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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Open House Debate - I

The Recent judgement of the Hon’ble Supreme Court of India, in the matter of Suresh Kumar Kaushal v. Naz Foundation and Ors., has stirred the country and given rise to a new debate on whether Homosexuality is really against the law or not. At Rajiv Gandhi School of IP Law we gave a platform to discuss the judgement, based not only on legal standards but Social and Moral standards. This post revisits the points put forth by the participants.

Before going forward we must quote from the judgement:

“The court has merely pronounced on the correctness of the view taken by the High Court on the Constitutionality of Section 377 of IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict the competent legislature shall be free to consider desirability and propriety of deleting section 377 from IPC as per the suggestion made by the Attorney General.”

The abovementioned phrase was the foundation of the first argument that was raised, it was argued that keeping the legality of carnal intercourse aside and focusing only on social acceptability, the judgement clearly identifies the right avenue to amend the law.

It was argued that “The Supreme Court is of the view that the Section 377 does not violate the constitution, However if the Society accepts is as a Non-Criminal Act, the legislature that forms the mirror of the society should decide on the removal of this section from the Indian Penal Code.”

The point to be noted here is that the Supreme Court has the power and authority to decide on whether a law is unconstitutional, this does not preclude the legislature from amending the statute and showing that the law is no longer in lines with the society.

A democracy is not about majority but it also aims as protecting the minorities, therefore such amendment must be made by the legislature.

The arguments from the other side included the scientific argument of foetal development, “when a child is genderless and homosexuality is a biological condition, therefore equating it with crime is not moral.”

Another argument was that it is historically accepted in India, and Kamasutra and Khajurao, etc. have depicted homosexual acts for generations, therefore it is an accepted act and therefore it is socially acceptable.

The argument around “behind the four wall theory” has already been dealt with by the Supreme Court where it states that “If a criminal Act is done within four walls, it does not become it a private matter.”

A legal argument made was that “Freedom to choose the partner should be left with the individual.” Everyone should be treated equally and since homosexuals are not same as heterosexuals, therefore, the rules for heterosexuals cannot be implemented for homosexuals. However, it was also pointed out that for this purpose the homosexuals must be accepted ‘legally’ as a minority which may be lead to such consideration, moreover such considerations can be taken into account by the legislature and not by the Supreme Court.

It was also argued that a strong message must be sent to the legislature by finding the law unconstitutional, however it was pointed out that this is beyond the purview of the court and would definitely come under judicial activism. The counter argument to this was that the court has acted in this manner on several other occasions. However another point that must be considered is that the whether the court will be justified in reaching such a decision as it is not the elected representative of the people and thus needs to base its analysis on a stricter point of view.

Conclusions:

1)      There is a sense that the Supreme Court could have taken more affirmative action regarding section 377, however it was pointed by some speakers that Supreme Court has legally justified its position.

2)      Law is a mirror of the society and therefore the legislature must take action to amend the IPC in order to decriminalize Homosexuality. Decriminalization should be based on the acceptability of such behaviour.

Click here to watch the video of the debate.

Inputs by Antriksh Mishra

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 author’s own and should not be considered as legal advice.

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This Post speaks for itself

I was recently asked to write a blog post for this prestigious IIT law blog by one of its founding fathers (I so like this word). My initial thoughts were to write about section 377 of Indian Penal code.

The argument was that the words “against the order of nature” in the section is ambiguous and the legislature does not have the requisite competence to use such words in a criminal statute A.K.A Colourable legislation (what you cannot do directly you cannot do indirectly).

Research on this topic was done for two weeks after which I went to our Constitutional Law professor to get clarity of the Idea (Very proudly), Our professor had to control his laughter at this Bakwaas idea of mine and explained to me that the doctrine of colourable legislation applies only with regard to testing of legislative competence according to the lists provided in the seventh Schedule of the Indian Constitution. 

Due to Peer pressure from the same person,  I started doing the thing I actually do when I do not know what to do – Google “How to write a law blog”, what came up was suggestions to write on law, doctrines in law.. oh yea.. the usual general stuff. What stood out was to communicate to readers whatever thought you are having with questions to ponder upon.

