does this mean? It is not unlikely that both instances occur in one case. It seems absurd how transgenders get reservations in education, jobs and welfare schemes – must be protected! –, but on the other hand, if they perform the sexual acts that are intertwined with their gender identity, they are to be criminalised – not acceptable, criminal offence! It seems to imply some kind of split personality of transgenders…

Sound explanations are difficult to provide. Perhaps the fact that hijras are a visible class in society, which homosexuals are not, has to do with it. Perhaps homosexuality is still less accepted in Indian society than transgenderism is. Perhaps the bench in 2013 was just more conservative than the one deciding the transgender case two years later. Whatever the reason may be, although the latter case can be considered a step forward, the legal position of the LGBT community is still currently very ambiguous.

The fact that the Supreme Court has now agreed to hear the curative petition which has been filed as a last remedy in the case concerning the constitutionality of Section 377 IPC, shows that there still is some hope for the LGBT community.

 

6 Conclusion

A reflection on the history of the LGBT community, shows the struggles which it has faced, especially since the colonial legislation was introduced in India. There were four years of a feeling of victory, after the Delhi High Court had decided to strike down the criminalisation of consensual same-sex intercourse between adults. The Supreme Court, however, reversed this liberal decision and re-enforced the same-sex sex ban.

It is to be awaited what the Supreme Court will decide in its final decision, as it has recently accepted the curative petition considering this constitutionality. As curative petitions are admitted only very exceptionally, in 1% of the cases, this can already be considered a big step forward. The LGBT community will surely be holding their rainbow flags ready to waive in victory in case of a definite decriminalisation. All will have to exercise patience to see which path the Supreme Court will take on its final journey regarding Section 377 IPC…

By Iris Leerdam

 

 

[1]Gujarat High Court 28 February 2014, X v. State of Gujarat, § 24.
[2] I. Trivedi, “The Indian in the Closet. New Delhi’s Wrong Turn on Gay Rights”, Foreign Aff. March/April 2014, vol. 93, (21) 23.
[3]Manu Smriti Chapter XI, verse 175.
[4]Manu Smriti Chapter XI, verse 174 and 213.
[5]P. S. Jagadish, “Mainstreaming Third-Gender Healers: The Changing Perception of South Asian Hijras”, VURJ 2013, vol. 9, (1) 1.
[6] S. Nanda, Neither Man nor Woman. The Hijras of India, New York, Wadsworth Publishing Company, 1999, ed. 2, 1, 119.
[7] Gujarat High Court 28 February 2014, X v. State of Gujarat, § 21.
[8] Supreme Court 11 December 2013, Suresh Kumar Koushal and Another v. Naz Foundation and Others, http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070, 82-83, § 42.
[9]Ibid. 78-79, § 40.
[10]Ibid. 83, § 43.
[11]Ibid. 91-92, § 51.
[12] Supreme Court 15 April 2014, National Legal Services Authority v. Union of India, http://supremecourtofindia.nic.in/outtoday/wc40012.pdf, 72-73, § 75.
[13]Ibid. 109-110, § 129.

Critical Analysis of Rights and Controls of Broadcasting in India

 

Broadcasting Media is the best and critical wellspring of information to the general population, we called it as a fourth mainstay of the popularity based country. Most moment and viable method for production and dissemination of news are Television slots, which now-a-days overcome by focused business sector in the field of media TV. With the improvement of correspondence innovation and open enthusiasm for huge different Television slots developed as the aggressive business in Indian TV media.

 

TV media is one of the latest concept in the field of broadcasting media.

At beginning to TV, as right on time as in 1980’s just Doordarshan, which was state own TV media was accessible, yet over the span of innovative advancements TV media changed over into substantial number of private TV slots which now accommodate the TV of different news reports and other stimulation programs for 24 hours relentless administration.

In 1990’s 24 hours News channels gave news to the Indian group of onlookers or Indian people groups in Hindi, Marathi, English and numerous more local dialects gave the proceed with administrations. Presently in 2000 there is part off focused business sector in news media scope and they gave each second news to better capability, they gave the consistently news of happening of occasion and government working. The legislature for the regulation of the TV they firstly endeavor to direct the non-government telecast media concentrated on link administrators came about into link The Telecom companies (Regulation) Act, 1995.

Regulation is required as there is the rise of substantial number of rivalry to spare from the unapproved and unlawful utilization of media. The television develops as one of the most important Fundamental Rights given in Part III read with Article 19 of the Indian Constitution. It gives the privilege to discourse and expression which straightforwardly mirror the privilege to distribution and flow of ones own perspectives in people in general with specific limitations which are given in the Article 19(2). The right to speak freely and Expression extensively implies suppositions and claims feeling communicated by words, mouth, compositions, printings, pictures or whatever other method of correspondence. It incorporates the statement of one’s thoughts through any transferable media or obvious representation, which additionally called TV. The flexibility of engendering of thought is secured by opportunity flow.

