Delhi HC asks police to file status report on plea against Tharoor’s anticipatory bail

The Delhi High Court today asked the Delhi Police to file a status report on a plea challenging anticipatory bail given to Congress leader Shashi Tharoor in a case related to his wife Sunanda Pushkar’s death.

Justice R K Gauba asked the Delhi Police’s standing counsel (criminal) Rahul Mehra to appear in the matter and listed the plea on September 25.

“The state shall file a status report inspecting the case against the backdrop of which the present controversy is raised,” the court said.

The court was hearing the petition filed by a Delhi-based lawyer Deepak Anand challenging a trial court’s July 5 order granting anticipatory bail to Tharoor in the matter.

The petitioner argued that after filing of charge sheet, the trial court took cognisance and issued summons to Tharoor. 

Instead of appearing before the court concerned, the Congress leader moved the court of an additional sessions judge which “erroneously” granted him bail, he said.

Pushkar was found dead in a suite of a luxury hotel in the city on the night of January 17, 2014. The couple was staying in the hotel, as the official bungalow of Shashi Tharoor was being renovated at that time.

Tharoor has been charged under sections 498A (husband or his relative subjecting a woman to cruelty) and 306 (abetment of suicide) of the Indian Penal Code (IPC), but has not been arrested in the case.

Indian Penal Code- Comprehensive Criminal Code Of The Nation

Advocate Sneha Suman (LL.M-NLUO)

The Indian judicial system is considered to be one of the most important organs of the government. There are several laws enacted in our nation for curbing the ill-practices. All these enacted laws would turn to be futile if there is an absence of enforcement machineries. The judiciary of the nation is entrusted with the task of executing the laws and therefore they are rightly regarded as “law-enforcers”. But the representatives of the judiciary cannot assess the criminal activities or misconduct based on their own perceptions. There was an absolute need of a document or a uniform system which would act as a standard for decision making process and make the task of penalizing easier. These sort of document exists in every countries. For India it is The Indian Penal Code, for our neighboring country Pakistan it is the Pakistan penal code.

ENACTMENT OF THE ACT

The Indian penal code 1860 is considered to be the comprehensive criminal code of the nation.  Before the British took over the administration of the country, India was ruled by Marathas and Muslims. It would not be incorrect to say that the criminal justice was in an absolute deplorable state during the reign of Marathas and Muslims. There were conflicts and contradictions in the decisions of the courts. Seeing the deplorable state of the laws in the nation and to simplify the criminal law of the country on the pattern of common law, a law commission was constituted in the year 1834 and Lord Macaulay was appointed as its chairman. Macleod, Anderson and Millet were its other members. The draft of the Indian Penal Code was submitted to the governor-general in council by the committee on 14th October 1837 and the same received the assent on 6th October, 1860 and finally it was only on 1st January 1862 when the act came into force.

OBJECTIVE

Indian penal code is a complete code as the main objective behind the enactment of this act was to provide a general penal code for the nation. The preamble of the code sates that “whereas it is expedient to provide a general penal code for India”. One of the most significant feature of the Indian penal code is that it does not make any special provisions for special persons. From a common man to a judicial officer all persons receive equal treatment under the act. Undoubtedly, the act is impartial in nature.

 

INDIAN PENAL CODE

The act consists of 511 sections and 23 chapters. This act is applicable to all the citizens of India. This act is also applicable to extra-territorial offences covering crime committed by a citizen of India in any place without and beyond India, crime committed on any aircraft or ship registered under any law in India or any person targeting any computer resource located in India.[1] The act also defines several words like public, judge, Public Servant, valuable security, life, death etc. chapter 4 of the code deals with general exceptions(situations) under which a man can be excused of the crime committed by him. All sorts of crime be it offences against the state, Public tranquility, offences against human health, religion are dealt under the Indian penal code.

PROMINENT PROVISIONS OF THE CODE

There are several provisions enacted under the code dealing with various subjects. But the provisions dealing with culpable homicide and Murder are considered to be one of the most highlighting feature of the code. Death penalty is the highest form of punishment inflicted under the code. The nation witnessed capital punishment in Mahatma Gandhi’s Assassination case when Nathuram Godse was hanged to death in the year 1949. Several provisions are made for the protection of women be it penalizing for sexual harassments, acid attacks, dowry deaths, rape and domestic violence. Indian penal code also provides protection to the deceased by prohibiting publication of any defamatory statement pertaining to the deceased.

CONCLUSION

As time changes the situations and the atmosphere of the nation also varies. There is always a need to change the laws of the nation to keep in pace with the changing needs of the society. Several amendments are made in the laws of the nation keeping in view the requirements and the welfare of the people. The Indian penal code also witnessed several amendments in the year 2013 be it the amendment in the definition of rape or the inclusion of provisions for penalizing sexual harassments or acid attacks. Hence, the Indian penal code is rightly called the comprehensive criminal code of the nation

[1] Sec:4

Quashing of False FIR registered under 498A and 406 of the Indian Penal Code

Harsh Vardhan Arora v. Smt Kavita Arora, 2002 MLR 528= 2002(2) RCR (Cr) 499 (Pb & Har.)

The Court can exercise extraordinary jurisdiction vested under section 482 of the Code of Criminal Procedure 1973 primarily to prevent the abuse of the process of the court or otherwise secure the ends of justice. Basically it would depend on fact situation of each case which would enable the court after reading the complaint as a whole whether allegations made therein at their face value bring out the ingredients made therein at their face value bring out the ingredients of the offence or whether these do not constitute the offence for which cognizance was taken by the magistrate and in the later case the court would be justified in quashing the complaint.

In the present case the facts detailed in the complaint have been noticed above. Omnibus allegations had been made against all the accused in respect of demand of dowry, harassment, torture and beating given to her during the period she stayed in the matrimonial home. No specific date, month or year had been specified when these incidents had taken place. It cannot be ignored that every member of the family of the complainant’s husband has been implicated in this case. The allegations made are vague and general and for that reason no offence under Section 498-A, IPC is made out against the accused.

 

Mukesh Rani V. State of Haryana, 2002 MLR 175=2002 (2) Cr.CC 123= 2002 (1) RCR (Cr) 163= 2002 (1) CC Cases (HC) 48 (Pb. & Har.)      

In the instant case respondent No.2 is the husband of respondent No.3 and respondent No.3 is the sister of husband of the complainant. In the FIR, it has not been specifically mentioned what dowry articles were entrusted to respondents 2 and 3 at the time of the marriage. If no article has been entrusted to respondents 2 and 3, then no case under section 406 is made out. It is also not the case of the complainant that respondents2 and 3 are residing with the husband of the complainant. The respondents have placed on record the documents showing that they are employed as teachers and are living separately in village Bamble from the complainant and her husband Satyadev. Even on the date when the alleged occurrence took place respondents were present in their school i.e. on 07.01.1994.

If on the face of the compliant it shows that complaint is false, charge should not be framed. In the instant case, there is evidence that respondent No.3 who is the sister of the husband of the complainant was living separate with her husband-respondent No.2 in a different village and were employed as teacher, the learned trial court has rightly discharged respondents 2 and 3.

For the reasons mentioned above, there is no ground to interfere in the well reasoned orders passed by the learned courts below. Hence this petition is dismissed.

 

 

Anu Gill V. State and Anr., 2001 MLR 467 = 2001 (59) DRJ 417 (Delhi)

To constitute the offence under section 406, IPC there must be clear and specific allegation that the accused was entrusted with some property or domain over it, by the complainant, that the accused has dishonestly misappropriated or converted the same to his own use or that accused refused to return back the articles when the same were demanded by the complainant. Perusal of the allegations appearing against the petitioner do not show that articles of Istridhan were even entrusted to her. In misappropriation or conversion to her use does not arise. Thus the most vital ingredient to constitute the offence under section 406, IPC is missing. In view of the above, no case under section 406, IPC is spelt out against the petitioner.