I have a liking for these doctrines such as colourable legislation (what you cannot do directly you cannot do indirectly) and concepts like Butterfly effect. So why not prove Butterfly effect using a common law doctrine?

http://www.deviantart.com/morelikethis/394290438

Butterfly effect means a small change one place in a deterministic nonlinear system can result in large differences in a later state. Though I do not understand it fully being a layman, I understand that small change at a place in a time can result in a larger change in a different place in a different time.

This got me thinking. Let us consider one of the craziest doctrines Res ipsa loquitor (the thing speaks for itself) to prove Butterfly effect.  History says these lines were used by Cicero in a speech made for his friend Milo who was accused for murdering his political enemy around 52 BCE (it seems he used a different version as res loquitor ipsa- the thing itself speaks, would have transformed into more innuendos if we would have known).

This doctrine first came into the annals of common law in a judgment by, Sir Charles Edward Pollock A.K.A Baron Pollock in the case of Byrne v.Boadle in the year 1863, when a barrel of flour rolled out of a window and fell on a pedestrian who sued the owner of warehouse. Sir Pollock used res ipsa loquitor in a brief colloquy with the counsel to shift the burden of proof from plaintiff to the defendant. He used the Latin term being a classical scholar in the best tradition of English judges (As you might have already guessed by the improvement in the language, the original article). 

Now this is a Small change in the year 1863 in England.

In the year 1987 in a developing Country (Been developing for a long time aren’t we?) in a public Interest litigation filed by Mr. M.C. Mehta (now I need to give citation – 1987 SC 965 oleum gas leak case) the doctrine was applied in spirit to shift the burden of proof from the public (here Mr. M.C. Mehta) to the industry which releases harmful gas.

In Vellore Citizens’ Welfare Forum v. Union of India((1996) 5 SCC 647)the Supreme Court sealed the shifting of Burden of proof from the person affected to the person causing the effect by introducing precautionary Principle (shifting burden of proof) which is a part of Customary International Law according to the judgment.

After this Particular Judgment the Courts in India has applied this principle in many cases and has formed an inevitable part of Indian Environmental Jurisprudence.

This is a larger change in the year 1996 in India.

So a simple statement used by a philosopher became a tort law doctrine in 1863 and now has a permanent place in Indian Environmental jurisprudence.

Butterfly Effect Proved.

Now that I have proved Butterfly effect I would go to my initial point about section 377(Disclaimer: I am not for or against section 377, I just don’t like these words “against the order of nature"). Our Honourable Supreme Court have held that Section 377 of Indian Penal code is not violative of the Constitution of India.

Our Honourable Supreme Court have been busy propounding Negative voting, disqualification of criminal law makers and many other judgments that are in consonance with the needs of the society in the year of 2013. But when it came to challenge of 377 IPC they also rejected the review petition.

This style of interpreting law according to the needs of society in a particular time is called purposive interpretation in general (in particular Objective purpose). 

The Supreme Court refrained from starting a small change which they could have done easily by easily reading sexual orientation included in sex that is given in Article 15 of the Indian Constitution.

The judges in the proceedings of the case of Suresh Kumar Koushal v. NAZ Foundation said that “20-30 years ago surrogacy would have been considered to be against the order of nature. Today it is a thriving business.” 

Some of the petitioners that was in favor of 377 IPC in the mentioned case included Tamil Nadu Muslim MunnetraKazhagam; Utkal Christian Council; the All India Muslim Personal Law Board; Trust Gods Ministry; the Apostolic Churches Alliance, tr its Bishop (there were no Hindu, Buddhists, Sikhs, Jain or other religious groups).

The Parliament while enacting Criminal Amendment Act did not consider the deletion of Section 377 as suggested by the Law commission in its 172^nd report. But the Government filed for review in the Supreme Court which was rejected by the Court and the Ministers comment on its judgment were termed as not in good taste and also unwarranted by the Supreme court.

So the Questions I am putting before you are:

1.   Has the Supreme Court created a smaller change by challenging the vote bank politics of the current Indian political system by this judgment?

2       Will it lead to a larger change during Elections?

3       Have I started a smaller change that will lead to a larger change by asking the above questions?

4      Is Butterfly Effect Real?

The one single answer I give you is res ipsa loquitor – this post speaks for itself and I am really not kidding.

Author - Narayanan H

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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