CASTRATION – A SOLUTION?

Author: Pulkit Gopalkrishan Popli, (2nd Year student of IIT Kharagpur Law School)

“Issue writ, direction or order to the Union of India, the respondent No. 1 to consider to impose castration as an additional punishment for child sex abusers and child rapists;

Issue writ, direction, or order to the respondent No.2 (Ministry of Women and Child Development) to frame guidelines in regard to the protection of the children from sexual abuse and impose castration as an additional punishment for the rape of the minor girls to protect their constitutional rights.”

Source: Google Image

This was the prayer of the Supreme Court Women Lawyers Association (SCWLA) v. Union of India & Anr.[i] that was heard by the Honorable Supreme Court by the bench of Justice Dipak Misra and Justice NV Ramana on January 11, 2016. The bench clearly mentioned that the law should not be made sentimentally or emotionally and distanced itself from issuing any such direction or punishment as there is a law already available for the same. But the court further said that the parliament may go on to amend the penal provisions to award the harsher punishment for raping girl child and may also define the term 'child' in respect of rape as the offence.

Castration as defined by the Merriam Webster’s dictionary means the removal or to deprive of the testes. The Castration may be done surgically or chemically by anti-androgens. The demand of castration as punishment for the sexual offences is not new and has been voiced from time to time.  The Madras High Court in October 2015 in the case of Jonathan Robinson v.  The Inspector of Police[ii] perhaps got sentimental or emotional about the same offence and went on to suggest the castration as the punishment. Justice Kirubakaran in this judgment in the very first paragraph has very strongly and heavily recommended the punishment saying that the brutality of the offence would justify the punishment. Further, taking a dig at the Human Rights Activists, Honorable Justice has said that they are aware that there would be a lot of hue and cry by the people who claim themselves as the Human Rights Activists but they should also think about the human rights of the victims and the agony and suffering that they have suffered.

Justice Verma Committee Report of 2013 in paragraph 40 on the Castration as penalty mentions

“We note that it would be unconstitutional and inconsistent with basic human rights treaties for the State to expose any citizen without their consent to potentially dangerous medical side effects. For this reason we do not recommend mandatory chemical castration of any type as a punishment for sex offenders. For the same reason the government of India also does not prescribe chemical castration as a family planning method.”

If the reliance is put on the report of Asian Centre of Human Rights, India's Hell Holes: Child Sexual Assault in Juvenile Justice Homes, more than 48,838 child rape cases were recorded from 2001 to 2011 and that India saw an increase of 336% of child rape cases from 2001 (2,113 cases) to 2011 (7,112 cases). The report of National Crime Records Bureau 2013, in Chapter 6 very proudly mentions that a total of 12,363 cases of child rape were reported in the country during 2013 as compared to 8,541 in 2012 accounting for an increase of 44.7% during the year 2013. Maximum of child rape cases were reported in Madhya Pradesh (2,112 cases) followed by Maharashtra (1,546 cases) and Uttar Pradesh (1,381 cases). These three States together accounted for 40.8% of the total child rape cases reported in the country. On an average, 3 children out of one lakh children population are victims of rape. For population of every one lakh children , maximum of such incidents were reported in Mizoram and A & N Island (16 children each) followed by Delhi (14 children), Sikkim and Goa (12 children each).

Though there has been a strong rise in the support for the abolition of death penalty and harsh punishments such as castration, Guam has recently passed “Chemical Castration for Sex Offenders Act” in September 2015 which requires the chemical castration of the offenders going out on parole to minimize the risk. This Act was passed after the alarming rise in the number of Children related offences in Guam. It has also received a mixed response.

Now, with the huge number of the offences throughout the country, it is hard to predict whether the sentiments of Justice Kirubakaran are in the right direction or the logics of Justice Misra and Justice Ramana. But one thing is clear that India is one of the 5 countries with the highest number of Child abuses and this problem needs immediate and effective solution, either by parliament or by judiciary. 

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[i] Writ Petition (C) No. 4 of 2016 [PIL]

[ii] Crl. O.P.(MD) No. 11735 of 2014

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Of Assignments, Licenses and other Demons thereof

Author: Narayanan MH, 3rd Year student of IIT Law School, IIT Kharagpur

The title of this blog post amuses the author as much as it amuses its readers, as the author during his initial year in law school always got confronted by one question,
“What is the difference between an agreement and a contract?”