After her marriage complainant- respondent No.2 started living with her husband who never posted in Delhi. Admittedly petitioner was employed in Ministry of Finance at the time of marriage of the complainant. The petitioner was married in 1997 and since then she is living in her own matrimonial home. Allegations made by the complainant that her husband used to misbehave with her, at the behest of the petitioner are totally vague, inherently improbable and unworthy of credence. From these allegations even a strong suspicion cannot be interfered. Even the statements recorded during investigation do not furnish the requisite material so as to make out the prima faciecase under section 498-A, IPC against the petitioner.

 

Raj Pal Singh & Ors. V. State of Haryana, 2000 MLR 594= 2000(3) Rec. C.R. 135 (Pb. & Har.)

So far as cruelty by the complainant is concerned, the complaint is once again vague and general. The complainant has stated that from the beginning, all the accused especially accused No.1 (her husband) treated her cruelly. There is no allegation against any of the petitioners. The further allegation that few days after the marriage the accused persons started torturing her is also vague and without details. Similarly the allegation that the other accused instigated her husband is also vague and general without being specific. Though the complainant has stated that five months after the birth of male child, she was turned out of the matrimonial home, she has not specified as to who has done so. Her allegation that in July, 1997, her husband at the instance of the other accused severely beat her and turned her out of the matrimonial home is again the allegations regarding the entrustment of the dowry articles and the allegations regarding misappropriation are also not in this petition is that the petitioners are living separately while the complainant and her husband lived separately in separate house and, therefore, there was no occasion for these petitioners to either demand dowry or misappropriate it or to treat the complainant cruelly as alleged by her. But the complainant has not chosen to appear and deny the allegation that herself and separately in a separate house. This is also an additional factor which has to be taken into consideration. Therefore, I am of the view that the reading of the F.I.R. does  not disclose any ground for proceeding against the petitioners for any of the offences alleged in the F.I.R. Therefore, the F.I.R. has to be quashed on this ground only.

Neera Singh v. The state (Govt. of NCT of Delhi) & Ors., 2007 MLR 335= 2007 (2) LRC 75= 2007 (1) DMC 345=2007 (138) DLT 152=2007 (2) JCC 906 Delhi

Considering the allegations made by the complainant in her statement to the police and in the FIR, the learned ASJ observed that the ingredients under section 498-A of the IPC were not made out against the minor girls Kamlesh and Mamta. The remarks as alleged were made by the two girls. There were no allegations of either physical or mental torture by these two girls and, therefore, he considered the no case was made out against the two minor girls under section 498-A of the IPC.                  

                The cruelty perpetuated on a women may be physical or mental. However, not doing household work by minor girls either or their own or at the instance of their mother, as alleged, cannot be stated to be cruelty to the women or the utterances as assigned to these two minor girls that she had not brought any gold item for them would amount to harassment being made by minor girls for the purpose of coercing her or her relatives to meet the unlawful demands.

Now-a-days it has become a tendency to make vague and omnibus allegations against every member of the family of the husband, involving everybody under section 498-A and 406 of the IPC by making one or the other allegations. Hence, it has become very necessary for the courts to carefully scrutinize the allegations and to find out if the allegations made really constitute the offence and meet the requirements of law at least prima facie. The learned ASJ scrutinized the entire FIR and the statement of the complaiant and thereafter observed that no case was made out against these two minor girls. I have also gone through the record and find that except above allegations made by the complainant, no other role was assigned to these two minor girls (respondents).

Use and Abuse of Section 498 A of Indian Penal Code

Article 498 A of IPCAN OVERVIEW

What is Article 498 A of IPC?
Section 498 A which deals with the punishment of the husband and his relatives if a married women is subjected to cruelty which is likely to drive a woman to commit suicide or cause grave physical or mental injury to her, and harassment with a view to coercing her or any of her relatives to meet any unlawful demands of property. The offence is cognizable, non-bailable and non-compoundable. That the offence committed under said Section is considered to be very grave and the accused has to face stringent legal consequences.
How is it useful to society?
The core concern to enact any legal provision is that it must be useful for the society in maintaining the rule of law and controlling the anarchy. Section 498 A was enacted with a motive to protect women from the harsh and insensitive society that includes her own matrimonial home. The aim behind this is to create awareness and to impart equal rights to women in the male dominating society.
Impact of Section 498A-
With the rise of modern era, the woman has become educated, financially strong and aware of her rights. The said enactment which was made for their protection has now being used as a weapon by them. Many innocent husbands and their families are being a victim of their implacable wives/ daughter-in-laws. Courts are flooded with the cases under Section 498 A, many of them are turning to be false and filed with mere intention to blackmail. It has become a foul play to extort money from spouse and his family if they do not value her liberty or does not able to fulfill her demands.
The aim of this article is not to criticize any segment of society, but to point out that the provision which was enacted for the betterment of women are now being misused by them, which is a very sad state. To the contrary those who are the actual victims of the harassment are still not able to raise their voice against the aggravation they are facing. The question is why such a disparity in the society? The answer could be lack of awareness, fear, lack of education or might be pressure of their own family etc.
Is there a real need of 498 A?
The answer to this question would a big YES. There is a need of this provision for those women who are being ill-treated, burnt alive for not brining enough money in marriage, tortured by their in-laws for fulfilling their avaricious wishes. However, before availing the said provision every woman must think whether it is a weapon or a shield to them.
Modernization has changed the views of the society, women have got equal freedom and liberty they have become equally aware, independent and educated. This is a boon for the society to have literate people who can contribute in the growth of Nation. But why Section 498A is being misused? The answer to this question might be the arrogance, high headedness, egotism among woman, the feminism deeply imbedded. However, one forgets that education does not teach us haughtiness; on the contrary it makes us modest and humble. One must appreciate that performing once matrimonial responsibilities does not make us less than anybody and it does not curtail our liberty in any manner. However, it gives a feeling of pride and a responsible, loving human being.
Nowadays married couple has disputed on trivial issues such as refusal to cook, demand to live separately from in-laws, demanding to hire servants for every petty household task, making extravagant demands. In case of failure to fulfill such needs, the clashes start and sword of Section 498 A is used.
However, this is one side of the coin there are genuine cases as well where the brides are burnt alive and being brutally tortured by their husbands and in-laws. They do not get the moral support to raise their voice against such ill-treatments and brutality against them.
How can we use Section 498A in maintaining a balance in the society?
a. Foremost everyone should understand that laws are made for their protection and not for exploitation or misuse.
b. One should keep in mind that legal provision must only be used in genuine cases and not to blackmail or to harass somebody.
c. We must educate woman to take a stand against the injustice being done with them in the matrimonial home.
d. We must focus on areas where woman are downtrodden specific concern to rural areas, where woman do not get moral support to stand up against the harassment.
e. NGOs can help in spreading awareness among woman who is unaware of their rights.
f. Woman who is educated must help another woman in educating her about their rights.
g. Not only woman but every individual must understand their duties and obligations towards matrimonial relationship. Because breakdown of a marriage not only effects the married couple. But it also hampers the growth of a child who is innocent and deserves love of both the parents.
Conclusion-
The most important part of the society, woman must understand that being literate and independent makes her stronger. But she must also appreciate the fact that performing her matrimonial obligations or being modest is equally important. Woman is the most beautiful creation of God on this planet. She should feel proud on herself but not by being arrogant but by being modest. This article is written with a motive to create awareness among mass to use the legal provisions for protection but not for exploitation.
I would like to end this article here by mentioning a quote on woman that shows her power, her modesty, her determination and her love. The society must love and respect woman.
God’s most important and the most beautiful creation…. WOMAN…. She is a mother, a wife, a friend, a sister and play so many roles all at a time…. She does get tired, but she still carries on….she is the real strength, God has given her the power to bring life on earth….when she loves you, she does it with whole heart and soul…. She deserves to be loved and respected…… LOVE HER AND RESPECT HER……

Labour Jurisprudence and Indian Prisons: A Drift towards Reformation

Shivani Singh

Under the scars and the tattoos

Dwells a man who cares.

Under the hate and the anger

Lives love and compassion.

Under the mask of “Damn it, I just don’t care!”

Lives hope and dreams.

Under the “I don’t need anyone” role I play

Is a desire to trust.

Under the blood stains on my hands

I find shame.

Under the cold outside

Is a man who needs to be loved.