Its methods each resident has right to show his article, book, painting and own perspectives through different television media like T.V. channels, FM radio, news papers, magazine, portable systems and so on. This privilege is likewise managed by Incomparable Court through its different choices additionally has amplify the extent of the right to speak freely also, expression. One of the critical choices identified with production is LIC of India v. Manubhai D. Shah . For this situation it was held that the LIC magazine is directed by open asset and along these lines its refusal to distribute the respondent’s reply was uncalled for and preposterous and self-assertive and was violative of Article 19(1) (a) of the Indian Constitution.

In another historic point judgment of Secretary, Ministry of Information and Broadcasting v. cricket Association of Bengal, all things considered the Preeminent Court held that the Privilege to The right to speak freely and Expression incorporates the privilege to broadcast and show the matches and this privilege has a place with the association, which can’t be meddled by any one. The association is allowed to pick any offices or TV media, which it supposes fitting to broadcast the matches.

Television media must be under control of open. In area mark judgment conveyed in the year 1995 it was held that, the basic role of all TV media is just for people in general hobby. Aviation routes frequencies are the general population property.

Their utilization must be controlled and directed by open power in broad daylight enthusiasm to keep the intrusion of this privilege.

This media gave the dissemination and dispersion of news and perspectives straightforwardly into people in general everywhere, it is differ risky to wellbeing and security of country and in addition open profound quality any foul and outrageous proclamation will influence the peace and security of the state or society, with the goal that it must be directed and controlled over television media.

 

Illustration: –

26/11 assault of Mumbai at hotel Taj. Amid that assault, media show live scope of each activity of the Indian guard side and live development of Taj which thusly helped the terrorist to known the each arrangement of the Administration which postured danger to security of State.
At the highest point of the chain of command of control of the TV media is the Service of Data and TV, which manages the TV through different principles and regulations. Service of Data and Television controls through its sub powers for the viable system to manage TV. In which there is Prasar Bharti for television and censer board to direct movie in India, under which there are numerous associations which control TV media in local levels. In late improvement to control telecaster from unauthorized and uncensored Broadcasting is Broadcasting Content Complaint Council (BCCC) under control of Indian Broadcasting Federation (IBF). This power gets the objections from the general population against uncensored seen on TV station and rebuffs to those Television slots who violet the guideline.

Television is a piece of right to the right to speak freely and expression gave by Article 19(1) of the Indian Constitution and different Incomparable Court choice like Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal. Through this judgment, the Incomparable Court gave that, the Air space is not the imposing business model of the Administration; it is utilized for open hobby. Like astute numerous choices of the Incomparable Court give that the television media is ideal for open hobby.

In any case, because of the opposition in the television showcase the Stations are huge in number and attempt to contend with one another, so they are utilized to Telecast uncensored scenes and unapproved scene likewise the scenes, which hurt the security of the country. Consequently there must be an appropriate regulation and control over television media through compelling system.

 

MANDATE OF THE MINISTRY OF INFORMATION AND BROADCASTING

  • News Services through All India Radio (AIR) and Doordarshan (DD) for the people
    Development of broadcasting and television.
    Import and export of films.
    Development and promotion of film industry.
    Organization of film festivals and cultural exchanges for the purpose.
    Directorate of Advertising and visual publicity DAVP
    Handling of press relations to present the policies of Government of India and to get feedback on the Government policies.
    Administration of the Press and Registration of Books Act, 1867 in respect of newspapers.
    Dissemination of information about India within and outside the country through publications on matters of national importance.
    Research, Reference and Training to assist the media units of the Ministry to meet their responsibilities.
    Use of interpersonal communication and traditional folk art forms for information/ publicity campaigns on public interest issues.
    International co-operation in the field of information & mass media.

CRITICISM AND CONTROVERSIES

The Ministry has often been criticized for the actions of the various bodies under it:

Arbitrary actions taken in the past to ban television channels which ostensibly showed explicit scenes, as well as actions taken to ban general use websites like Yahoo Groups, have been criticized.[1] [2]
All India Radio is the only radio broadcaster allowed to broadcast news within India, though this is likely to change with the recommendations of the TRAI.[3]
The Ministry of Information and Broadcasting asked the media not to air a controversial documentary by BBC about rape in India.[4]
The ministry has been criticized in its role of the way it has handled the FTII strike.
CONCLUSION

TV media is the developing business sector in the TV television media there for it rivalry is expansion step by step that extraordinarily influence people in general ethical quality and security of state by TV uncesor scene and unapproved which is damage to security of state for this it must be direct and controlled. Thought it is correct developed under the Article 19 of the India constitution yet it must direct through viable enactment. Present enactment and power are not compelling as to control TV media.

 

 

BIBLIOGRAPHY

1)    “Outrage over India Yahoo ban”. BBC News. 29 September 2003.

2)    AXN says sorry for ‘obscene’ TV

3)     “Let private FM radio stations air news: Trai”. The Times Of India. 23 February 2008.

4)    “India: Rape documentary excerpts ‘incite violence against women'”. CNN. 4 March 2015. Retrieved 4 March 2015.

[1] “Outrage over India Yahoo ban”. BBC News. 29 September 2003.

[2]  AXN says sorry for ‘obscene’ TV

[3]  “Let private FM radio stations air news: Trai”. The Times Of India. 23 February 2008.

[4] “India: Rape documentary excerpts ‘incite violence against women'”. CNN. 4 March 2015. Retrieved 4 March 2015.