Oops! It appears that you have disabled your Javascript. In order for you to see this page as it is meant to appear, we ask that you please re-enable your Javascript!

This was made for referential purposes only. The content on this site is made for fair use and for understanding. None of this is official, it has been made by collaborating from websites, articles, and books. The major content avaialble on the Answer bank is made by compiling docuements whicha are available on the Notes Section of the site. The Site does not take responsibility for someone’s Grades.

The Use of the Site is completely an individuals choice and responsibility.

This website is still Under Development, and on the verge of constant improvement


Thank you for bearing with us, and Enjoy Reading!

If there are any suggestions, mistakes, or issues, Reach out on
epsit.ghodke@gmail.com

Printing of this file is not allowed. Follow me on my Instagram Account, to connect with me

THE INDIAN PENAL CODE

In order to cover crimes and court cases with clarity and detail, a journalist is expected to know a fair bit of Law. Like for instance, the Indian Penal Code (IPC). It lists all the crimes that happen in a society and the punishment prescribed for them. In the IPC, every offence has been mentioned and also what kind of punishment or penalty it gets. The punishment is usually a jail term and/or monetary fine.

Although, a journalist doesn’t have to learn the entire IPC, what is necessary for him is to understand and know at least those provisions which concern his profession and about which he has to write often. Crimes and court cases are an everyday affair and most newspapers/electronic channels have a team of reporters who cover them. Majority people are interested in reading crime stories because they affect the entire society. It is, therefore, necessary that a journalist understands the IPC and its provisions.

The IPC was enacted in 1860. Since then, it has undergone many amendments, necessitated because of the circumstances. It applies to all Indian citizens. There are as many as 511 offences listed in the IPC.

PRESS COUNCIL OF INDIA

RATIONALE AND VISION: The Press Council of India (PCI) is an autonomous (independent) and regulatory body established to preserve the freedom of the press. It is also meant to maintain and improve the standards of newspapers and news agencies.

The Council was primarily formed to design a code of conduct for newspapers, news agencies and journalists so that they maintain high ethical and professional standards.

The first of the principles were formed by the PCI in 1983-84. These were updated in October 1992. As the PCI came upon and dealt with more and more cases relating to journalistic ethics, the principles were updated, moderated and modified.

In 1995, the then chairman of the PCI Mr Justice P B Sawant further revised and updated the guide to journalistic ethics.

To discharge these functions entrusted to it, the Council has to frame a code of ethics for those engaged in journalism and to enforce it. The Council over the years has built up a code of ethics covering aspects of journalism which came to the fore from time to time.

Whenever there is a dispute or complain about newspapers, or journalists breaching this code of conduct, the Press Council of India adjudicates on it.

There have been some additions to the ethical code on important aspects such as financial journalism and pre-poll and exit poll surveys. The council decided to publish and update code. Besides the ethics, there are also contains references to the provisions of the Constitution and of the various statute laws which have a bearing on the print media.

The PCI is also empowered to hold hearings on receipt of complaints and take suitable action where appropriate. It may either warn or censure the errant journalists on finding them guilty. It did so on 21 July 2006, when it censured three newspapers — Times of India (Delhi and Pune), Punjab Kesri (Delhi) and Mid Day (Mumbai) — for violation of norms of journalistic conduct. The PCI is protected by the Constitution and its actions may not be questioned unless it is proved to be in violation of the Constitution.

BRIEF HISTORY: The Press Council of India was first set up in the year 1966 by the Parliament on the recommendations of the First Press Commission with the object of preserving the freedom of the press and of maintaining and improving the standards of press in India. The present Council functions under the Press Council Act 1978. It is a statutory, quasi-judicial body which acts as a watchdog of the press. It adjudicates the complaints against and by the press for violation of ethics and for violation of the freedom of the press respectively.

STRUCTURE: The Press Council is headed by a Chairman, who has, by convention, been a retired judge of the Supreme Court of India. The Council consists of 28 other members of whom 20 represent the press and are nominated by the press organisations/news agencies recognised and notified by the Council as all India bodies of categories such as editors, working journalists and owners and managers of newspaper; 5 members are nominated from the two houses of Parliament and 3 represent cultural, literary and legal fields as nominees of the Sahitya Academy, University Grants Commission and the Bar Council of India. The members serve on the Council for a term of three years. The Council was last reconstituted on May 22, 2001.

The Council is funded by revenue collected by it as fees levied on the registered newspapers in the country on the basis of their circulation. No fee is levied on newspapers with a circulation of less than 5000 copies. The deficit is made good by grants by the Central Government, through the Information and Broadcast ministry.

COMPLAINTS, PROCEDURE and powers: The complaint against a newspaper for any publication the complainant finds objectionable and affecting him personally, should first be taken up with the editor or other representative of the publication concerned.

If the complaint is not resolved satisfactorily, it may be referred the Press Council of India. The complaint must be specific and in writing. It should be filed/lodged within two months of the publication of the offending news item in case of dailies and weeklies and four months in all other cases, along with the original/photostat copy of the news clipping The complainant must state in what manner the publication/non-publication of the matter is objectionable, and enclose a copy of the letter to the editor, pointing out why the matter is considered objectionable. The editor’s reply thereto or published rejoinder, if any, may also be attached to it. A declaration stating that the matter is not pending in any court of law is also required to be filed.

If a newspaper or journalist is aggrieved by any action of any authority that may impinge on the freedom of the press, he can also file a complaint with the Council. The aggrieved newspaper or journalist may inform the Council about the possible reason for the action of the authorities against him i.e. if it is as a reprisal measure taken by the authorities due to critical writings or as a result of the policy that may affect the freedom of the press. A declaration regarding the non-pendency of the matter in any court of law is also necessary.

On receipt of a complaint made to it or otherwise, if the Council is prima facie satisfied that the matter discloses sufficient ground for inquiry, it issues a show cause notice to the respondents and then considers the matter through its Inquiry Committee on the basis of written and oral evidence tendered before it. If on inquiry, the Council has reason to believe that the respondent newspaper has violated journalistic norms, the Council keeping in view the gravity of the misconduct committed by the newspaper, warns, admonishes or censures the newspaper or disapproves of the conduct of the editor or the journalist as the case may be. It may also direct the respondent newspaper to publish the contradiction of the complainant or a gist of the Council’s decision in its forthcoming issue.

Similarly, when the Council upholds the complaint of the aggrieved newspaper/journalist the Council directs the concerned government to take appropriate steps to redress the grievance of the complainant.

FUNDAMENTAL RIGHTS (ARTICLE 19)

Every citizen of India enjoys certain rights which are guaranteed to him by the Constitution. These are called Fundamental Rights. In the Constitution, they are described under Article 19. They are also known as civil liberties because they allow citizens to live in peace and harmony. It is believed that the citizens of the country should live in a liberal democracy, and not under authoritarian or dictatorial rule where people do not enjoy basic freedoms like freedom of speech, expression etc.

Apart from listing what these freedoms are, the Constitution also gives the citizens the right to go to court if the freedoms given to them are violated. All citizens can enjoy these rights irrespective of their caste, creed, gender, religion, colour. The fundamental rights were included in the Constitution because they were considered essential for the development of the personality of every individual.