Under the biker, killer, convict

Is a father, a son, a brother, an uncle and a friend.

 

I’m like a bucket of water in prison

Who would like to be poured back into the streams of life.

So I ask God Almighty to forgive me

For pouring my bucket of water in the sand.

By Rick M.

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

― Nelson Mandela

Prisons, though for a short or longer period are places of living for both accused as well as convicts. In India prisons are considered to be the critical indicators of human rights violation. The condition of the jails is appalling in comparison to any of its other basic public facilities. The money spent on jail reforms and development of their basic amenities is negligible by comparison to the amount spent renovating the residences of “honourable” ministers and restructuring their legislative assemblies. The government of India organizes welfare schemes for cows, but ignores the plight of millions of citizens languishing in custody under horrifying conditions.

The drift of treating prisoners as ‘out-casts’ to treating them as human beings set in only from the beginning of this century .The prisoners were recognised as societal human beings who should be made useful to the society. The Universal Declaration of Human Rights recognises that the individual is entitled to certain basic rights. As Mahatma Gandhi said, “Hate the crime and not the criminal”.

Development of Thought:

Custody, care and treatment are the three main functions of a modern prison organization. For over 100 years, there was emphasis on custody which, it was believed, depended on good order and discipline. The notion of prison discipline was to make imprison¬ment deterrent. Consequently, hard punitive labour with no regard for the human personalities and severe punishments were the main basis of prison treatment.

Gradually, the objective of imprisonment changed from mere deter¬rence to deterrence and reformation. This led to the abandonment of some of the barbaric punishments and introduction of the system of awards for good work and conduct in the form of remission, review of sentences, wages for prison labour, treatment in open conditions, parole,etc.

The objectives of ‘prison labour’ have varied from time to time. The first All India Jails Committee of 1936-38, advocated that monotonous and uninter¬esting tasks should be provided to prisoners and remarked that the criminal was least eligible for being taught useful arts which was considered as reward neutralizing the pain of punishment.

On the contrary, the All India Jails Committee of 1919-20 recommended that the main objective of prison labour should be the prevention of further crime by the reformation of criminals, for which they were to be given instruction in up-to-date methods of work enabling them to earn a living wage on release. The other objectives were to keep the offenders use fully engaged, to prevent mental damage and to enable them to contribute to the cost of their maintenance.

Work that is now allotted to prisoners on the basis of their health, length of sentence, prior knowledge of a trade, and the trade which was most likely to provide a living wage on release.

After independence, punitive labour such as extraction of oil by manual labour was abolished and more useful programmes were introduced. Some effort has also been made during the last three decades to train prisoners largely drawn from among agriculturists in modern methods of agriculture and animal husbandry but, for want of land, only limited progress could be made in this direction.

There is need for the introduction of a greater variety of trades and professions, keeping in view the possibilities of self-employment of prisoners on release. Better qualified instructors, modern tools and equipment and a proper wages system would provide meaningful work experience to the prisoners.

Labour and work in prison and correctional institutions :

A sentence of imprisonment undermines the family cohesion and security, destroys the prospects of legal earning for himself and for his family and results in the loss of employment and assets.

Prisons in India are not only a liability on society but have lost the very essence of their objective. Most of the prisons in our country (barring two or maximum three) are a cost for the nation. The total expenditure on all prisons combined, across the nation, was estimated to be around Rs.2,69,726.80 lakhs during the year 2010-11, with every prisoner, on an average, costing the exchequer Rs.19,446.60 (2010-11 data)! Now, here is where the paradox lies. These criminals are stuffed (literally) into our prisons since they have created either an economic loss or social loss to the country; and they are then made to survive on the tax paid by that very aggrieved society. In simple terms, the total cost on all prisoners put together is shared by around 150,000 taxpayers!

Assigning labour to inmates in correctional institutions is considered today a major issue. Work is necessary for keeping inmates engaged to contain their idleness and reduce their unrest and disciplinary problems, for removing their monotony and improving their morale, for assigning such hard labour to them which may deter them from repeatedly indulging in crime.

For teaching them some useful trade which may help them to become self-supporting after release from prison, for enabling them to earn and get some extra facilities for themselves in jails and also for sending some money to their families to support their children, and for reducing the operating cost of maintaining jails.

Thus, the basic objective of prison labour is not only punitive nor to make jails self-sufficient but also to keep prisoners engaged.

The tasks assigned to prison inmates till a few decades back were generally unproductive. Besides, a large number of inmates remained entirely unemployed. Even today, no work is assigned to the under trials and prisoners of ‘A’ class.

In all, six systems of prison labour have been identified which prevailed/prevail in different parts of the world. These systems are: the lease system, the contract system, the piece price system, the state use system, the state account system and the public works system.

The first three are private systems while the last three are public systems. In India, only the last three public systems of prison labour are prevalent at present .Therefore , these three are discussed below :

 Under the state account (or also called the public account) system, inmates manufacture various commodities in the institution and the products are sold in the open market in competition with the goods produced by free labour. The state thus earns profit (or incurs loss) and exercises complete control over the inmates as well as the entire business.

This system is prevalent in India even today and things like carpets, niwar, furniture, durries, flower-pots, cane baskets, etc. are sold by prisons in the open market. But the system has not picked up much owing to small demand for prison-made goods, poor quality of the goocL produced, introduction of machinery in private industry, and lack of capital and transportation facilities.

 Under the state use system, the state supplies products of prisoners to public institutions and agencies (like the police, schools, post-office government offices, and so forth). This practice of restricting the mark avoids direct competition with private enterprise and free labour while utilising prison labour for the benefit of the public.

 Under the public works system, the services of prisoners are used for constructing dams, digging canals, cultivating land, and so forth. The prisoners are paid the same wages as are paid to free labour. However, the prisoners have to arrange for their own food out of the wages earned by them.

The state account and the state use systems are the two systems which are usually adopted by prisons in India. The training “given and the work assigned to inmates in prisons can be classified into five major groups: textiles and subsidiary, carpentry, leather work, black smithy, and producing soap, rope, etc. It is estimated that no more than 30 to 35 per cent of prisoners are engaged in productive work.Of these, more than 50 per cent are engaged in durrie-making, 25 per cent in handloom textiles, and the remaining 25 per cent in other tasks (like carpentry, tailoring, black-smithy, etc.).

A majority of the workers (about 80%) feel dissatisfied with the work assigned to them. It is, therefore, necessary that before assigning work to prisoners, the authorities concerned must examine: (i) the effect of work on the health of prisoners, (ii) effect of work on reformation and value-changes, (iii) economic benefit to the state, (iv) effect on administration’s efficiency, (v) competition with market, and (vi) market demand. Besides these considerations, other factors which can be given importance in assigning work could be term of prisoner’s imprisonment, his age, education and previous training, the nature of crime, economic benefit to the prisoner, and the rehabilitative value of the work assigned.

Right to Reasonable Wages in Prison:

Whenever during the imprisonment, the prisoners are made to work in the prison, they must be paid wages at the reasonable rate. The wages should not be below minimum wages. The payment has to be equivalent to the service rendered, otherwise it would be ‘forced labour’ within the meaning of Article 23 of the Constitution. In such a case there is no difference between a prisoner serving a sentence inside the prison walls and a freeman in the society .

In the case of People’s Union for Democratic Rights v. Union of India , the Bench observed thus:

“We are, therefore, of the view that where a person provides labour or service to another or remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words “forced labour” under Article 23.”

Initially, payment of wages to prisoners was opposed on the ground that they were already a burden on the State. Gradually, the need for providing some motivation to prisoners was realized and it was considered that some monetary reward would develop interest in work and provide the necessary incentive, more so if the prisoner was allowed to use the earnings on himself or his family.

Maharashtra was the first State to introduce in 1949 a very comprehensive system of wages.

In some of the open prisons, prisoners are paid wages at market rates out of which they pay to State their cost of maintenance. There is now a growing realization that such liberal system of wages would provide greater incentive for higher and better production.

