Legal Updates

We bring you the updates for last week. Hope it updates you with all the news from legal world.

Updates: 26th October to 1st November 2014.

The National Commission for Women will be a placing a proposal before a panel constituted by the Supreme Court on November 8 for legalizing prostitution in India..  The apex court had constituted the panel after a public interest litigation was filed in 2010 on rehabilitation of sex workers. The panel will deliberate on the existing provision of Immoral Traffic (Prevention) Act, 1956 (ITPA). The deliberations would focus on improved conditions that would allow sex workers to lead a dignified life. But activists have voiced their concerns over the NCW’s proposal. The legalization of prostitution goes against the ILO’s definition of ‘decent work’.

A man was arrested by cops for allegedly having sex with another man, which was recorded by his wife on a hidden camera. The man has been arrested under Section 377 of the Indian Penal Code that makes it an offense to commit 'carnal intercourse against the order of nature.' The highly debated re-instatement of the clause by the Supreme Court which was previously struck down by the Delhi HC as unconstitutional makes gay sex an offence punishable with life imprisonment.

The Supreme Court has rejected the plea by Nithari killer Surinder Koli seeking recall of the judgment upholding his death sentence in Rimpa Haldar murder case.

While applying for a passport for her child, an unwed mother will have to declare how she conceived. This was the Union Government’s reply to a query by a division bench of the Bombay HC that was hearing a petition by a woman challenging the passport authority's refusal to include her step-father's name in her passport. According to the advocate appearing on behalf of the foreign ministry, a unwed mother should file an affidavit stating ‘how she has conceived’ and ‘if she was raped’ and why she does not want the father's name included.

The CIC has held that the husband had a right to know about the amount of salary of the wife but information pertaining to expenditures and loan deductions cannot be given under the RTI Act. Amount of salary and the details of pay scale of a public servant can be a part of voluntarily disclosable information under Section 4(1)(b) but deductions, personal loans, seeking salary slips and residential address are not disclosable unless a public interest is involved.

The Delhi University will soon have its own IP policy. The IP policy will look into the patentability of the research undertaken by the students and staffs, the registration of copyright and trademark by the DU.  As per the university statistics, 168 patents are registered by Delhi University, 71 patents are under prosecution, 35 patents have been granted and 52 patent applications have lapsed.

The Ministry of Health and Family Welfare, Government of India recently issued a notification introducing a requirement that the pictorial and textual statutory warnings must cover 85% of the display area of the package. The notification, that amends the Cigarettes and Other Tobacco Products (Packaging and Labelling Rules), 2008 specifies that the pictorial warning must cover at least 60% of the area and the textual warning 25% percent of the area of the package—on both sides of the package. This move by the Government seems to be a plain packaging requirement though it is not in the purest form as in other countries like Australia and some European countries.

The US Eleventh Circuit Court has come out with a landmark ruling on the legality of course packs involving Cambridge University Press, Oxford University Press and Sage Publications against Georgia State University. GSU was indulging in digital dissemination of  course packs allowing students to obtain a digital copy of the designated course material. The Court held that the thought the excerpts were not transformative they were for a non-profitable educative purpose and it constituted fair use, despite the non-transformative nature.

We hope that this summarizes the last week's News. Your comments and suggestions are welcomed.

Until next post of weekly News updates.

Anjana Srinivasan, (2nd Year student of IIT Kharagpur Law School)

For 'OFF Court.'

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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SFZ - SMOKE FREE ZONE

A few weeks back, one night I felt sudden craving for a cigarette, so I got out to a nearby shop to buy one. The first shop had no cigarette!! No problem, IIT is full of canteens that sell it. I went on to next destination and then to another one only to find that no one is selling it.

‘This can’t be coincidence’ I thought. I asked to the shopkeeper, why all shops are out of cigarettes today? Who has bought it all?

‘IIT Director’s notice, Can’t sell cigarettes!’ the shopkeeper answered mechanically.

Of all the days, the administration was to wake up today only!!!

But why stop it now when you never gave a damn about it? There are reasons for it, but administration gave a straight forward answer. It is illegal to sell cigarettes inside campus. They are health hazards.

Absolutely right!!

But they were supposed to have never allowed smoking inside campus. It is more harmful than drinking alcohol (this is just comparative magnitude I am talking about; it does not support alcoholism at all). In fact, irreversible harm is caused by smoking, whether active or passive.

The WHO has indicated in its report that 76% of Indian films influence the youth to take up smoking and by 2020, 70% of deaths due to tobacco use, would be in the average or low income groups, especially in India and China. Almost Rs. 13,000 crore was spent in the year 2004 and it crossed Rs. 30,000 crore in less than a year, on the treatment of tobacco related diseases.[1] The effect is worse for passive smokers. Second Hand Smoke (SHS) is known to contain more than 4000 toxins which include carcinogens (cancer causing agents). Exposure to SHS leads to lung cancer and heart diseases in adults and lung diseases and other health problems in children.

Then what is government doing in this regard? For any government the very first step is a strong legislation, the second one is enforcement and then vigilant judicial activism to bridge the lacuna in the system.