The writers of the Constitution regarded democracy means nothing if civil liberties, like freedom of speech and religion were not recognized and protected by the State (State means a nation here). According to them, a democracy is a government by opinion. Therefore, the means of formulating public opinion should be guaranteed.

However, it must be understood that none of these freedoms are absolute. They come with a rider or some restrictions. For instance, freedom of speech does not give an individual the right to defame someone.

These freedoms are five in number:

19(1): Freedom of speech and expression which also enable an individual to participate in public activities. This section does not use the phrase, “freedom of press”, but it is understood that freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.

19(2): Freedom to assemble peacefully without arms. People can hold rallies, gatherings, meetings etc, but this freedom is not total. They cannot carry arms or weapons when they do so. The State can impose reasonable restrictions in the interest of public order and the sovereignty and integrity of India. For instance, carrying arms and weapons is illegal under the Arms Act. This restriction does not apply to agencies like the police or army, who can do so in the interest of public order or for the safety of the country. It also may not apply to individuals who are granted the licence to carry some arms (not all) for their personal safety. Like political leaders or celebrities who get a revolver licence for their personal safety.

19(3): Freedom to form associations or unions. A group of individuals have the right to form associations or unions. Again, the State can impose reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty and integrity of India. For instance, individuals cannot come together and form an association or a union to fight the police or army. Agencies like the police or the army cannot form unions.

19(4):  Freedom to move freely throughout the territory of India. All citizens, irrespective of their caste, creed, gender, religion have the right to move anywhere in the country. For instance, those opposing MNS leader Raj Thackeray on the grounds of north Indians not to be allowed in Mumbai, argue that his demand violates this right. They plead that any citizen in any part of the country can move anywhere for his trade or personal welfare. However, reasonable restrictions can be imposed on this right in the interest of the general public. For example, restrictions may be imposed on movement and travelling, so as to control epidemics. Also in case of riots when an individual’s movements are restricted or prohibited and assemblies are banned.

19(5): Freedom to reside and settle in any part of the territory of India. All individuals have the liberty to live and settle in any part of the country. This right is also subject to reasonable restrictions by the State in the interest of the general public. For instance, it restricts citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or property in Jammu and Kashmir.

19(6): Freedom to practice any profession/any occupation, trade or business. All individuals can engage themselves in the profession, trade or occupation of their choice. But again, the State may impose reasonable restrictions in the interest of the general public. For instance, one cannot hold coaching classes for teaching how to commit crimes. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practising any profession or carrying on any trade.

In short, rights mean those freedoms which are essential for personal good as well as the good of the community. The freedoms guaranteed under the Constitution are fundamental and can be enforced in a court of law. However, it does not mean that they are absolute or that they are immune from Constitutional amendments. It is possible that a law may be amended in keeping with the times, trends, cultural and political situation. In that case, the earlier provisions of the law automatically stand amended.

CONTEMPT OF COURTS ACT 1971

INTRODUCTION: Newspapers place a lot of emphasis on court proceedings these days. Most cases have a bearing on the lives of people. Hence it is important for journalists to understand court or legal reporting/writing. In the absence of such knowledge, a journalist could end up committing what is known as contempt of court.

Court orders have to be obeyed and court procedures have to be respected. If this is not done, or if a journalist misquotes or misreports legal proceedings, it could attract contempt under the Contempt of Courts Act 1971.

Contempt of court means anything which:

a)     Scandalises or lowers the authorities of the courts

b)     Insults or interferes with the judicial system/proceedings

c)     Interferes or obstructs with the administration of justice in any other manner

d)     Discourages or influences witness in giving evidence before the court

e)     Violates the secrecy of in-camera proceedings

f)      Criticising court decisions

The courts allow fair and accurate report of its proceedings. But an in camera trial is held secretly and not is open to public or journalists. Comments of any kind are not permitted when a trial is in progress. The duty of a journalist is to report cases and not to comment or criticize or adjudicate. Writing about court proceedings where a judge has prohibited amounts to contempt. However, any fair comment on the merits of the case which has been fully heard and a decision given, does not amount to contempt.

The Press enjoys immunity from contempt during the investigation of the case by the police. But when a magistrate/judge starts hearing the case, the matter becomes sub judice (ie. pending before the court) and a journalist can report only the news part.

WHAT THE LAW SAYS: In India, the Act defines two kinds of contempt.

1) Civil Contempt: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt is defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking (statement made before the court) given to a court.

2) Criminal Contempt: Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or

(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or

(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

The law has been enacted to uphold the majesty and dignity of law courts. The idea is to ensure that people do not lose his respect for the judge acting in the discharge of his judicial duties. If this is not done, the confidence of the people in the courts is shaken. Hence the offender needs to be punished. The law thus seeks to protect of the seat of justice.

PUNISHMENT PRESCRIBED: Contempt of court may attract six months imprisonment or with a fine of Rs 2000 or both. However, courts can reduce the punishment or could let off a person if he apologises to the court.

In case of civil contempt, the court could award an imprisonment term upto six months in a civil prison if it feels that fine is not enough. A person convicted in a contempt case, can appeal in a high court within 30 days and 60 days if it is a supreme court.

PUBLIC ORDER

Section 295

Injuring or defiling place of worship, with intent to insult the religion of any class.— Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 295 A

Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.—Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 2 [citizens of India], 3 [by words, either spoken or written, or or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 4 [three years], or with fine, or with both.]

Section 505

Statements conducing to public mischief.—2 [(1)] Whoever makes, publishes or circulates any statement, rumour or report,— (a) with intent to cause, or which is likely to cause, any officer, soldier, 3 [sailor or airman] in the Army, 4 [Navy or Air Force] 5 [of India] to mutiny or otherwise disregard or fail in his duty as such; or (b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or (c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to 6 [three years], or with fine, or with both. 7

[(2) Statements creating or promoting enmity, hatred or ill-will between classes.—Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both. (3) Offence under sub-section (2) committed in place of worship, etc.—Whoever commits an offence specified in sub-section (2) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]

Exception — It does not amount to an offence, within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report, has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it 2 [in good faith and] without any such intent as aforesaid.]

######

Details of IPC Sections 153A, 295 & 295A:

The purpose of the Section 153 A is to punish persons who indulge in wanton vilification or attacks upon the religion, race, place of birth, residence, language etc of any particular group or class or upon the founders and prophets of a religion. The jurisdiction of this Section is widened so as to make promotion of disharmony, enmity or feelings of hatred or ill-will between different religious, racial, language or regional groups or castes or communities punishable. Offence on moral turpitude is also covered in this section. The offence is a cognizable offence and the punishment for the same may extend to three years, or with fine, or with both. However, the punishment of the offence committed in a place of worship is enhanced up to five years and fine. Ingredients of Section 153A:  The act of promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, caste, community or any other group.  Acts prejudicial to the maintenance of harmony between different groups or castes or communities, if the acts disturb public tranquillity. Acts causing fear or alarm or a feeling of insecurity among members of any religious, racial, language or regional group or caste or community by use of criminal force or violence against them.