In the case of Mahammad Giasuddin v. State of A.P. , the court directed the state to take into account that the wages should be paid at a reasonable rate. It should not be below minimum wages, this factor should be taken into account while finalizing the rules for payment of wages to prisoners, as well as to give retrospective effect to wage policy.

In the case of State of Gujarat v. Hon’ble High Court of Gujarat(1998), A delicate issue requiring very circumspective approach mooted before the court. Whether prisoners, who are required to do labour as part of their punishment, should necessarily be paid wages for such work at the rates prescribed under Minimum Wages law. The court has before him appeals filed by some State Governments challenging the judgments rendered by the respective High Courts which in principle upheld the contention that denial of wages at such rates would fringe on infringement of the Constitution protection against exaction of forced labour.

A Division Bench in the case of Gurdev Singh v. State Himachal Pradesh , the court said that Article 23 of the Constitution prohibits ‘forced Labour’ and mandated that any contravention of such prohibition shall be an offence punishable in accordance with law. The court had no doubt that paying a pittance to them is virtually paying nothing. Even if the amount paid to them were a little more than a nominal sum the resultant position would remain the same. Government of India had set up in 1980 a Committee on jail reforms under the Chairmanship of Mr. Justice A.N. Mulla, a retired judge of the Allahabad High Court. The report submitted by the said Committee is known as ‘Mulla Committee Report’. It contains a lot of valuable suggestions, among which the following are contextually apposite.

“All prisoners under sentence should be required to work subject to their physical and mental fitness as determined medically. Work is not to be conceived as additional punishment but as a means of furthering the rehabilitation of the prisoners, there training for work, the forming of better work habits, and of preventing idleness and disorder………..Punitive, repressive and afflictive work in any form should not be given to prisoners. Work should not become drudgery and a meaningless prison activity. Work and training programmes should be treated as important avenues of imparting useful values to inmates for their vocational and social adjustment and also for their ultimate rehabilitation in the free community……….Rates of Wages should be fair and equitable and not merely nominal or paltry. These rates should be standardized so as to achieve a broad uniformity in wage system in all the prisons in cash State and Union Territory.”

The court finally gave the following observations:

(1) It is lawful to employ the prisoners sentenced to rigorous imprisonment to do hard labour whether he consents to do it or not.

(2) It is open to the jail officials to permit other prisoners also to do any work which they choose to do provided such prisoners make a request for that purpose.

(3) It is imperative that the prisoner should be paid equitable wages for the work done by them. In order to determine the quantum of equitable wages payable to prisoners the State concerned shall constitute a wage fixation body for making recommendations. We direct each State to do so as early as possible.

(4) Until the State Government takes any decision on such recommendations every prisoner must be paid wages for the work done by him at such rates or revised rates as the Government concerned fixes in the light of the observations made above. For this purpose we direct all the State Governments to fix the rate of such interim wages within six weeks from today and report to this Court of compliance of this direction.

(5) State concerned should make law for setting apart a portion of the wages earned by the prisoners to be paid as compensation to deserving victims of the offence the commission of which entailed the sentence of imprisonment to the prisoner, either directly or through a common fund to be created for this purpose or in any other feasible mode.

A few examples of a positive work culture in Jails of India :-

 In 1949, the central prison at Lucknow in Uttar Pradesh was converted into a ‘model prison” for accommodating star class prisoners who are the best behaved. Here, every prisoner is studied and given educational and vocational training where after he gets an opportunity for self-employment in an environment similar to the outside world as far as possible. On the basis of his progress, as assessed from time to time, a prisoner is given graded freedom from maxi¬mum security to free-living conditions without any watch and ward during day or night. The prisoner pays to the State the cost of his maintenance from his earnings.

 At central jail of Hyderabad many prisoners are doing different works some are doing work in the kitchen some are doing handwork like making carpets, handy craft in there cells.

Jail superintend Pir Shabir Jan Sarhandi said that we want to make these criminals as a respected citizens so when they go out they can do there jobs as they learned in the jail.

 A high-security prison near Hyderabad is launching an innovative scheme to turn convicts into “outsourcing providers” for local firms and eventually, it is hoped, international clients. The scheme is in its early stages, with prisoners being trained in basic data entry skills. Jail authorities hope that inmates will soon be just as likely to tap at a keyboard as dig vegetables, make carpets or stitch uniforms.

 The Tihar Jail Factory is located in Central Jail No.2, Tihar, New Delhi. It was setup in the year 1961 with the objective to engage prison inmates in productive work. Over the period of time, there has been manifold growth in the scope and activities of the Jail Factory. At present, Tihar Jail Factory has Carpentry, Weaving (Handloom & Powerloom), Tailoring, Chemical, Handmade Paper, Commercial Art and Bakery units. The Bakery unit is known as Tihar Baking School. A very high level of cleanliness and hygiene is maintained in all manufacturing units. The Jail administration also runs various vocational & technical training programmes for skill development, reformation & rehabilitation of prison inmates in these units. A new Shoe-making unit was started in December 2009 under Public-Private Partnership model. The products manufactured in Jail Factory are sold under the brand name of “TJ’s” .

 In Tihar Jail, women inmates are taught knitting and sewing, and their products are sold outside, even abroad. Ms Max, whom some inmates describe as a social worker-cum-business woman, brings the raw materials and pays the inmates according to their work. Some inmates manage to earn up to Rs 1000 a month. A pair of multi-coloured stockings earns Rs 70, while each glove knitted with jute fetches Rs 40. Last year the inmates made 3000 pairs of stockings between April and December to meet an export order. Although this could be viewed as an example of rehabilitation, it also has a hidden profit motive of pure business.

 Inmates of Vadodara, Surat and Sabarmati central jails will soon be seen refueling vehicles at petrol pumps, which are to come up in these cities.

The Indian Oil Corporation Limited (IOCL) has agreed to allot petrol pumps to these prisons and they can become operational within a year, officials in the state prison department said.

Prisoners with a record of disciplined behaviour inside the three jails will be trained and subsequently “employed” as attendants, said officials, adding that IOCL will provide certificates to these inmates. “This will help prisoners in getting employment after they complete their jail terms,” added an official.

While the prisoners in the above case are getting some remittance for their work, most inmates are not so lucky. Forced prison labour is common throughout India. When the practice was challenged in the Supreme Court, it ruled that prisoners are also entitled to minimum wages, and directed states to make the necessary provisions accordingly. When the question was argued at length, counsel appearing for the state argued that state governments should be allowed to deduct a certain amount for providing basic amenities to prisoners. The implication of this argument was that it is not the duty of the state to keep the prisoner, but rather the obligation of the prisoner to pay for himself. Upon final consideration, the court directed state governments to make provisions for an “adequate wage” for prison labour (All India Reporter 1998, Supreme Court, p. 3164). Unfortunately, the “adequate wage” is often as little as Rs 14 for skilled labour and Rs 9 for unskilled labour, that is, not even seven per cent of the minimum wage legislated for non-convicts.

Conclusion:

When there exist 42.9 per cent prisoners who are educated till class 10 and 6.44 per cent being graduates and above, it is senseless for authorities not to make the most of their competencies. The more educated can train those who are not that well learned, so that they can lead decent lives after their move back to real world once their confinement is complete. Our prisons should get privatized and their management outsourced. It might seem like a far-away vision now but it’s a usual practice in the West, especially in the US.

The Indian Penal Code (Amendment) Bill 1972 provides new forms of punishments such as experiment, pay¬ment of compensation to the victim, corrective labour, public censure etc.

The programmes of work and educational and vocational training should be such as would benefit the offender after his release. Work is now not to be treated as additional punishment but should be treated as an important means of imparting useful values to in¬mates for vocational and social adjustment and rehabilitation.

Advertisement and freedom of speech

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”. – John Milton

The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restriction, or repression by the government. Advertising is a form of communication for marketing and used to encourage orpersuade an audience (viewers, readers or listeners; sometimes a specific group) to continue or take some new action. Most commonly, the desired result is to drive consumer behaviour with respect to a commercial offering, although political and ideological advertising is also common.