Being from a non legal family background the author answered:

“Section 2(h) of Indian Contract Act: an agreement enforceable by law is a contract”

But nearing the last few months of his legal studies, after few fruitful classes, discussions, and internships, the author learned that it is not as simple as stating section 2(h).

The author considers the Contract Act, 1872, to be one of the essential guide for a law student to begin his/her/third gender’s (Supreme Court now recognizes them) legal journey and hence would like to share his limited understanding of the answer to the above question before venturing into the title.

In layman’s words section 2 states that a Person A who for the purpose of getting assent of Person B proposes to do an act (includes abstinence) and Person B accepts it, then Person A becomes the promisor and Person B becomes the promisee. The accepted proposal becomes a promise.

For example the owner of this blog offering the author to publish his article and the author accepting the proposal makes it a promise.

Section 2(d) states consideration as an act, abstinence or promise of the promisee—Person B (past, present and future of doing) at the desire of promisor—Person A.

 

If a promise accepted by Person B has a counterpart of consideration to Person A it is an agreement. (Section 2(e)).

Continuing with the example stated above the author agreeing to pay Rs. 200  as publishing charge to the owner of blog makes the promise an agreement and the promise or act of paying Rs. 200 becomes consideration.

Now that agreement is understood the important section for understanding the meaning the section 2(h) (legally enforceable agreements) is section 10 of the Contract Act.

Section 10 seeks compliance of 4 conditions from an agreement to make it a contract:

·           Free consent (Section 14)

·           Competency of Parties (Section 11)

·           Lawful consideration (Section 23)

·           Lawful object. (Section 23)

Both the author and the blog owner are of legal age (competent) and gave free consent for the agreement. Hence, it is now enforceable by law becoming a contract. If the author does not pay Rs. 200 to the blog owner after this article gets published then the blog owner can move the court to enforce the contract.

From the above explanation, the author understood the difficulty in comprehending one of the shortest bare acts in law school and hence restricts himself to the question without going into further legal intricacies like consensus adidum, if the readers are interested they can do research on the following questions:

       Difference between void, voidable and illegal agreements and contracts?

       Difference between a deed and an agreement?

Coming back to the title, hindu mythology being one of the most fascinating mythologies of the world often portrayed demons as powerful as gods. In one such mythology, demons have the power of rising from the blood spilled from another demon and also have the power to deceive the seer. But the seer can find the demons if he knows what to look for amidst their varied appearances, hence the use of demons in the title.

The motive of the author here is to make the reader aware of these demons namely, assignments and license and their ability to deceive the seer.

Now that the author has researched and wrote this article, he cannot just like that give away this article to the blog owner for publication without being aware of his rights. The author by virtue of Copyright Act, section 14 has several rights from now on called “Bundle of Rights” (as used by the author’s Copyright law professor).

The 200 rupees given to the blog owner has 20-10 rupees note, likewise the bundle of rights have many individual rights like right to communication to public, right to translate, right to sell copies etc.

Assignments, licenses are the instruments used to legally transfer/permit the others to use one’s right.

License can be simply termed as permission from the way it is used in daily life like driving license, shop license etc. When a license is granted the main thing to be remembered is the licensee is not the owner, he just has permission to use the right.

If the author permits the blog owner to publish this article in his blog, the blog owner can do so only in this blog, while the author holds the rights to publish this article anywhere else.

Assignment on the other hand is assigning a right, if the author assigns the right to publish to this blog owner, then the author can never publish this article anywhere, but that does not take away the authors other rights in the bundle.

Thus, the essential elements in understanding licenses and assignments are that there are multiple rights, they can be either assigned fully or grant permission to others to use.

The reader must also note that there can be many varieties of this assignments and licenses based on the term of the contract like time, name of right, area, and others.

As an end to this article the author would term contract law as ‘Nothing’ with two quotes.

Quote 1: “You ain't seen nothin' yet.”  -AL JOLSON

Quote 2: “Nothing is an awe-inspiring yet essentially undigested concept, highly esteemed by writers of an existentialist tendency, but by most others regarded with anxiety, nausea, or panic.” - P. L. HEATH- 

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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The Art of Secularism

Author: Antriksh Mishra, 3rd Year student of IIT Law School, IIT Kharagpur.