SECTION 295: Section 295 of the I.P.C makes destruction, damage, or defilement of a place of worship or an object held sacred, with intent to insult the religion of a class of persons, punishable with imprisonment which may extend to two years, or with fine, or with both. This section has been enacted to compel people to respect the religious susceptibilities of persons of different religious persuasion or creeds. Ingredients of Section 295:  The accused must do such an act with the intention of insulting the religion of any person, or· with the knowledge that any class of person is likely to consider such destruction, damage or defilement as an insult to their religion.  The accused must destroy, damage or defile any place of worship or any object which is held as· sacred by any class of persons.

SECTION 295-A: The object of Section 295-A is to punish deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or the religious beliefs. This section only punishes an aggravated form of insult to religion when it is perpetrated with deliberate and malicious intention of outraging the religious feelings of a class. Ingredients of Section 295-A:  The accused must insult or attempt to insult the religion or religious beliefs of any class of· citizens of India.  The said insult must be with a deliberate and malicious intention of outraging the religious· feelings of the said class of citizens.  The said insult must be by words, either spoken or written, by signs or by visible representation· or otherwise.  The offence under Section 295-A is cognizable and a non-bailable and non-compoundable· offence.  The police have a power under to arrest a person charged under Section 295-A without a· warrant.

SECTION 153A: This section relates to promoting enmity between different groups on of grounds of religion, race, place of birth, residence, language, etc., and doing acts that disturb the harmony in the society.

WHAT IS THE OFFENCE: Words, either spoken or written, or signs or visible represent­ations or otherwise, promoting or attempting to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill‑will between different religious, racial, language or regional groups or castes, or communities; or….

any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity (peace), or….

organizing any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence or participating in such activity intending to use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community.

PUNISHMENT PRESCRIBED: Imprisonment which may extend to three years, or with fine, or with both. In case such offence is committed in place of worship, imprisonment which may extend to 5 years plus fine.

ILLUSTRATIONS: Cases where persons were responsible for vandalizing the statue of Ambedkar or Shivaji or gods and goddesses.

SECTION 153B: This section refers to what is called as imputation. The term imputation means attributing (something discreditable) to a person.

WHAT IS THE OFFENCE: Words either spoken or written or by signs or by visible representations or otherwise

(a) Making or publishing any imputation that any class of persons cannot, by reason or their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to Constitution of India as by law established or uphold the sovereignty and integrity of India, or

(b) Asserting, counselling, advising, propagating or publishing that any class or persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied or deprived of their rights as citizens of India or

(c) Making or publishing any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion, counsel, pleas or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons.

PUNISHMENT PRESCRIBED: Imprisonment which may extend to 3 years, or with fine, or with both. In certain circumstances, it may also carry imprisonment which may extend to five years and fine.

ILLUSTRATIONS: Statements like “All Muslims should be sent back to Pakistan and Bengali Muslims be deported to Bangladesh because they are not Indian citizens” can attract this section  

SECTION 295 A: This section refers to deliberate acts that insults one’s religious beliefs.

WHAT IS THE OFFENCE: Deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written or by signs or by visible representations or otherwise, insulting or attempting to insult the religion or the religious beliefs of that class.

PUNISHMENT PRESCRIBED: Imprisonment which may extend to 3 years, or with fine, or with both.

SEDITION

SECTION 124A:

This section refers to what is called as sedition. Sedition means inciting discontent or rebellion against the government. It also means treason or any action, especially in speech or writing, promoting such discontent or rebellion. So, essentially it is a revolt or mutiny against a nation.

WHAT IS THE OFFENCE:

Words, either spoken or written, or signs, or visible representation, or bringing or attempting to bring into hatred or contempt, or exciting or attempting to excite disaffection towards the Government established by law in India.

PUNISHMENT PRESCRIBED:

Whoever does the above shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to 3 years, to which fine may be added, or with fine. The expression “disaffection” includes disloyalty and all feelings of enmity. So this is a serious offence. That can attract a life term.

ILLUSTRATIONS:

After the Mumbai riots in 1993, actor Sanjay Dutt was charged under this section for “waging a war against the nation and for treason.”

Conflict of Interest: What Does it Mean?

A reporter who covers town meetings wonders whether it is appropriate to pursue a relationship with a councilmember’s daughter.

A community activist learns that the editor of the local newspaper plans to run for town supervisor, and asks whether this is OK.

An editor discovers that one of her reporters is covering an issue he previously wrote editorials about, and wants to check whether her instinct to give the story to someone else is correct.

And a publisher posts a notice that “no anti-fracking info [is] welcome,” overturning the paper’s previous policy of printing flyers on both sides of the issue. This prompts at least one reporter to resign, and she wants to know whether we share her concern that the new policy poses a threat to journalistic integrity.

All of these AdviceLine cases raise the general question, “What counts as a conflict of interest?” Interestingly, the SPJ code is relatively silent on this.

It does say that journalists should “avoid conflicts of interest, real or perceived,”and “disclose unavoidable conflicts.” But the code does not provide further details about what would make a conflict unavoidable, nor does it offer a precise definition of what it means to say a conflict of interest exists.

This is not a criticism of the code itself; it is a reason why ethical professionals sensibly seek advice from time to time.

Conflict of interest is an example of an “open concept.” While it’s possible to give some textbook examples, there is no single definition that adequately covers all cases.

Why should journalists avoid perceived conflicts of interest even when no real conflict exists? The answer comes from reflection about the profession’s societal role. The average citizen isn’t in a position to know which reporters and editors can fight which forms of temptation.

And even the most seasoned journalist occasionally might be mistaken about his or her own ability to resist. To protect the profession’s integrity, it’s better for everyone involved if journalists avoid anything that looks remotely like conflict of interest. Only then can journalists and readers alike be confident that the profession is fulfilling its broader obligation to seek and report the truth.

The Ramnath Goenka awards for excellence in journalism, instituted by The Indian Express, will be given out by the vice president of India, Hamid Ansari, on Monday, January 16. But the sponsorship of the awards has run into trouble, with a bunch activists and intellectuals raising questions of “conflict of interest”.

On January 10 and 11, 2012, half-page advertisements in the Indian Express (IE) newspaper (at least in Delhi edition) announced that the IE excellence in journalism awards would be given out on January 16, 2012 .

The advertisement also said that the main presenting sponsor is the Jaypee Group and among the four associate sponsors was Mahyco Monsanto.

One may recall that Indian Express has been on a campaign mode advocating big dams in general. It has been specifically campaigning against the movements like the Narmada Bachao Andolan. In March and April 2006, the paper specifically ran a campaign against NBA and also against the then Union minister Prof Saifuddin Soz.

In October 2010 the paper ran a campaign for large hydro projects in the north east India when the then environment minister Jairam Ramesh held an open public hearing on these projects in Guwahati and than wrote to the Prime Minister, raising concerns about so many hydro projects being taken up in NE India and the impacts thereof.

Now it is well known that the Jaypee group is India’s largest dam building contractor, largest private sector developer and plans to develop many more including in the North East India, which was the subject of Indian Express campaign in October 2010. Jaypee group is also the contractor for the largest of Narmada Dam, namely Sardar Sarovar Project.

The group is planning to develop the 2700 MW lower Siang and 500 MW Hirong hydropower projects in Arunachal Pradesh, for example. It may also not be irrelevant to mention here that the Jaypee group has pathetic records in terms of social, environmental and human rights issues in the projects it is involved in.