In John W. Rast v. Van Deman& Lewis Company, Mr. Justice Mckenna, dealing with advertisements said:-

“Advertising is merely identification and description, apprising of quality and place. It has no other object than to draw attention to the article to be sold and the acquisition of the article to be sold constitutes the only inducement to its purchase.”above advertisement takes the same attributes as the object it seeks to promote or bring to the notice of the public to be used by it. Examples can be multiplied which would show that advertisement dealing with trade and business has relation with the item “business or trade” and not with “freedom of speech”.

 

The principles, as stated in the case of Reckitt & Coleman of India Ltd v Kiwi TTKLtd (63 (1996) DLT 29), are as follows:

a) An advertisement can declare that theadvertised goods are the best in theworld, even though this declaration isuntrue;

b) An advertisement can state that theadvertised goods are better than thoseof competitors, even if this statement isuntrue;

c) An advertisement can compare theadvertised goods with those ofcompetitors;

d) An advertisement cannot, while statingthat the advertised goods are betterthan those of a competitor, state thatthe competitor’s products are bad, as this would be defamation;

e) In a case of defamation, damages can beclaimed. The court can also grant aninjunction against repetition of the defamatory action.

 

Today, new era of advertising has evolved, which is both cost-effective as well as efficient at global level. Online advertising is the fastest growing medium of advertising that has proven its effectiveness and stability in the advertising world.In a developing economy like India, advertising has a profound impact on how people understand life, the world and themselves, especially with regard to their values, choices and behaviour. Advertising is considered to be the cornerstone of our socio-economic system and may be viewed as the lifeline of free media, paying costs and making media widely accessible. Advertising agencies perform deep research before they create and feature the advertisement for the targeted audience. Few platforms dominated the advertising market and offered an opportunity for the advertisers to pass on the message to people, and market their products.

Freedom to speak freely, without limitation or regulation is termed as the Freedom of Speech. Freedom of Expression implies not only the freedom to speak but also to distribute and access of the information through various media modes. In the advertising and media industry, a self-regulatory guideline of code and conduct is a self-imposed discipline, whose primary objective is to monitor and prescribe the advertising standards for public interest. This system complements government legislation and regulations as well. As the categories of sensitive advertisers are constantly increasing; consumer groups, governments and regulators became more cautious to take lively interest. Monitoring and voluntary self-regulations in advertising, allow reasonable freedom of speech and expression. The members of Communication Council should be aware about the importance of self-regulation.

In many countries, the government controls media so that nobody can publish or broadcast anything that the government considers harmful, immoral or threatening for the stability of the country. Censorship is regulated by a particular body or the government that retains the power base, on the media content.

Right To Advertisement As A Part Of Freedom Of Speech And Expression

Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product advertised. Public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow ofcommercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of “commercial speech” and when examined from another angle, the public at large has a right to receive the “Commercial speech”. Article (19) (1) (a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements. An advertisement giving information regarding a life saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.

An advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Article 19(1) which it seeks to aid by bringing it to the notice of the public. When it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas ‘ social, political or economic or furtherance of literature or human thought; but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines. In such a case, advertisement is a part of business.

It was asserted in HamdardDawakhana (WAKF) LalKuan, Delhi and Another v Union of India, [SCR 1960 (2) 671]that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Art. 19(1) which it seeks to aid by bringing it to the notice of the public.

It allows us to freely express our ideas and thoughts through any medium such as print, visual, and voice. One can use any communication medium of visual representation such as signs, pictures, or movies. Freedom of speech would amount to nothing if it were not possible to propagate the ideas. Thus, the freedom of publication is also covered under freedom of speech. Freedom of speech serves 4 purposes:

a) Allows an individual to attain self fulfillment.

b) Assists in the discovery of truth.

c) It strengthens the capacity of a person to make decisions.

d) It facilitates a balance between stability and social change.

 

This right is not only about communicating your ideas to others but also about being able to publish and propagate other people’s views as well. Thus, freedom of speech and expression is linked to the people’s right to know. Freedom of speech and expression is a broad term and encompasses several things Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions like Universal Declaration of Human Rights, European convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly talk about protection of freedom of speech and expression.

Right to know, to information is other facet of freedom of speech. The right to know, to receive and to impart information has been recognized within the right to freedom of speech and expression. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. In State of Uttar Pradesh v. Raj Narain it was observed that, “The people of this country have a right to know every public act by their public functionaries. The right to know is derived from the concept of freedom of speech.” Through advertisements, not only is the right to know is assured but it is directly proportional to the advertisers freedom of speech and expression. Advertisements maintain competition in the market and help in educating the public.

In Reliance Petrochemicals Ltd v. Indian Express it has been observed by the bench deciding the case that “We must remember that people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live n this age on our land under Art. 21 of the Constitution.”

Since, advertising is a form of communication for marketing and is used to encourage or persuade audience. It is nonetheless dissemination of information regarding the product advertised and the public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements.

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order, because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the exercise of the right to freedom of speech and expression “in the interest of” the public on the following grounds:

a) Security of State

b) Friendly relations with foreign states

c) Public Order

d) Decency or morality

e) Contempt of Court

f) Defamation

g) Incitement to an offence Sovereignty and integrity of India.

 

However, advertisers often view these rules and regulations as violating their right to freedom of speech. Some ads, in particular, were considered derogatory and banned by the government, such as:

  •  A deodorant advertisement that showed a man accompanied by scantily clad women was banned by the government after several complaints were received from viewers about the advertisement being offensive to family viewers.
  • A soft drink advertisement that showed a child bringing the drink for the Indian cricket players was banned after complaints from child labor activists.
  • Advertisements of two underwear ads were banned due to vulgarity and indecency. Objectionable content in ad is usually a reason for taking it off channels.

When RESTRICTIONS:

As stated previously, no right can be absolute and without restrictions or else they might not act in the best interest of the public. Advertisement has been considered as an act of communication or expressing one’s views but the said right may be exploited by the advertisers if not guarded. Restrictions on advertisements might be imposed when the advertiser indulges in the following acts, for it is necessary for the government/the appropriate authorities to intervene if such advertisements are detrimental to the interests of the public at large:

 1. Deception– exists when an advertisement is introduced into the perceptual process of the audience in such a way that the output of that perceptual process differs from the reality of the situation. It includes a misrepresentation, omission or a practice that is likely to mislead. These may include the following:

  • Violates Consumers’ Right to Information: Use of untrue paid testimonials to convince buyers, quoting misleading prices, disparaging a rival product in a misleading manner are some examples of deception. Advertisers of anti- aging creams, complexion improving creams, weight loss programs, anti-dandruff shampoos, and manufacturers of vitamins or dietary supplements are usually guilty of making exaggerated product claims. Some of the examples of advertisements in this category are:

“A fairness cream is advertised with the claim that its user will get a fair complexion within a month” is deceptive in nature  as it deceives/misleads the public into believing such facts which might not take place.

  • Violates Consumers’ Right to Safety: When an advertisement for cooking oil says that using the said oil frees the user from heart problems, and then such an advertisement is misrepresenting the facts. Companies advertise products highlighting health cures and drugs of questionable efficacy and health gadgets of unknown values.
  • Violates Consumers’ Right to Choice: When material facts which are likely to influence buying decisions are not disclosed the advertisement becomes deceptive. In several advertisements it is stated that ‘conditions apply’ but these conditions are not stated. Not disclosing material facts amounts to deception. For example, the recent print ad for Videocon mentions a 1-ton split-AC available for Rs. 15,990/, a very attractive offer. But there is a small asterisk which mentions three things in small font, such as “Conditions apply”, “Prices valid in Delhi and NCR under exchange only”.

2. Bait advertising :It means taking advantage of consumer psychology and depriving consumers of a choice. For example, a consumer is lured into a retail outlet by an advertisement for a low cost item and then is sold a higher priced version or to be defective. Once the consumer enters the store, he or she is pressured to purchase another more expensive item. On visiting such stores, one finds a handful of outdated products on the discount announced and other better products as ‘fresh stock’.

3. Advertising of harmful products: Advertising is not restricted to products that are good for people. According to law in India advertisements for cigarettes, liquor, paan masala, products that are harmful to the public continue to find a place despite the ban imposed by the government in private channels, cable, and through the use of surrogates.