Strong Legislation

India, being a major tobacco consuming nation, has its own challenge of curbing the stigma. India enacted national tobacco-control legislation namely ‘COTPA Act, 2003’ on May 15, 2003 and ratified Framework Convention on Tobacco Control (FCTC) on February 5, 2004. COTPA Act aimed to restrict tobacco advertisements, sponsorship and promotion, establishing new labeling of tobacco with strong health warning and establishing clean indoor air controls. This objective was intended by imposing restriction on smoking in public places and other related policies.

The main feature of this legislation was complete ban on smoking in public places, prohibition of sale of tobacco products to minors and sale of cigarettes and tobacco products within a radius of 100 yards (91.44 meters) of educational institutions. The term ‘public place’ (in this Act) is vague and it needs to be defined specifically.  (Section 6)

Administrative Actions

The Government of India enforced the laws with utmost sincerity.  The Union Health Ministry immediately took action by notifying Delhi Government to check and regulate the violators of the Act. Banners and Hoardings of ‘Marlboro’ were removed with immediate effect. Show cause notice was issued to the Managing Editor of the Stardust magazine for violation of provisions of the Act. Also greeting cards of Gold Flake, i.e. ‘Gold Flake Expression’ were stopped from distribution as it amounted to direct or indirect advertisement.[2]

Furthermore, the government tightened the loopholes in tobacco control rules. Ban on sale of tobacco products by minors, through wending machines, ban on display of any tobacco or related products on TV and movies, notice of health warning while any smoking scene is broadcasted, masking the brand name of such products etc. were made mandatory so that minors do not get access to such lethal smoke.[3]

No Smoking Zone inside IIT Kharagpur

What I mean to state is that the laws are stringent; the government is actively and effectively trying to implement it as well. How IIT Kharagpur, then, was overlooking the government norms? Can IITs, being an autonomous body, keeping in mind the cultural habit of West Bengal, make such rules and regulations that allow smoking in public places? Isn’t it a violation of legislative mandate? 

Is it not obvious that allowing the sale of cigarettes inside campus will provide free-rider to businesspersons to sell it to students, irrespective of them being minors or adults? IIT can be considered as a small village, a model village of our country. From far East to West and from South to extreme North, each state has sent best of their brains to nurture and evolve as prime in their respective fields. Can local culture be allowed to breach such a great cause?

On 14^th February 2008, the University of Delhi was declared “No Smoking Zone.” A movement then started and smoking was strictly prohibited in academic institutes all over the country. Unfortunately, we still fall back (greatly) in this movement.

Judiciary speaks

IIT Rules itself prohibits smoking. But when it comes to practicality, arguments are advanced with regard to local cultural habit of West Bengal. National Green Tribunal recently declared (Decision) that IIT can’t be above law and therefore it has to follow the law in toto. 

Honorable Supreme Court of India has read smoking in public places in violation of Article 21, further listing a few ‘public places’ such as Auditoriums, Hospital Buildings, Health Institutions, Educational Institutions, Libraries, Court Buildings, Public Office, Public Conveyances, including Railways, where smoking is absolutely prohibited.

In case of Cancer Patients Aid Association v. Karnataka Health and Family Welfare Dept., et. al. (2009, 2010 and 2010) at three different occasions, the Karnataka High Court has ordered complete ban on any kind of sale of tobacco or related products in 100 yards radius of academic institutes and schools. The same has been re-iterated in a case where Delhi High Court has found that such public nuisance, that harms school kids especially, cannot be tolerated.

Analysis & Conclusion

The current restriction on smoking is for hostel areas and associated canteens only. Although, after a few weeks, today students can be seen smoking all around. A few hostel shops continue to sell cigarettes to students. Furthermore, putting all laws, regulations and Hon’ble Supreme Court’s orders at stake, our own IIT Kharagpur continues to allow sale of cigarettes at certain places inside the campus.

Does a common sense or the legal understanding of ‘campus area’ and ‘in radius of 100 yards’ will exclude certain areas, if it is physically located inside IIT? In fact, these places are very common and are even accessible to school students. Special privilege is provided to these places which cannot be justified by any means. This also creates a possibility of abuse of such dominant position which is endorsed by the administration itself.

There are shops inside academic buildings that sells cigarettes. This particular shop is situated at the center of auditoriums and classrooms. The most famous canteen in IIT was never restricted by this particular order.

The IIT administration, especially the top management, has shown strong will and has put commendable effort to restrict smoking activities. But, with all due respect, they should act stronger and send a clear message that we are not supposed to create smoke free zones in different sectors of IIT, rather the whole IIT-Kgp is a 'Smoke Free Zone.'

This is not a matter that requires a crusade, it’s a simple matter with minimal of brainstorming. Law is as clear as a raindrop, so is the morality. Right to life includes a ‘Smoke Free Environment’ and such right cannot be diluted with any regulation or any discount in rules. This not only concerns the kids and youth but also concerns the future of India.

P.S. : With this article, I tend to create an awareness that we should all pledge not to smoke inside IIT campus or in 100 yard radius of IIT and understand that we can cherish our liberty, but not at the cost of discomfort to others.

Author - Manish kumar

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] Notice dated 10th February 2004 by Ministry of Health and Family Welfare. (http://pib.nic.in/newsite/AdvSearch.aspx)

[2] Notice dated 19th January 2005 by Ministry of Health and Family Welfare.  (http://pib.nic.in/newsite/AdvSearch.aspx)

[3] Notice dated 5th December 2005 by Ministry of Health and Family Welfare.   (http://pib.nic.in/newsite/AdvSearch.aspx)

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