More recently, in January 2012, India’s market regulator SEBI fined Jaypee group Rs 6 million for illegal practice of insider trading . All these facts are very much relevant for any business group to sponsor awards for excellence in journalism, particularly when the awards are also for “ethics in reporting”.

The Indian Express campaign in October 2010 willy-nilly helped the Jaypee groups’ interests. And now Jaypee is sponsoring the IE Journalism award. Shall we call this conflict of interest or quid pro quo?

Should a media house accept such sponsorship from a group that has directly benefited from the campaign that was run by the media house? And when the business group has such abysmal reputation?

Earlier in January-February 2010, when Jairam Ramesh held a series of public hearings to get a cross section of views on Bt Brinjal, Indian Express had launched a campaign  against Jairam Ramesh and for GM crops. It is clear that the campaign hugely benefited GM crop companies and the biggest among them in the world (Monsanto) has an Indian arm Mahyco Monsanto, which is the biggest GM seed company of India.

Mahyco Monsanto now is one of the sponsors of the Indian Express excellence in journalism awards.

So the same set of questions that arise about relation between Jaypee group and IE also arise for Mahyco Monsanto: Is this conflict of interest or quid pro quo? Is this not intellectual corruption? Should not the lobbyist media groups like Indian Express keep away from getting sponsorships from the organisations that their lobbying helps?

This is particularly true if media group wants to retain any credibility to the effect that it is still speaking in public interest, which we assume they should be.

We would like to clarify that we are not raising any doubts about the genuineness, independence and excellence of the jury or those journalists who may get this award.

The mainstream media might just be owned and operated by the Obama Administration—lock, stock, and barrel. They are married at the hip, quite literally, and often have relatives within the Administration.

The Washington Post names names in a recent piece entitled, “Media, administration deal with conflicts.” Conflicts of interest, that is.

But the Post takes an unusual approach to the conflicts. It says the media are unconcerned and can police their own behavior. Does this sound familiar? Eric Holder, anyone?

“So what to make of all the family ties between the news media and the Obama administration?” writes Paul Farhi for The Washington Post. “According to the news media, nothing much at all,” he writes (emphasis added). “News organizations say they’ve worked out the conflicts—real or potential—involving their journalists. But that hasn’t stopped a few eyebrows from being raised.”

Consider the words of Richard Grenell, a political consultant who in an appearance on Fox News noted that top networks ABC, CBS and CNN have intimate family ties to the Administration. “CBS News President David Rhodes and ABC News President Ben Sherwood, both of them have siblings that not only work at the White House, that not only work for President Obama, but they work at the NSC on foreign policy issues directly related to Benghazi,” said Grenell.

CNN’s deputy Washington bureau chief, Virginia Mosely, is married to Tom Nides, who was appointed by Obama to work under Hillary as Deputy Secretary of State for Management and Resources. This means that the Benghazi scandal causes some familial angst. What better (or worse, depending on your perspective) reason to go soft on reporting than because your own family is involved?

“Conservatives have suggested that these relationships may play a role in how the media cover Obama, specifically in their supposedly timid approach to reporting on the White House’s handling of theterrorist attacks last year on American facilities in Benghazi, Libya,” writes Farhi.

Clearly, ABC, CBS, and CNN cannot be trusted to tell the whole story on Benghazi. But the bias doesn’t end there.

It is commonly known that David Plouffe, Obama’s former campaign manager, has joined Bloomberg News as a commentator, and former senior advisor to the president David Axelrod was hired by MSNBC. (The President went so far as to joke at the latest White House Correspondents’ Association dinner that “… David Axelrod now works for MSNBC, which is a nice change of pace since MSNBC used to work for David Axelrod.”)

What is less well known is that 14 or more journalists have joined the Obama Administration and takenkey posts there. “Those inside the administration hit 14 this month when the Post’s Stephen Barr joined the Labor Department,” reported the Washington Examiner last February. “That’s a record, say some revolving door watchers, and could even be much higher: The [Washington] Post reports that “dozens” of former journalists have joined the administration, although Washington Secrets couldn’t verify that tally.” After all, there’s “… a whopping 19 journalists and media executives, including five from The Washington Post and three each from ABC and CNN, who’ve gone into the administration or center-left groups supporting the president.”

So the media have relatives in the Administration, accept political hacks from the Administration as commentators, and have former colleagues who work there. The interrelations are so complex that reporters have to recuse themselves behind the scenes and even reassign employees because the conflicts are too great.

What possible reason, then, would the media have to cover for the Administration’s missteps? It looks like there are lots of reasons.

While journalists may recuse themselves from stories that they may influence, that doesn’t mean their existence as an employee—or, especially, as a leader—doesn’t put soft pressure on a news organization to cover the story from a different angle. Sometimes all it takes is a behind-the-scenes comment to influence a story. And generally the biases are known in advance. Accepted truths are just that: the diffuse influence of friends, colleagues, and family members on a person’s perspective.

But Farhi certainly leaves readers with the idea that we are safe from media bias. After all, ABC’s Shipman “stopped covering politics in late 2008 after her husband, Carney, left Time magazine to become press secretary for Vice President-elect Joe Biden.” Carney, of course, later became White House spokesman for President Obama. And late last month, after he had been caught either lying, or passing on wrong information about who at the White House knew about the IRS targeting of conservative groups and when they knew it, he was rewarded with a 900-word, two-page Style sectionpuff-piece in The Washington Post about his musical proclivities and favorite band. If he were a conservative, this would have been said to have humanized him.

“She’s [Shipman] now the senior national correspondent for ‘Good Morning, America’” and covers soft topics such as “diet and fitness,” says Farhi.

Farhi quotes Jeffrey Schneider, ABC News’ chief spokesman, as saying, “There is zero evidence, zero, that [Ben Sherwood’s relationship] has had any impact on our coverage.” Evidence is an interesting word in this context. How about common sense and human nature? Though not quantifiable evidence, they certainly lead us to draw conclusions. Conclusions that our liberal media clearly don’t want us to draw.

What is paid news?

Paid news or paid content are those articles in newspapers, magazines and the electronic media, which indicate favourable conditions for the institution that has paid for it. The news is much like an advertisement but without the ad tag. This kind of news has been considered a serious malpractice since it deceives the citizens, not letting them know that the news is, in fact, an advertisement. Secondly, the payment modes usually violate tax laws and election spending laws. More seriously, it has raised electoral concerns because the media has a direct influence on voters.

The Election Commission of India found 42 cases of “paid news” that contributed to Narottam Mishra’s victory in the 2008 Assembly elections in Madhya Pradesh. But there is no law to proscribe or regulate what the Commission called “the menace of paid news” in the country. In the absence of specific laws, the EC decided that Mishra had misrepresented his campaign expenses and was disqualified on those grounds.

So, what is ‘paid news’? The Election Commission has accepted a definition that the Press Council of India came up with in 2010. According to the Press Council’s report, paid news is “any news or analysis appearing in any media (print & electronic) for a price in cash or kind as consideration”.

In February 2011, the EC wrote to the Law Ministry proposing to amend the Representation of the People Act, 195t1, (RPA) to include “paid news” in electoral offences with a minimum two-year jail term for publishing or abetting the publishing of paid news.