4. Puffery/Fraudulation: Very often we hear that advertisement exaggerates about the product qualities. Now a days ‘puffery’ i.e. “metaphor of idea” forms to be main element in advertising. On the one hand critics accuse it, while on the other defenders i.e. advertisers and advertising professionals opined it as a helping agent to differentiate their brands from the competitors. Puffery is considered to be an ‘opinion’ and not a ‘factual information’. Advertisers claim that the consumers are intelligent enough to distinguish between truth and exaggeration. Moreover they are not blindly going to believe everything as such presented in an advertisement.

5. For a better understanding of the above and relationship between commercial advertisement and freedom of speech and expression, the remarks made by the Hon’ble judge in Colgate Palmolive (India) Limited v Anchor Health & Beauty Care Private Limited (Case (2008) 7 MLJ 1119) might be of utmost relevance: it was heldthat false claims by traders about the superiority of their products, either directly or by comparing them against the products of their rivals, were not permissible. Recognizing the right of producers to puff their own products even with untrue claims, but without denigrating or slandering each other’s products, would be to ‘de-recognize’ the rights of the consumers guaranteed under the Consumer Protection Act 1986.”

To permit two rival traders to indulge in puffery, without denigrating each other’s products, would benefit both of them, but would leave the consumer helpless. If on the other hand, the falsity of the claim of a trader about the quality and utility value of his product is exposed by his rival, the consumer stands to benefit by the knowledge derived out of such exposure. After all, in a free market economy, the products will find their place, as water would find its level, provided the consumers are well informed. Consumer education, in a country with limited resources and a low literacy level, is possible only by allowing a free play for the trade rivals in the advertising arena, so that each exposes the other and the consumer thereby derives a fringe benefit.

Notably, the court found to be permissible advertisements which “tend to enlighten the consumer, either by exposing the falsity or misleading nature of the claim made by the trade rival or by presenting a comparison of the merits (or demerits) of their respective products”. Interpreting such advertisements to be in the ‘public good’, the court cited two instances as an exception to this – namely, if an advertisement is motivated by malice, and if it is false. The court held that this sort of advertising would benefit society because competitors are naturally better equipped to expose a rival’s untrue claims.

The court also held that the benefit to society from such an exposure would “outweigh the loss of business for the person affected”. This observation was based on the court’s assumption that comparative advertising, even if it did not amount to a disparagement of other goods, could result in consumers being misled.

The Court in HamdardDawakhana (WAKF) LalKuan, Delhi v Union of Indiaprimarily relied on the judgment of the United States Supreme Court in Valentine v Chrestensen for the proposition that “purely commercial advertising” is not protected by Article 19(1) (a) of the Constitution. As also in Bigelow v Virginia,421 U.S. 804 the United States Supreme Court reversed the conviction of a Virginia newspaper editor who had been found guilty of publishing an advertisement which offered assistance to women seeking abortion. Abortion was illegal in Virginia in 1971 when the advertisement was published. The women Pavilion, a New York group, urged women who wanted an abortion to come to New York. Blackmun, J. analysing earlier judgments of the Court observed that speech does not lose the protection of the First Amendment merely because it appears in the form of a commercial advertisement.

Laws Imposing Restrictions On Advertising:

1. Consumer Protection Act– This statute provides for the establishment of a Central Consumer Protection Council with the object of promotion and protection of the rights of the consumer, including protection against unfair trade practices. The Act also empowers the District Forum to take measures to discontinue the unfair trade practices. The Forum also has the power to issue corrective advertisements to neutralize the effect of a misleading advertisement. India does have other legislations that regulate unfair trade practices, in addition to the Consumer Protection Act.

2. The Monopolies and Restrictive Trade Practice act, 1969: It had been the most effective Act in the eighties and nineties to regulate undesirable advertising. In the year 1984, the government brought, through an amendment, “unfair trade practices” under the purview of the MRTP Commission and the Office of the Director General (Investigation and Registration). However, this Act is being replaced by the Competition Act, 2002 but the cases pending under the MRTP Commission are still being heard. Moreover, a Competition Commission has been set up under the Competition Act to deal with monopolies and restrictive trade practices. The complaints pertaining to unfair trade practices are still being handled by the MRTP Commission or the consumer courts. The MRTP Act has been very effective in hauling a number of advertisers to stop advertisements which are prejudicial to consumer interest through its ‘cease and desist orders’.

3. Information Technology Act, 2000 (IT Act): The IT Act makes the publication and transmission in electronic form of material which is lascivious or appeals to the prurient interest or it its effect is such as to tend to deprave and corrupt persons who arelikely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, punishable with imprisonment and fine. The IT Act applies to any offence committed by any person outside India, if it involves a computer, computer system or computer network located in India. The offences under the IT Act are punishable with imprisonment and/or fine.

4. Indian Penal Code, 1860 (IPC): The IPC makes it a punishable offence to advertise any obscene publication or its distribution, sale, hire or circulation. It is also an offence under IPC to publish advertisements relating to any lottery which is not a state lottery or which is not authorized by the State Government. The IPC prohibits the sale, distribution, public exhibition or circulation of any obscene book, pamphlet, paper, drawing, painting, representation, figure or any other obscene object.

5. The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (CTPA): The CTPA prohibits advertisement of cigarettes and other tobacco products which, directly or indirectly, suggest or promote the use or consumption of cigarettes or any other tobacco products, by any person who is either engaged in the production, supply or distribution of such products or by a person having control over a medium who causes such advertisements to be advertised through that medium or by a person who takes part in such advertisement.

6. The Drugs and Magic Remedies (Objectionable Advertisements) Act : This statute prohibits advertisements of drugs for certain purposes and of treatment of certain diseases and disorders. It also prohibits misleading advertisements relating to drugs and advertisements of magical remedies for the treatment of certain diseases and disorders. Under this Act, “advertisement” includes any notice, circular, label, wrapper or other document and any announcement made orally or by means of producing or transmitting light, sound or smoke.

7. The Emblems and Names (Prevention of Improper Use) Act, 1950: This statute prohibits the use, for professional or commercial purposes, of select emblems and names of national or international significance. An advertiser who makes commercial use of such emblems and names would be liable under this statute

 8. SEBI (Mutual Funds Regulation), 1996: SEBI Guidelines for Advertisements by Mutual Funds – the Guidelines list out detailed requirements for advertisements by Mutual Funds. The guidelines apply to all forms of advertisements, communications, released in any form and through any media including websites. It defines an “advertisement” as any material published or designed to be published on which a mutual fund has no control over the audience and which is broadly distributed.

9. The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994: This statute prohibits advertisements relating to predetermination of sex.

10.The Transplantation of Human Organs Act, 1994: This statute makes it a punishable offence to issue advertisements inviting persons to supply, for payment a human organ.

 

COMMERCIAL ADVERTISEMENT :

 

HamdardDawakhana (WAKF) LalKuan, Delhi v. Union of India, [SCR 1960 (2) 671] – The Court in this case dealt with advertising of prohibited drugs and commodities. The Court was principally dealing with the right to advertise prohibited drugs, to prevent self-medication and self-treatment. It is in no doubt true that some of the observations referred to above go beyond the needs of the case and tend to affect the right to publish all commercial advertisements. A Constitution Bench of this Court held that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Art. 19(1) which it seeks to aid by bringing it to the notice of the public.

When it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas social, political or economic or furtherance of literature or human thought; but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines. In such a case, advertisement is a part of business and it was being used for the purpose of furthering the business of the petitioners and had no relationship with what may be called the essential concept of the freedom of speech. It cannot be said that the right to publish and distribute commercial advertisements advertising an individual’s personal business is a part of freedom of speech guaranteed by the Constitution.

The Court came to the conclusion that the sale of prohibited drugs was not in the interest of the general public and as such “could not be a speech” within the meaning of freedom of speech and expression under Article 19(1) (a) of the Constitution. The Court further held in the said case that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed.