"India is my country and I am proud to be its citizen"—one thing which no Indian will think twice before speaking. Now let’s change the parameters a little–"Hinduism is my religion and I am proud to be a Hindu." Now that is something people think twice before speaking. It has happened to me and to many others I know. 

In this post I would try to dwell the reasons for such hesitation. Let’s begin with Art. 25 of the Constitution of India, the famous "Freedom of Religion" clause. Firstly the clause allows "all persons" to "practice", "profess" and "propagate" their religion. This would include all individuals whether or not citizens of India.

The words "practice", "profess" and "propagate" cover any and all religious activities, even asking other persons to join your religion (as long as such joining is without force or consideration) is allowed (as mentioned by K. Santhanam during the Constituent Assembly Debates). And this beckons the question, "Why the hesitation?"

One might say that the answer is more of a psychological nature than legal. I would however respectfully disagree. The answer is more related to Indian Polity and Law than to Psychology.

Let’s start from the common understanding of the word secular and try to answers some fundamental questions.

1. Is being secular the anti-thesis of being religious?

The answer to this is a quite emphatic “No”. If being secular were the anti-thesis of being religious, both of these could not have found place in our Constitution. Secularism as referred to in the Preamble and religious freedom as referred to in Art. 25, as propounded by The Keshvananda Bharti Judgement, find their place in the basic structure of the Constitution. (Notwithstanding my objection on the way the Keshvananda Judgement was delivered, and how Justice HR Khanna's opinion was not similar to that of the other three majority judges, It is still the law of the land.)

2. Does being religious mean you must follow all preaching of a faith?

Again the answer would be an emphatic a “NO”. Take for example Galileo or Darwin, both of them asked questions and were subjected to great persecution, but today Christianity has evolved and accepted (to a certain extent) their theories, while they were devoted Christians till their dying breath. Now for the legal stand lets read Art 19 and Art 25 together, I have the right to free speech (which allows me any question on any religion) and Freedom of religion (which gives me freedom to choose religion), so no one has the right to doubt one’s faith in a religion, or stop him from practicing a religion based on questions raised by a follower. Religion (in theory) must welcome and clear doubts.

3. When one calls oneself proud to be of the Hindu faith does he become a zealot?

And again the answer is  a ”NO”. What faith you follow is a personal question, whether you choose to be vocal about it is a personal choice. As long as you don't hurt another faith how can there be a question of being a zealot. And this is where Politics comes into the picture. Hinduism in India seems to have become synonymous of RSS or BJP or the Babri Masjid incident. But frankly it is not. Not withstanding the fact that RSS ( the then Hindu Mahasabha) was the only organization other than the Muslim league to not take part in the Quit India movement and their chief in 2006 claimed that Quit India Movement was a failure.  In all fairness the public services done by RSS, Hinduism and Hindu extremists are two different things,just as Muslims are different from Muslim extremist. One does not equate the practices in Muslim majority State of Turkey to that of Saudi Arabia then why isn't such a differentiation available for the Hindu faith. As per the principle of equity Hindus have the same rights and responsibilities as the other minority classes in India. And by virtue of being the majority, the Constitution does not bestow upon them, a higher degree of responsibilities than the other faiths.

I am proud to say that I am religious, I am proud to say I am a Hindu and I am proud to say that I am a Bhartiya, an Indian, a Hindustani (which is actually derived from Indus, but Hey! propaganda is spread by use of selective dissemination of facts, as recently) and still I am secular. I respect other faiths, I ask questions about other’s and my own faith and I wish to leave my faith to future generations, evolved, than what it was when I had it. In this regard I agree with Mahatma Gandhi's views.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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Transfer of a Judge

Author :  Pulkit Gopalkrishan Popli, 1st Year student of IIT Kharagpur Law School.

Often the judgments delivered by various courts receive various responses on the basis of credibility, justice served, equitable grounds etc. But recently a judgment delivered by Chief Justice of Kerala High Court sparked a controversy. The reason of the controversy was that Hon'ble Judge Manjula Chellur has been transferred to the Kolkata High Court where she assumed the charge on 5th of August. The transfer warrant was signed by the Honorable President on July 21 while the verdict on case was delivered on July 25. The verdict declared the 2007 eviction-drive in Munnar as illegal. The question arises, could a judge still deliver judgments after a transfer warrant was issued?