The practice of paid news is not a recent phenomenon. It was blatantly evident in the Assembly and the Lok Sabha elections. It has been there all along in the coverage of corporates also. Earlier, it was limited to a few journalists, and covertly. It has now become an overt and institutionalised affair, as if there was nothing unusual or deviant about this. It has now reached the proportion of being described as “fourth estate on sale” (EPW). This practice is no longer limited to smaller or regional language news media. It is happening all across the news media. Like ‘overzealous ad managers,’ there are overzealous journalists. This practice, if not addressed now, will become formally overt as a normal course of the news media’s function.

In a democracy, free and fair elections and a free press are equally important. Each should sustain the vibrancy of the other. The situation calls for protective measures and corrective initiatives by news media themselves in their own interest and by other stakeholders in civil society.  Three-pronged efforts are needed. First, from within news media, individually, and as a Fourth Estate institution. Secondly, from professional bodies like academics, independent research and civil society groups. Lastly, from regulatory agencies like the PCI, the ECI, the Information Commission, and the Telecom Regulatory Authority of India (TRAI).

Dependence on ratings/ranking: There are by corporate instruments, not editorial ones.  More reliable and relevant criteria can be evolved in such a way that the credibility of the news media is retained.

Redressal arrangements: Complaints about any aspect of media operations have positive implications — for content. There should be some provision for readers and viewers to “write back” or “talk back” and for an explanation in turn by the person responsible in the news media. The Readers Editor of The Hindu has set a good precedent in taking note of complaints and explaining wherever necessary, as he did in the case of the paid news phenomenon.

Media watch: Academic bodies, independent research agencies, and civil society groups should be encouraged to monitor media contents and articulate their views from time to time. Several such independent media watch groups are needed in the country. Basic data based on trends of space and time for advertisements and analysis of ad content is essential for preventive initiatives. The Centre for Media Studies (CMS) has been doing this.

The media should be brought under the Right to Information Act (RTI) so that some accountability comes into media operations and managements. Government media campaigns, other than on specific occasions, should be discouraged six months before elections.

News that “Narendra Modi lands in Uttarakhand, flies out with 15,000 Gujaratis” that appeared in the so called prestigious News paper – The Times of India

Following this a petition was issued by a certain Mr. Samar Anarya from Hong Kong to Justice Markandey Katju

As per Times of India report  (Narendra Modi lands in Uttarakhand, flies out with 15,000 Gujaratis)  Narendra Modi flies in Uttarakhand, goes in a huddle with his crack  team and then sends 15000 Gujaratis back to safety in one night. How, I ask, when even the Army has been able to rescue just 20000 in a week.  How did Team Modi selectively locate these Gujaratis apart from all those stranded from 27 other Indian States and 7 Union Territories?

Following this a startling revelation was made that the journalist who first wrote the story with the ‘15,000 Gujarati pilgrims’ claim says his source for the figure was Anil Baluni, the BJP’s spokesperson in Haldwani in Uttarakhand.

For three days running, there was no reaction from the Bhartiya Janata Party. But with doubts growing over how such a feat was achieved, if it was achievable at all, the party finally broke its silence. BJP president Rajnath Singh said he had spoken to Mr. Modi who denied making any such claim.

Anand Soondas — chief of the National News Features of Times of India (TOI), and Editor, Sunday Times — told The Hindu that his source for the figure was Anil Baluni, the BJP’s spokesperson in Haldwani in Uttarakhand.

Mr. Soondas said the conversation between him and Mr. Baluni had taken place in “the presence of Uttarakhand BJP president, Tirath Singh Rawat, a bunch of youth leaders from Gujarat and a couple of bureaucrats from Gujarat.  Mr. Baluni is quoted in the story as saying, “It’s amazing what he (Modi) has done here.”

The Hindu called Mr. Baluni to confirm if he had indeed given the story to Mr. Soondas but he first asked to be called later and then switched off the phone. He was unreachable till late in the evening.

It is known that the two Media moguls are at logger heads with each other, so it isn’t surprising to watch them go out of their way to discredit the other. But that being said, clearly there is much more to it than meets the eye. Whatever be the truth, this is still a glittering example of paid news in Indian media.

In March 2017, an Orthopedic surgeon in Dhule was severely beaten up to the extent of a cranial fracture and loss of eyesight. That was not the only event, around 5–6 events of assault on doctors were reported within a week. A mass outrage was seen amongst the medical fraternity. The doctors all over India went on a strike in support. All they demanded was security.

The death count was near an average (in fact lesser) than the average deaths that occur as routine deaths. The media houses didn’t feel a need to tell a reference number to what the public can relate to.

Whatever surgeries were cancelled were all elective surgeries i.e. the surgeries are not an emergency for ex. cataract, angioplasty, hysterectomy, tubectomy etc. Not one emergency surgery (life saving surgeries) was postponed. I have seen the senior doctors covering the duties of the residents while standing in their support.

There were rumours every day that the strike is called off. It was a silly attempt on the part of government and media to weaken the unity amongst the doctors.

Unethical practices in the medical field were highlighted to gain sympathy from the masses. Sure, agreed that it exists. Does that justify brutal beating up of a doctor? Ever heard of an engineer got beaten up because of collapse of a bridge? Why not highlight the need for better government medical services? Private service comes into existence only when the government fails to provide a better alternative.

I am not in any way insensitive to the emotions of patients and their relatives, but people crying in hospital premises is a daily scenario. Come to KEM hospital and wait for half an hour at the gate and you will witness one. What is wrong is the use of their emotions to provoke the mass viewership just for TRP.

There was no attempt made to show the poor conditions of health system in India. Media was busy trying to cover up the failures of government. In India the total expenditure on healthcare as percentage of GDP is just 4%, while in the US it is 17%.

Residents and interns were scared to even wear aprons in the premises so as to avoid abuse.

Media did not feel the need to show the hardships that a doctor has to go through his life being an intern or a resident.

This guy on Zee 24 taas even gave blatant statements in like “God cures the patients and doctors take the money”.

WORKING JOURNALISTS ACT 1955

INTRODUCTION: This Act was brought into effect as a welfare measure for the working journalists (not freelancers or stringers). It regulates the service conditions of the people/employees of the newspaper industry.

Its provisions relate mainly to:

1)     Cases of retrenchment (retrenchment means removal of employees from service).

2)     Payment of gratuity (gratuity is a sum paid to an employee after his retirement. It is equivalent to a salary of twelve months, calculated according to the last salary drawn)

3)     Hours of work (a working journalists under the act has to put in a minimum of six and half hours of shift)

4)     Leave (privileged, casual, medical, maternity, special etc)

5)     Fixation of revision of rates of wages

6)     Enforcement of wage board recommendations (pay scales of working journalists are decided by a wage board which usually is headed by a retired judge of the High Court and has members from the employers and employees)

7)     Employees provident fund (a part of the salary is cut from the employees wages every month. An equal amount is added by the employer. After retirement, this accumulated amount is given to the employee as a provident fund. This amount is meant to take care of the employees’ future after retirement)

8)     Recovery of money due from employees. (Money taken by the employee as loan, credit or advance).

The Act defines who is a working journalist, a newspaper etc.