HamdardDawakhana’s case was considered by this Court in Indian Express Newspapers (Bombay) Private Ltd. &Ors. etc. etc. vs. Union of India, 1985(2) SCR 287 – herein, the Parliament of India enacted a statute that was aimed at controlling advertisements of drugs in some specified cases [Drugs and Magic Remedies (ObjectionableAdvertisements) Act (1954)]. Purpose of the act was to prevent ‘objectionable’ and‘unethical’ advertisements in order to discourage self-medication and self treatment. Theconstitutionality of this Act was challenged by the plaintiff on the grounds that itrestricted his right to freedom of speech and expression unfairly, in contravention of Arts19(1)(a) and Art 19(2) and also that it violated his rights to carry on business because therestrictions were allegedly in contravention of Art 19(1)(g) .

The Judgment: The Bench that decided the case acknowledge that advertisement was no doubt a form of speech but that “it’s true character is detected by the object for the promotion of which it is employed. The judgment acknowledged that advertisements acquire some, but notall, elements of speech or expression intended for protection by Art 19(1)(a) by bringing to the notice of the public”.

The activity or product or service that it seeks to publicize [the right to disseminate and receive information that Art 19(1)(a) recognizes in certain cases]. But the judgment goes onto to state that the content and intent of the advertisement is extremely important when deciding whether it deserves protection under Arts 19(1)(a) and 19(2).When it (advertisement)takes the form of a commercial advertisement which has an element of trade and commerce, it no longer falls within the concept of freedom of speech, for the object is not propagation of ideas, social political or economic, or furtherance of literature or human thought, but the commendation of the efficacy , value and importance of certain goods.

This statement forms the crux of the judgment and encapsulates the legal position occupied by commercial speech when it comes to protection under Art 19(1)(a).The judgment iterated that advertisements prohibited by the impugned Act relate to trade and commerce and not the propagation of ideas and that advertising of prohibited drugs and commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of Art 19(1)(a).

The observations in HamdardDawakhana’s case to the effect that advertising by itself would not come within Article 19(1) (a) of the Constitution, were explained by this Court in Indian Express Newspapers’s case in the following words: The main plank of that decision was that the type of advertisement dealt with there did not carry with it the protection of Article 19(1) (a). the court finally opined that all commercial advertisements cannot be denied the protection of Article 19(1) (a) of the Constitution merely because they are issued by businessmen.”

The combined reading of HamdardDawakhana’s case and the Indian Express Newspapers’s case leads us to the conclusion that “commercial speech” cannot be denied the protection of Article 19(1) (a) of the Constitution merely because the same are issued by businessmen. Advertising is considered to be the cornerstone of our economic system. Low prices for consumers are dependent upon mass production, mass production is dependent upon volume sales, and volume sales are dependent upon advertising. Apart from the lifeline of the free economy in a democratic country, advertising can be viewed as the life blood of free media, paying most of the costs and thus making the media widely available. Without advertising, the resources available for expenditure on the “news” would decline, which may lead to an erosion of quality and quantity. The cost of the “news” to the public would increase, thereby restricting its “democratic” availability.

In the case of Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal reported in (1995) 5 SCC 161 Supreme Could held that commercial advertisement no doubt is a form of speech but its true character is reflected by the object for promotion of which it is employed. Only when an advertisement is concerned with the expression or prorogation of ideas that it can be said to be related to freedom of expression and speech. The object and purpose for which advertisement is published is the determining factor. When propagation of ideas and thoughts is inconsequential, but the real purpose and object is promotion of sales of goods and services and personal benefit without any social purpose, commercial advertisement cannot have the same decree of constitutional protection as in case of social or political speeches.

The Supreme Court further observed that commercial advertisements helps dissemination of information regarding the product and the public also benefits by the information which is available and honest and economic marketing is protected under Article 19(1)(a). It was observed that said freedom is both for the speaker as well as the recipient of the speech, but an advertisement for a life saving drug may be more important and leads greater public interest than an advertisement for pure trade consideration.

Mahesh Bhatt and anrv. Union Of India, 147 (2008) DLT 561was another landmark judgement on the said point – herein, the Writ Petitions challenged the legality and validity of some of the provisions of the Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 under which “advertisement” was defined to include any visible representation by way of notice, circular, label, wrapper or other document and also includes any announcement made orally or by any means of producing or transmitting light, sound, smoke or gas.

The court had observed advertisements means to make an announcement and inform public and disseminate information through media and other means, to draw the attention of the public/individual concerned to some information.It was held thatAdvertisements of tobacco products cannot per-se be regarded as immoral. Consumption Consumption of tobacco or smoking is unhealthy but is not immoral. The term ‘decency’ is more expansive in its scope. Commercial advertisements are entitled to limited protection under Article 19(1)(a) of the Constitution if they are in public interest. Commercial advertisements of tobacco products are not expressions protected under Article 19(1)(a) of the Constitution. Commercial advertisements will include indirect or surrogate advertisements which promote and encourage use of tobacco products. However, commercial advertisements are different and distinct from news. The purpose and object behind news is to disseminate information, thoughts and ideas. Pre-dominant nature and character of the article, picture, etc, will determine whether it is a commercial advertisement or a news item/picture.

Curtailment Of The Advertisements

A Constitution Bench held in Sakal Papers (p) Ltd. and others. vs. Union of India, AIR 1962 SC 305 – considered the constitutional validity of the Newspaper (Price and Page) Act, 1956. The said Act empowered the Government to regulate the prices of newspaper in relation to their pages and sizes and to regulate allocation of space for advertisement matter. This Court held that the Act placed restraints on the freedom of press to circulate. This Court further held that the curtailment of the advertisements would bring down the circulation of the newspaper and as such would be hit by Article 19(1) (a) of the Constitution of India.

It was argued before this Court that the publication of advertisements was a trading activity. The diminution of advertisement revenue could not be regarded as an infringement of the right under Article 19(1) (a). It was further argued before this Court that devoting large volume of space to advertisements could not be the lawful exercise of the right of freedom to speech and expression or the right of dissemination of news and views. It was also contended that instead of raising the price of the newspaper the object could be achieved by reducing the advertisements. The Supreme Court ruled that it is not open to the State to curtail the freedom of the press for promoting the general welfare of a section or a group of people unless its action can be justified by a law strictly falling under clause 2 of Article 19. Freedom of the Press cannot be curtailed on such omnibus grounds as in the interest of the general public as in the case of the freedom to carry on trade, business or profession. The restriction must be reasonable. In other words, it must not be excessive or disproportionate. The procedure and the manner of imposition of the restriction also must be just, fair and reasonable.

In Bennett Coleman & Co. &Ors. v. Union of India, 1973 2 SCR 757it was held that the law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will not be saved by Article 19 (2). If the area of advertisements is restricted, price of paper goes up. If the price goes up circulation will go down.The High Court did not accept the contention that a newspaper has a constitutional right to obtain advertisements from the government. It, however, held that the government cannot exercise this power or privilege to favour one set of newspapers or to show its displeasure against another section of the press. It should not use the power over such large funds in its hands to muzzle the press, or as a weapon to punish newspapers which criticise its policies and actions. It has to use the funds in a reasonable manner consistently with the object of the advertisement viz. to educate and inform the public about the activities of the government.

Advertisement And Freedom Of Speech

It was later held in the landmark case of Tata Press Limited v.Mahanagar Telephone-Nigam, 1995 AIR 2438 that it cannot be said that every advertisement is a matter dealing with freedom of speech nor can it be said that it is an expression of ideas. In every case one has to see what is the nature of the advertisement and what activity falling under Art. 19(1) it seeks to further. The advertisements in the instant case relate to commerce or trade and not to propagating of ideas; and advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of freedom of speech and would not fall within Art. 19(1) (a). The main purpose and true intent and aim, object and scope of the Act is to prevent self- medication or self-treatment and for that purpose advertisements commending certain drugs and medicines have been prohibited.

TheSupreme Court of India gave out one of the most progressive pieces of judicial interpretation: the right to commercial freedom of speech and expression. Of far reaching consequence to media and business, wholly synonymous with the spirit of liberalisation “this great constitutional advance was made on simple and relatively boring facts”.

In a nutshell it means that, for the first time in India, advertising is protected as a form of free speech.