As per Article 222(1) the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. According to the Delhi High court rules,

“Every District Judge or Sub-Judge proceeding on leave or transfer, must, before making over the charge, sign a certificate that he has written judgments in all cases in which he has heard arguments. Should an officer be forced to lay down his charge suddenly, he shall, nevertheless, write the judgments in such cases, and send them for pronouncement to his successor.[1]”

This article along with article 217 has been the center of controversies. Article 217 states that 

“Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years Provided that-

              (a) a Judge may, by writing under his hand addressed to the President, resign his office;

             (b) a Judge may be removed from his office by the President in the manner provided in clause ( 4 ) of Article 124 for the removal of a Judge of the Supreme Court;

           (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India”

In the Landmark Judgment of, S.P.Gupta v. Union of India case^[2] which is the last judgment of judge’s case trilogy, could be used to answer various queries regarding the transfer of judges.

In paragraph-900 at page 543 it was discussed whether how court views the transfer of judges? It was said that it is a transaction that takes place in two parts, the first is termination from the original high court and the second is the simultaneous appointment in the other high court.

This view is supported by the circumstance that the power of transfer is vested in the President. It is significant in this connection that the President is also the appointing authority in the case of appointment made under Clause (1) of Article 217 and is also vested with the power of removal in cases falling under Article 218 read with Clause (4) of Article 124. Therefore, it was necessary that the authority who has been otherwise vested with the power to appoint a Judge and to terminate his appointment should also be the authority to transfer him. It may be added that inasmuch as the transfer constitutes an appointment of the Judge to the other High Court. Article 219 comes into play and, therefore, the transferred Judge must, before he enters upon his office in that High Court, make or subscribe an oath or affirmation according to the prescribed Form.

Now the question that arises that the article stated that the office of the judge will be vacated by him while being transferred by the President to other high courts. So can we say that the judge that has been issued the transfer warrant can no longer work as a judge until he has joined the new high court? One of such questions arose in a case M.K. Sasidharan, Advocate Supreme Court and President v. The Hon'ble Chief Justice of India, Supreme Court of India and Ors.^[3]The Petitioner, an advocate practicing in the Supreme Court filed the Original Petition praying for the issue of a writ of Quo Warranto calling upon the 5th Respondent, a Judge of this High Court who has been transferred to the High Court of Gujarat, under what authority he has been discharging the functions as an Additional Judge of the High Court of Kerala. The 5th Respondent was appointed as an Additional Judge of the High Court of Kerala under Article 217 of the Constitution of India. He had sworn as a Judge of this Court on 11th April 1996. By virtue of powers vested in the President of India under Article 222 of the Constitution, the 5th Respondent was transferred to the High Court of Gujarat. He was given time till 9th May 1996 to assume charge as Judge of the Gujarat High Court. Later the President of India in consultation with the Chief Justice of India had granted extension of time from time to time up to 22nd July 1996. In the meanwhile the 5th Respondent was functioning as a Judge of this Court, hearing and disposing of cases. It was contended by the Petitioner that on his transfer to the Gujarat High Court, the 5th Respondent was ceased to be a Judge of this High Court and that he has no right or authority to discharge the duties of a Judge of this Court

In the judgement to this case, the court also said in paragraph 18:

“The prayer of the petitioner to issue a writ of quo warranto is not maintainable as the 5th respondent was appointed as an Additional Judge of the High Court of Kerala by the President of India in consultation with the Chief Justice of India and the warrant of appointment still holds good and he had been given time to assume office till 22-7-1996. He continues to be a Judge of this Court for all practical purposes.”

Thus from this case we can easily conclude that a judge continues to remain judge until she/he gets relieved from the previous court, not when she gets the transfer warrant but in order to maintain the spirit of the constitution it is preferred that they vacate it as soon as possible. So applying same standards in the case of Judge Manjula Chellur, it was duteous of her to deliver the judgment which and her authority of deliverance is not dubitable under law and complies with the spirit of constitution.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[1]http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_AF9J1IE4.PDF

[2](AIR 1982 SC 149)

[3]AIR1997Ker35

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Parallel Judiciary in India

Author - Abhishek Chansoria, 1st Year student of IIT Law School (RGSOIPL).

The governance of our country rests on three pillars: the legislature, the executive and the judiciary. It is the Constitution which has bestowed these separate powers on the three. The same Constitution has left some elbow-space for the personal laws of an individual providing for non-intervention of the State in the personal issue of an individual, namely religion. But, what happens when this personal religious institution takes up the job of any of the three? Will the policy of non-intervention still hold its importance? If it doesn’t, then when does the need of such intervention arise?