Newspaper means any printed periodical work containing public news or comments on public news and includes such other class of printed periodical work as many, from time to time, be notified in this behalf by central Government in the official Gazette.

Newspaper Employees means any working Journalists and includes any other person employed to do any work in or in relation to any newspaper establishment.

Working Journalists means a person whose principal avocation is that of a journalist and (who is employed as such, either whole-time or part-time in, or in relation to, one or more newspaper establishment), and includes an editor , a leader writer , news-editor, sub-editor, feature-writer, copy-tester, reporter, correspondent, cartoonist, news-photographer and proof-reader, but does not include any such person who

a) is employed mainly in a managerial or administrative capacity or

b) being employed in a supervisory capacity, performs, either by the nature of duties attached to his office or by reasons of the power vested in him and function mainly of a managerial nature.

EFFECTIVENESS, WAGE BOARDS AND CONTRACT SYSTEM:  For the purpose of fixing or revising rates of wages in respect of working journalists the Central Government as and when necessary constitutes a wage board. It consists of –

a) Three persons representing employers in relation to newspaper establishments

b) Three persons representing working journalists

c) Four independent persons, one of whom shall be a person who is or has been a judge of High court or Supreme court and appointed by the Government as the Chairman.

The Working Journalists Act has become useless in today’s scenario. This is because of the contract system brought in by the influential owners’ lobby. Under the Act, the journalist enjoys job security. But the employers/owners want to hire and fire journalists. This becomes easy under the contract system where all terms and conditions of the job are decided on various factors like the importance of the journalist, his indispensability etc. The duration of employment, designation and revision of wages are all decided on a case-to-case basis. A journalist usually draws higher wages under the contract system but his job security is always under threat, as under this system, the contract can be terminated on either side with a three or one-month notice (as the case may be).

Most journalist organizations are opposed to the contract system because of this reason. Besides, under the contract system, a journalist puts in long hours endangering his health. Thus under the contract system, a journalists working conditions – especially those relating to his job welfare – are not and cannot be regulated.

The effectiveness of the Working Journalists Act is questionable. In metros, and most major newspapers have introduced the contract system. The wage board system is being followed by only smaller and medium newspapers. In fact, some small newspapers don’t even follow the wage board system.        

CONDITIONS OF WORKING JOURNALISTS: The working conditions of the journalists when I began my career in 1980 left a lot to be desired. Besides being paid a pittance, the working journalists were not provided with any amenities. A working journalist’s had to work almost round the clock, except perhaps between the unearthly hours of 2 am to 10 am. (they still do). Those who worked late night shifts were not given any pick-up and drop facilities. (Many smaller newspapers still don’t do). Only a few newspapers would be concerned enough to offer on-the-house tea thrice during the working hours.

It was the time when the lino set up was being changed to typesetting. Thus, ACs also came later. The working journalists would often sweat it out under hot and humid conditions, with just a few fans whirring over their heads. Even toilet facilities were nothing to write home about. It would be especially miserable for the women journalists.

Those who did not have their own transport and unable to go home because of absence of public transport after midnight had to stay back without being provided proper beddings.

There would be no proper catering facilities either. The conditions in smaller centres would be worse still. However, big-time newspapers were much better in that respect.

Such poor conditions were no motivation for any journalists, who then, were paid according to the scales recommended by the Wage Boards constituted by the central government. The Wage Boards comprised of members of the union ministry of labour, representatives of the owners/management, and the representatives of the employees. The Boards would take an inordinate amount of time on the revision of pay scales to journalists. Often, it was left for the journalists unions to stage agitations for better wages. Needless to say, wage boards, (headed usually by a retired high court judge) would often be manipulated by the influential owners’ lobby.

CONTRACT SYSTEM: In the mid-nineties, the newspaper managements suddenly changed tack and opted for contract system. Under the system, the working journalists were taken out of the “regular” appointment and put under a contract. In this system, the journalist got much higher wages, but under the terms of the contract, his services could be dismissed with a one-month or three months notice. The contract system, which is pretty much in force now, usually is for a period of one, two or three years (maybe five also). After the contract expires, the management usually renews the contract. If it doesn’t, the journalist’s appointment automatically stands terminated. And the journalist has to search for a new job. So, in short, the contract system means higher wages but higher risk while in the earlier wage board system, it was low wages and a permanent job.

The journalist unions are not in favour of contract system. They argue that the journalist cannot function freely with a sword (of losing the job) constantly hanging over his head.

A situation has, thus, been created where the working journalists have just about no job security and even permanent newspaper employees can be dismissed overnight. The employers, thus, have usurped the right to arbitrarily hire and fire the working journalists.

As a result, managers have usurped the editorial control of many so-called national newspapers and the editors have to accept their diktat or leave. No wonder the editorial content, including the selection of news, is determined by the commercial interests of the industrial houses running the newspapers. Just as the electronic media are concerned more with their TRP ratings even if these improve by catering to the baser passions of the viewers, the print media, too, are losing their professional values to improve their circulation figures, and profits. The freedom of the Press, thus, is being held to ransom by the proprietorial interests of newspaper owners and is fast ceasing to champion the voice of the people.

RIGHT TO INFORMATION ACT 2005 (RTI)

The basic duty of a journalist is to provide his readers with the correct and detailed information. In order to discharge his duty effectively, he has to gather information that enlightens and informs his readers. Apart from journalists, individuals involved in social, political and cultural activism also need information from time to time.

However, more often than not, it is difficult to get or dig out information from those in power or the government authorities. This is because there is always reluctance on the part of the authorities to part with information. It is especially the case when the information is damaging to them or puts them in bad light. In a democracy, the affairs of the government need to be transparent, and suppressing information is like suppressing the truth.

Journalists, activists and interested individuals, who would find it difficult to get relevant information from the government authorities, can now invoke (use) the Right to Information Act to get the information they need. Until recently, the government authorities would do everything within their means or come out with all kinds of excuses to give information. But now under the RTI, it is compulsory for them to do so. However, there are certain modalities and procedures that have to be followed under this law.

The RTI was enacted by the Parliament in June 2005 and came into effect on October 13, 2005. It applies to all states except Jammu and Kashmir (which has a separate law). Till then, disclosure of information was restricted under the Official Secrets Act (OSA) of 1923. The OSA still exists, but the RTI relaxes some of its provisions. According to the OSA, no information can be disclosed by the government authorities in matters relating to security of the State, sovereignty of the country and friendly relations with foreign states.

The RTI Act is applicable to all constitutional authorities, including the executive, legislature and judiciary; any institution or body established or constituted by an act of Parliament or a state legislature. It is also defined in the Act that bodies or authorities established or constituted by order or notification of appropriate government including bodies “owned, controlled or substantially financed” by government, or non-Government organizations “substantially financed, directly or indirectly by funds” provided by the government are also covered in it. The law is not applicable to private bodies/institutions unless they are financed by the central or state government.

Under the Act, every public authority has to computerise records so that it reaches all cross-sections of people. It specifies that citizens have a right to

  1. Request any information (only that info defined under the Act)
  2. Take copies of documents
  3. Inspect documents, works and records
  4. Take certified samples of materials of work
  5. Obtain information in form of printouts, diskettes, floppies, tapes, video cassettes ‘or in any other electronic mode’ or through printouts.