The judgement results from a dispute between Tata Press and MTNL whose monopoly on printing telephone directories under the Indian Telegraph Act, was successfully challenged by Tata’s Yellow Pages.

It was contended that it is the public’s right to receive information by way of advertising implicit in the concept of “free speech and expression” guaranteed under Article 19(1)A of the Constitution. In taking a holistic approach to the issue, Justice Kuldip Singh described the free flow of commercial information as “the cornerstone of our economic system. Low prices for consumers are dependent on mass production (which) is dependent on volume sales (which) is dependent on advertising.”

To safeguard free enterprise, the heart of liberalisation, advertising is vital to both manufacturer and consumer. In fact, Justice Singh goes further in supporting the right of the consumer, ‘the recipient of commercial speech’, with a striking example: “An advertisement giving information regarding a life saving drug may be of much more importance to the general public than to the advertiser who may be having purely a trade consideration Article 19(1) (a) not only guarantees freedom of speech and expression, it also protects the rights of

 

Individuals to listen, read and receive the said speech.”

The judgement is also interpreted “as a resounding victory for the media,” because it dwells at length on the role of “advertising as the life blood of a free media…the newspaper industry obtains 60 to 80 per cent of it’s revenue from advertising.For a democratic press the advertising ‘subsidy’ is crucial. Without advertising,’ the resources available for expenditure on ‘news’ would decline, which may lead to the erosion of quality and quantity. The cost of ‘news’ to the public would increase, thereby restricting it’s ‘democratic’ availability.” “Cutting off advertising is like cutting off the lifeblood of a newspaper and state authorities which have indulged in this form of coercion in the past have been pulled up by the court.” The absolute right of a newspaper to receive advertising “as commercial free speech” is an issue which bears further legislative review in the light of the new law.

Freedom of speech goes to the heart of the natural right of an organised freedom-loving society to “impart and acquire information about that common interest”. If any limitation is placed which results in the society being deprived of such right then no doubt it would fall within the guaranteed freedom under Art. 19(1) (a). But if all it does is that it deprives a trader from commending his wares it would not fall within that term.

 

Misleading & Surrogate Advertising:

The Consumer Protection Act, the advertising Code, the Censor Boardand the working group on Misleading Advertisements set up by the Consumer Affairs, Food and Public Distribution Department, Government of India, have all dealt with the issue of misleading advertisements. The preferred solution is to ask the advertiser to issue a corrective advertisement to neutralize the effect of misleading advertisements. In India, due to severe restrictions on advertising certain products like alcohol, tobacco products, medicines and baby food, a whole genre of misleading / surrogate advertising has emerged. In such advertising, a brand is endorsed using a product different from the actual product being promoted.

Like in the matter of United Breweries Limited v. Mumbai GrahakPanchayat, the matter of debate included the advertisements of Bagpiper Soda. This advertisement was held to be a surrogate advertisement for Bagpiper whiskey.

The National Consumer Disputes Redressal Commission, New Delhi, held that the word “soda” was used in an inconspicuous manner, while the word “Bagpiper” was boldly stated, with the baseline “India’s largest, World’s No. 3”. Advertisements canbe direct and also indirect whereby surrogate or product placement, use or trade name display, techniques are adopted but with the object and purpose of drawing attention to the object of publicity. In the present day context, direct and indirect advertisements are employed to attract attention and interest, make the product known and justify it’s consumption and use. Supply of free medicines to doctors by pharmaceutical companies has been held to be publicity and advertisement.

 

Advertising Regulation in India

The Government of India has not set up a regulatory body in India to regulate advertisements. Depending on the nature of the grievances, the power to regulate advertisements may be exercised by a vast variety of authorities, including the courts, Central and State Governments, tribunalsor the police authorities. In addition to these authorities, is the Press Council of India Act, 1978 which is also empowered to regulate press advertisements. The Council is guided by its “Norms of Journalistic Conduct”. in the regulation of advertisements. The Press Council has the power to hold an inquiry into a complaint against a newspaper and if it finds that the newspaper has violated the standards prescribed by the council, it may warn, admonish or censure the newspaper, the editor or journalist as the case may be.

India however, does have a self regulatory body dealing with both online and other forms of advertising. The Advertising Standards Council of India (ASCI) monitors certain standards and fairness in the domain of advertising. It was established in India in 1985. It is a self regulatory voluntary organization whose role and function of the ASCI is to deal with complaints received from consumers and industry against advertisements which are considered as false, misleading, indecent, illegal, leading to unsafe practices or unfair to competition and in contravention to the advertising codelaid down by the ASCI. While safeguarding consumer interests, ASCI also monitors and guides the commercial communications of practitioners in advertising. The aim of advertisement is to promote sales of products or service by affecting a purchasing decision. Although the benefits of advertising are numerous it is one aspect of marketing that is subjected to a severe criticisms. And now there is a new medium for advertisers to explore, the Internet!

While there may be no specific legislations governing online advertising in India, ASCI does recognize online advertising. ASCI’s Code of advertising and existing statutes provides necessary guidance and arsenal to combat errant advertisers. Finally, guidance may be sought by simplify reading the Terms and Condition’s of the website, the advertiser wants to advertise on. This exercise will avoid any negative repercussions following release of an online advertisement.

CONCLUSION:

Advertising as a “commercial speech” has two facets. Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product-advertised. Public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements.

The economic system in a democracy would be handicapped without there being freedom of “commercial speech”. In relation to the publication and circulation of newspapers, this Court in Indian Express newspaper’s case, Sakal paper’s case and Bennett Coleman’s case has authoritatively held that any restraint or curtailment of advertisements would affect the fundamental right under Article 19(1) (a) on the aspects of propagation, publication and circulation. Examined from another angle, the public at large has a right to receive the “Commercial speech”. Article (19) (1) (a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements.

The protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech. The recipient of “commercial speech” may be having much deeper interest in the advertisement than the businessman who is behind the publication. An advertisement giving information regarding a life saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.We, therefore, hold that “commercial speech” is a part of the freedom of speech and expression guaranteed under Article 19(1) (a) of the constitution.

 

Violence against women

 Women constitute almost half of the segment of society. Domestic violence, sexual assault, and other forms of gender-based violence deprive women and girls of their fundamental ability to live with dignity. Governments, institutions, laws, and policies contribute to the systematic devaluation of the lives and safety of women and girls by failing to respond to gender-based violence and discriminating against those subject to such violence.Despite many laws, voilence against women is on all high domains.At one side, we often hear that women are becoming the better part of society , are contributing equal with to economy, the other side is much worse.

Domestic Violence can be issued in many different ways. These include physical aggression, covert abuse, mental and emotional abuse, intimidation, sexual abuse, and economic deprivation (Damn Violence 2).Women and girls experience domestic violence and sexual assault at alarming rates. Domestic Violence is destroying families, devastating relationships, and dismantling communities in nations all over the world.Domestic Violence, or intimate-partner abuse, causes pain and suffering for individuals everywhere in today’s society.

                                      VISHAKHA & OTHERS

                                                    Vs.

                             STATE OF RAJASTHAN & OTHERS

                           (AIR 1997 SUPREME COURT 3011)

Violence continues not only at domstic places. But it is prevelant at work as well.It has been a decade of the famous Vishakha judgement.The Supreme Court took assistance from the then solicitor general of India to formulate certain guidelines and norms to help working women against sexual harassment.

Violence of any kind has a detrimental impact on the economy of a country through increased disability, medical costs, and loss of labour hours; however, because women bear the brunt of domestic violence, they disproportionately bear the health and psychological burdens as well. Victims of domestic violence are abused inside what should be the most secure environment—their own homes—and usually by the persons they trust most.The Supreme Court laid down that, “each incidence of sexual harassment of women at workplace results in violation of the fundamental rights gender equality and the right to life and liberty.

The Indian Penal Code penalizes all forms of physical violence against individuals, be it sexual in nature or otherwise. Sexual violence directed against women is governed by Section 376 of the IPC on rape and Section 354 on outraging the modesty of women.

Violence against women must be tackled on all fronts. Ending violence against women would not only help the women , but will help bringing up the economy as whole