The major personal laws in force in India are the Hindu and the Muslim laws. Every common law has been formed and subsequently evolved according to the comforts of the society. Be it the patriarchal northern India based on Aryan lines, or be it matriarchal southern and eastern India influenced by the Dravidian society, both have been churned with time to suit the ever growing society. Whereas it is evident that the Muslim laws have a heavy bias towards the male counterparts, the Hindu polygamy practices before the Srinivasa Aiyar v. Saraswathi Ammal, 1951 and the subsequent Hindu Marriage Act 1955 also reflect the plight of women. The government’s stance to abolish polygamy in Hindus was a blazing example of a legislation driving a social change.

In the Muslim communities, the practice of issuing Fatwa is a grave over-exercise of jurisdiction by an institution. In the judgment given by the Supreme Court of India in Vishwa LochanMadan v. Union of India, fundamental rights given to the people are considered to be above personal and religious norms. Article 13 of the Constitution states that every law which is in contravention with the Constitution is void. From the very first day of the enactment of the Constitution, certain fundamental rights have been recognized. Hence, every action violating our rights is void. A fatwa is not given a legal mandate and hence it has been left at the choice of the individual to follow the same. The authorities issuing Fatwa do not draw its power from any legislation, hence, the concept of deductive reasoning simply tells us that the Fatwa also do not hold any legal sanctity. In the words of the Supreme Court- “The power to adjudicate a provision must flow from a ‘validly made law’”, which involves the legislature. The religious institution should exercise advisory actions pertaining to the need for a balanced solution approach.

The khap panchayats are infamous for their orthodox and conservative stand in inter-caste marriages. A myriad of cases of honor killings are coming forward with every passing day.

Along with the analysis of the need to check certain authorities from over-stepping actions, it is imperative to acknowledge the social evils addressed by the same authorities. As we know that a Muslim community in Pakistan and a Muslim community in India have the same religious genesis but what is different between the two societies is the political will which has driven them further. On one hand, the handful amendments in the Muslim personal law show the political escapism in our country, and on the other hand, the drive to acknowledge social changes which is a proof of political desperation is surfacing in Pakistan.

In the last week of May, 2014 the religious leaders of Pakistan issued a Fatwa stating honor killings as an "Un-Islamic" act. The leaders opined that daughters are the gifts by Allah and being dishonored by them is forbidden in Islam. There is a need to look at our neighbour’s religious approach to the common laws.

A fatwa which is issued for curbing the practice of honor killing, hence upholding the right to life, liberty, free will of women and men shows the institutional responsiveness to address the social evil. Whereas, the authorities in India issue a fatwa, which is prima facie so retrograde, "advising" a rape victim to marry the rapist, who is her father-in-law. The fatwa also stated that her husband can no longer keep any physical relationship with her as it is written in Quran that "Marry not the women whom your father copulated".   

 

Talking about the khap panchayat’s involvement in evils like honor killing, a question on the authority of the Khap needs to be answered. From where do they draw the power to adjudicate such draconian laws? The Supreme Court of India has used the term “kangaroo courts” for such institutions. But, a critical point of analysis remains that, though we have a well written Constitution along with its machinery, still the provisions dictated by such authorities are recognized by a large part of the population under them. Doesn’t it show the social status and acceptance enjoyed by them?

As it is well evident that the three pillars of our democracy have somewhere lacked in filling this lacuna between the people (affected by such Fatwa and Khap) and their constitutional rights, hence it will be prudent to use the authorities already present on the ground for the constitutional realization. This can be done by strict and careful regulation on such institutions and there powers. The khappanchayats have been blamed for the honor killings, but recently a Khap namely, 'Satrol KhapPanchayat' in Narnid village, Haryana, has come forward with its ideology which is far from conservatism. The Khap hasagreed with the truth that interaction between men and women has increased andstopping it is not possible. The decision given by the five-member committee has loosened the knot by allowing marriages in 42 villages which were earlier banned. Also, it has shown desperation is curbing female foeticide, bride sharing and dowry.

We can conclude that whatever be the laws; personal or statutory, should not go against the Constitution. The Constitution is above every personal law as it ensures happiness for all not on the basis of religion but on the lines of individual dignity.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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They have all the Answers!!

Author: Antriksh Mishra, 3rd Year student of RGSOIPL, IIT-Kharagpur.