WHAT HAS TO BE DONE TO GET INFORMATION

The Act specifies that all authorities covered must appoint their Public Information Officer (PIO). Individuals seeking information have to submit a request to the PIO in writing. The PIO is under obligation to provide information to (only Indian) citizens. If the request concerns another public authority (in whole or part) it is the PIO’s responsibility to transfer/forward the concerned portions of the request to a PIO of the other within five days. While making the request, citizens need not disclose any information except their name and contact particulars. The Act specifies time limits for replying to the request.

  1. If the request has been made to the PIO, the reply is to be given within 30 days of receipt.
  2. If the PIO transfers the request to another public authority, the time allowed to reply is 30 days but computed from the day after it is received by the PIO of the transferee authority.
  3. Information concerning corruption and Human Rights violations by Security agencies (those listed in the Act) is to be provided within 45 days but with the prior approval of the Central Information Commission. However, if life or liberty of any person is involved, the PIO is expected to reply within 48 hours.

It must be noted that the information has to be paid for and cannot be obtained for free.

If information is not provided within the period specified above, it is treated as refusal. If the refusal is with or without reasons, citizens can file an appeal or complaint. Information not provided in prescribed time has to be provided free of charge. There is a fee of Rs 10 for filing the request, Rs 2 per page of information and Rs 5 for each hour of inspection after the first hour.

WHAT CONSTITUTES INFORMATION

Under the Act, information has been defined as any material in any form including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body

WHAT CANNOT BE DISCLOSED

●       Information which would adversely affect the sovereignty (independence) and integrity of India, the security, strategic, scientific or economic” interests of the country, relations with foreign nation or lead to incitement of an offence;

●       Information which has been forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

●       Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

●       Information including commercial confidence, trade secrets or intellectual property, unless the authority is satisfied that larger public interest calls for the disclosure of such information;

●       Information received in confidence from foreign government;

●       Information which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

●       Information which would obstruct or stop the process of investigation or apprehension or prosecution of offenders;

●       Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;

●       Personal information which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual.

EXCLUSIONS

Central Intelligence and Security agencies Intelligence Bureau, (IB), Research and Analysis Wing (RAW), Central Bureau of Investigation (CBI), Directorate of Revenue Intelligence, Central Economic Intelligence Bureau, Directorate of Enforcement, Narcotics Control Bureau, Aviation Research Centre, Special Frontier Force, BSF, CRPF, ITBP, CISF, NSG,  Assam, Rifles, Special Service Bureau, Special Branch (CID. The exclusion, however, is not absolute and these organizations have an obligation to provide information pertaining to allegations of corruption and human rights violations. However, information relating to allegations of human rights violation could be given but only with the approval of the Central or State Information Commission.

INDIAN EVIDENCE ACT 1872

The Indian Evidence Act is an old law which was enacted during the British rule. The Act defines what is evidence, what are the types of evidence and which are the ones that are accepted in the court of law and which ones are not.

It is applicable everywhere in India but not in J&K.

WHAT DOES EVIDENCE MEAN: The word evidence actually means proof. But as far as this Act is concerned, Evidence” means and includes:

1)     All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

2)     All documents produced for the inspection of the Court; such documents are called documentary evidence.”

Proved: A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent (wise) man ought, under the circumstances of the particular case, to act upon the belief that it exists.

Disproved: A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

Not proved: A fact is said not to be proved when it is neither proved nor disproved.

TYPES OF EVIDENCE

There are two kinds of evidence. Direct and Circumstantial.

  1. DIRECT EVIDENCE: It is based on witness’ personal knowledge or observation of a fact. A person’s guilt may be proved by direct evidence if standing alone, that evidence satisfies the court beyond reasonable doubt of the person’s guilt charged with the crime.

Example: Suppose in a trial, one of the parties is trying to prove that it was raining on a certain morning. A witness testifies that on that morning he walked on the street and saw rain falling, felt it striking her face and heard it splash on the road. That would amount to a direct evidence by the witness about rain falling that morning.

  1. CIRCUMSTANTIAL EVIDENCE: It is an evidence of a fact from which a person may reasonably infer the existence or non-existence of another fact. A person’s guilt of a charged crime may be proved by circumstantial evidence, if that evidence, while not directly establishing guilt, gives rise to an inference of guilt beyond a reasonable doubt.
    Example: A witness testifies before the court that till he reached the office it was clear, but later saw other people walking in with their umbrellas wet and raincoats dripping with water. It would logically, naturally and reasonably be concluded that it was circumstantial evidence it was raining in that area.

The law does not differentiate between direct and circumstantial evidence in terms of weight and importance. Both can establish a person’s guilt beyond doubt depending on the facts of the case.

Again, evidence can also be oral and documentary.

●      Documentary evidence is any evidence introduced at a trial in the form of documents. Although this term is most widely understood to mean writings on paper (such as an invoice, a contract or a will), the term actually includes any media by which information can be preserved. Photographs, tape recordings, films, and printed emails are all forms of documentary evidence. But these documents need to be authenticated.

●      Oral evidence must be direct

Oral evidence must, in all cases whatever, be direct; that is to say — if it refers to a fact which could be seen, it must be the evidence of a witness who says who says he saw it;

if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

WHAT IS APPLICABLE AS EVIDENCE AND WHAT IS NOT: The court always looks at the following before admitting anything in a case as evidence. It checks whether the evidence is relevant and reliable.

a) Whether such evidence is primary or secondary?

b) Whether such evidence is direct or hearsay?

c) Whether such evidence is corroborative or substantive?

CONFESSIONS MADE BY ACCUSED: A confession made by an accused in a criminal proceeding is considered irrelevant if it is found that it was caused by inducement, threat or promise.

The opinion of experts in matters relating to science, art on handwriting etc are considered as valid evidence admissible in the court.

Primary evidence means the document itself which is produced for the inspection of the court. Secondary evidence means certified copies, copies made from the original. Under the Act, the burden of producing the proof lies on the person who makes an allegation in the court.

The Information Technology Act, 2000

The Information Technology Act, 2000 (also known as ITA-2000, or the IT Act) is an Act of the Indian Parliament (No 21 of 2000) notified on 17 October 2000. It is the primary law in India dealing with cybercrime and electronic commerce. It is based on the United Nations Model Law on Electronic Commerce 1996 (UNCITRAL Model) recommended by the General Assembly of United Nations by a resolution dated 30 January 1997.

The bill was passed in the budget session of 2000 and signed by President K. R. Narayanan on 9 May 2000. The bill was finalized by group of officials headed by the then Minister of Information Technology Pramod Mahajan.

The IT Act

The original Act contained 94 sections, divided in 13 chapters and 4 schedules. The laws apply to the whole of India. Persons of other nationalities can also be indicted under the law if the crime involves a computer or network located in India.

The Act provides legal framework for electronic governance by giving recognition to electronic records and digital signatures. The formations of Controller of Certifying Authorities was directed by the Act, to regulate issuing of digital signatures. It also defined cyber-crimes and prescribed penalties for them. It also established a Cyber Appellate Tribunal to resolve disputes arising from this new law. The Act also amended various sections of Indian Penal Code, 1860, Indian Evidence Act, 1872, Banker’s Book Evidence Act, 1891, and Reserve Bank of India Act, 1934 to make them compliant with new technologies.