Our politicians seem to have all the answers, especially when it comes to crimes like rape. What is the need of Psychologists, Criminologists and Legal experts when we have great minds like Mulayam Singh Yadav, Abu Azmi, Mohan Bhagwat, Abhijeet Mukherjee to replace them.

I will not state what these leaders have said as they have already received enough coverage in the social, print and electronic media.

Recently another suggestion came from the Gandhis of the BJP. Varun and Menaka suggested that if a juvenile commits rape he should be punished as severely as an adult under the IPC. To quote Varun“If he is old enough to rape he is old enough to be punished for it.”

But Varun that is not true, in fact a child’s involvement in any kind of crime proves that he is misguided and troubled.

And why just amend the law relating to the crime of rape? How is murder any different? Just because rape has been a hot, sensational and most talked about topic ever since the Delhi Rape case made headlines and the politicians hope to garner more political mileage and make more headlines by speaking out against it. Not that today’s political class would ever be involved in political appeasement.

To respond to Mr.Varun Gandhi’s statement, of course a juvenile is old enough to have sex, aren’t we all by the age of 15? That doesn’t mean we are old enough to understand the rights and wrongs of the society.

The age of puberty and the legal age of adulthood are two completely different things! These juveniles have no counsel or guidance to make them understand the rights and wrongs of the society. They are children struggling to find a place for themselves among their elder counterparts. So whose responsibility is it to provide them with proper counselling and guidance? Oh Yes!! There is a ministry set up for that purpose it’s called “The Ministry of Women and Child Development” and you’ll never guess who the Hon’ble Minister associated with this ministry is… Yes it is “Menaka Sanjay Gandhi.”

Their motto is “Holistic Development of Women and Children”and to achieve this they have adopted “The National policy for Children, 2013” which includes providing such guidance and help to children.

But all that was before the Minister had this epiphany.Now the meaning of “Development” has changed to “Developing children into Criminals.”Wow that is some idea! The political class has done it again, congratulations to yet another leader to come out with another brilliant idea. We the people of India can really get used to this.

What one fails to understand is why some activist and lawyers keep insisting on opposing such a game changing idea?

Ms Ved Kumari an expert on juvenile Justice Law and ex chairperson of Delhi Judicial Academy insists,

“Juvenile's involvement in the acts of 'adult' crime such as murder and rape does not imply maturity. On the contrary, it is direct evidence of vulnerability of juveniles to reckless behaviour. Once the juveniles are dealt under the criminal justice system, the children will turn much worse psychologically and are likely to commit crime again.”

Athiya Bose, an activist for the welfare of juveniles says“Studies from the western nations have already suggested that such initiatives are a failure and it becomes difficult for children to come back from the trauma that they suffer under the adult justice system.”

Nah!! What do they know? What makes them the experts? Other than having worked in the field of law and juvenile justice for the last decade.

Our politicians know better! They always have all the answers.

 Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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The Right to be left alone – Can the internet catch up?

Imagine a scenario where you create a personal webpage, control access to the content of this page by issuing account names and passwords to co-workers who would e-mail you for requesting access, and post critical comments about your employer. Your superiors at work gain access to it by using the credentials you provided to a co-worker, and as a result of him seeing your posts on that page, you are fired. 

These are facts of an actual case^[1], and the decision of the courts would suggest that this act of employer’s eavesdropping would put the act of accessing a private group on a social networking website in the category of intrusion upon seclusion, when private information in a private space is surreptitiously overseen or overheard.

When eight major US tech companies – Apple, Google, Microsoft Corp., Twitter, LinkedIn Corp., Yahoo Inc., AOL Inc. and Facebook – on December 9, 2013, called for tougher controls of how governments collect people’s personal data, opening a new front in the fight for Internet security, they had but one purpose – Protection of “the rights of the individual – rights that are enshrined in the US Constitution”.

The Constitution of India, in contrast, does not explicitly guarantee the Right to Privacy as a fundamental right. However, in India it is the judiciary who has taken up the mantle of bringing the Indian legal position on par with that of the First World countries by recognizing the concept of “privacy” because neither the Constitution nor any other statute in our country defines this concept.

In the landmark cases, Kharak Singh v. Stateof U.P^[2] and Govind v. State of M.P.^[3], the Supreme Court has held that the right to privacy is one of the implicit penumbral rights of Article 21 of the Constitution. It has observed that personal liberty is a compendium of rights that go to make up the personal liberty of an individual and that the right to life mentioned in Article 21 of our Constitution is only exercisable if such penumbral rights of an individual are given due regard.

In the recent “Tax Haven” case^[4] of 2011, the judgment delivered by Justices P. Sathasivam and H.L. Gokhale of the Supreme Court reads:

"Right to privacy is an integral part of right to life. This is a cherished constitutional value, and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner."

The Indian legal framework lacks a comprehensive law for handling privacy issues such as the classification of information into sensitive, public and private, determination of ownership of information, or the issue of cross-country flow of information. It is even more appalling that despite being a global power in IT, laws pertaining to Privacy Rights and Data Protection in the Cyberspace are almost completely missing in India. The IT Act in its 2008 amendment merely touches the issue of privacy under Section 72 which talks about breach of confidentiality and privacy. 

In 2011, the Department of Electronics and Information Technology notified the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011. However, the implementation of these rules is still shrouded in a veil of confusion. For instance, in a research exercise conducted (by the author) to find out the extent to which the privacy policy of social networking website, it was found that a substantial portion of LinkedIn Privacy Policy  does not conform with any of the provisions of the Information Technology (Reasonable Security Practices And Procedures And Sensitive Personal Data Or Information) Rules, 2011.

In his 1960 paper, Prosser who was a prominent American jurist, defined the civil offence of “intrusion upon seclusion”, which can be described as intentional or reckless conduct which result in the invasion of private affairs or concerns of an individual, without lawful justification and can reasonably be understood to cause distress, humiliation or mental anguish to that individual. 

While this principle has long been recognized by the American legal system, the Common Law system existing in India does not currently recognize “intrusion upon seclusion” as an unlawful act. However, the courts in other common law jurisdictions such as Canada and New Zealand have recently begun to recognize the invasion of privacy through intrusion upon seclusion as a tortious action through their judicial pronouncements.

The Supreme Court, which is the apex judicial body in India, by way of its aforementioned judgments not only highlighted the significance of the right to privacy as part of one’s fundamental right, but also lay upon the State, the responsibility of protecting the privacy of its subjects from unlawful breach. In October 2012, as an encouraging sign of things to come, the Justice A.P Shah Committee in its report outlined nine National Privacy Principles and submitted its recommendations to the Planning Commission, Government of India. 

This, however, is only the first step on the road to framing effective privacy laws and the need for a set of unified Data protection Laws and Laws to enforce Privacy Rights in India cannot be understated, which once enacted will have serious implications for our daily lives as well as for the conduct of Indians in cyberspace.

Kindly consider the following well-known controversial examples of cyber-snooping. Ad-supported web content providers such as Facebook and Google track users’ online activity and then present them with personalized advertisements. 

Facebook, for instance, places “cookies” on its users' computers that enable the company to track the users' web activity even after they have logged out of the site, according to a 2012 US class action lawsuit. “Facebook maintains personal information pertaining to each individual as well as monitors the individual online habits of their users keeping track of websites they visit”, the complaint filed says. 

Google, similarly, records each and every letter you type in its search engine box irrespective of whether you’ve actually hit the search button or not. Moreover, it builds a profile for you based on their individual long term search history and uses these to improve the specificity of the ads which are served to you.

The extremely rapid emergence and extensive reach of social networks such as Facebook and Twitter have unintentionally led to the rise of unethical practices such as cyber-stalking, cyber-snooping and phishing which have till date gone unchecked in the Indian legal framework. The question which ultimately arises with respect to the internet age is: Can one protect the “right to be let alone”, as outlined by Samuel Warren  & Louis Brandeis in their 120 year old seminal paper^[5] in the Harvard Law Review, in a communal environment that thrives by bringing people together? 

Can one virtual entity assert invasion of privacy against another virtual presence in a real court of law? The answer to these questions would also show us how the tort of intrusion upon seclusion may be applicable to invasion of privacy in the virtual world.

Author: Aastha Dhingra

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[1]Konop v. Hawaiian Airlines, Inc.,236 F.3d 1035 (2001)

[2]Kharak Singh v. State of U.P, 1963 AIR 1295

[3]Govind v. State of M.P., 1975 AIR 1378

[4]Ram Jethmalani v. Union of India,  (2011) 8 SCC 1

[5] Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890)

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