Amendments

A major amendment was made in 2008. It introduced the Section 66A which penalized sending of “offensive messages”. It also introduced the Section 69, which gave authorities the power of “interception or monitoring or decryption of any information through any computer resource”. It also introduced penalties for child porn, cyber terrorism and voyeurism. It was passed on 22 December 2008 without any debate in Lok Sabha. The next day it was passed by the Rajya Sabha. It was signed by the then President (Pratibha Patil) on 5 February 2009.

Offences

66 – Hacking with computer system

●      If a person with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hack.

●      Imprisonment up to three years, or/and with fine up to ₹500,000

66B – Receiving stolen computer or communication device

●      A person receives or retains a computer resource or communication device which is known to be stolen or the person has reason to believe is stolen.

●      Imprisonment up to three years, or/and with fine up to ₹100,000

66C – Using password of another person

●      A person fraudulently uses the password, digital signature or other unique identification of another person.

●      Imprisonment up to three years, or/and with fine up to ₹100,000

66D – Cheating using computer resource

●      If a person cheats someone using a computer resource or communication.

●      Imprisonment up to three years, or/and with fine up to ₹100,000

66E – Publishing private images of others

●      If a person captures, transmits or publishes images of a person’s private parts without his/her consent or knowledge.

●      Imprisonment up to three years, or/and with fine up to ₹200,000

66F – Acts of cyberterrorism

●      If a person denies access to authorized personnel to a computer resource, accesses a protected system or introduces contaminant into a system, with the intention of threatening the unity, integrity, sovereignty or security of India, then he commits cyberterrorism.

●      Imprisonment up to life.

67 – Publishing information which is obscene in electronic form.

●      If a person publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

●      Imprisonment up to five years, or/and with fine up to ₹1,000,000

67A – Publishing images containing sexual acts

●      If a person publishes or transmits images containing a sexual explicit act or conduct.

●      Imprisonment up to seven years, or/and with fine up to ₹1,000,000

67B – Publishing child porn or predating children online

●      If a person captures, publishes or transmits images of a child in a sexually explicit act or conduct. If a person induces a child into a sexual act. A child is defined as anyone under 18.

●      Imprisonment up to five years, or/and with fine up to ₹1,000,000 on first conviction.

●      Imprisonment up to seven years, or/and with fine up to ₹1,000,000 on second conviction.

67C – Failure to maintain records

●      Persons deemed as intermediary (such as an ISP) must maintain required records for stipulated time. Failure is an offence.

●      Imprisonment up to three years, or/and with fine.

Notable Cases

Section 66

●      In February 2001, in one of the first cases, the Delhi police arrested two men running a web-hosting company. The company had shut down a website over non-payment of dues. The owner of the site had claimed that he had already paid and complained to the police. The Delhi police had charged the men for hacking under Section 66 of the IT Act and breach of trust under Section 408 of the Indian Penal Code. The two men had to spend 6 days in Tihar jail waiting for bail. Bhavin Turakhia, chief executive officer of directi.com, a web hosting firm said that this interpretation of the law would be problematic for web-hosting companies.

Section 66A

●      In September 2012, a freelance cartoonist Aseem Trivedi was arrested under Section 66A of the IT Act, Section 2 of Prevention of Insults to National Honour Act, 1971 and for sedition under the Section 124 of the Indian Penal Code. His cartoons depicting widespread corruption in India were considered offensive.

●      On 12 April 2012, a Chemistry professor from Jadavpur University, Ambikesh Mahapatra, was arrested for sharing a cartoon of West Bengal Chief Minister Mamta Banerjee and then Railway Minister Mukul Roy. The email was sent from the email address of a housing society. Subrata Sengupta, the secretary of the housing society, was also arrested. They were charged under Section 66A and B of the IT Act, for defamation under Sections 500, for obscene gesture to a woman under Section 509, and abetting a crime under Section 114 of the Indian Penal Code.

●      On 30 October 2012, a Puducherry businessman Ravi Srinivasan was arrested under Section 66A. He had sent tweet accusing Karti Chidambaram, son of then Finance Minister P. Chidambaram, of corruption. Karti Chidambaram had complained to the police.

●      On 19 November 2012, a 21-year-old girl was arrested from Palghar for posting a message on Facebook criticizing the shutdown in Mumbai for the funeral of Bal Thackeray. Another 20-year-old girl was arrested for “liking” the post. They were initially charged under Section 295A of the Indian Penal Code (hurting religious sentiments) and Section 66A of the IT Act. Later, Section 295A was replaced by Section 505(2) (promoting enmity between classes). A group of Shiv Sena workers vandalized a hospital run by the uncle of one of girls. On 31 January 2013, a local court dropped all charges against the girls.

●      On 18 March 2015, a teenaged boy was arrested from Bareilly, Uttar Pradesh, for making a post on Facebook insulting politician Azam Khan. The post allegedly contained hate speech against a community and was falsely attributed to Azam Khan by the boy. He was charged under Section 66A of the IT Act, and Sections 153A (promoting enmity between different religions), 504 (intentional insult with intent to provoke breach of peace) and 505 (public mischief) of Indian Penal Code. After the Section 66A was repealed on 24 March, the state government said that they would continue the prosecution under the remaining charges.

######

Other Offences (Not in Syllabus)

65 – Tampering with computer source documents

●      If a person knowingly or intentionally conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy or alter any computer source code used for a computer, computer program, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force.

●      Imprisonment up to three years, or/and with fine up to ₹200,000.

68 – Failure/refusal to comply with orders

●      The Controller may, by order, direct a Certifying Authority or any employee of such Authority to take such measures or cease carrying on such activities as specified in the order if those are necessary to ensure compliance with the provisions of this Act, rules or any regulations made thereunder. Any person who fails to comply with any such order shall be guilty of an offence.

●      Imprisonment up to three years, or/and with fine up to ₹200,000

69 – Failure/refusal to decrypt data

●      If the Controller is satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence, for reasons to be recorded in writing, by order, direct any agency of the Government to intercept any information transmitted through any computer resource. The subscriber or any person in charge of the computer resource shall when called upon by any agency which has been directed, must extend all facilities and technical assistance to decrypt the information. The subscriber or any person who fails to assist the agency referred is deemed to have committed a crime.

●      Imprisonment up to seven years and possible fine.

70 – Securing access or attempting to secure access to a protected system

●      The appropriate Government may, by notification in the Official Gazette, declare that any computer, computer system or computer network to be a protected system.

●      The appropriate Government may, by order in writing, authorize the persons who are authorized to access protected systems. If a person who secures access or attempts to secure access to a protected system, then he is committing an offence.

●      Imprisonment up to ten years, or/and with fine.

71 – Misrepresentation

●      If anyone makes any misrepresentation to or suppresses any material fact from, the Controller or the Certifying Authority for obtaining any license or Digital Signature Certificate.

●      Imprisonment up to three years, or/and with fine up to ₹100,000

Confidentiality of Sources

The protection of sources, sometimes also referred to as the confidentiality of sources or in the U.S. as the reporter’s privilege is a right accorded to journalists under the laws of many countries, as well as under international law. It prohibits authorities, including the courts, from compelling a journalist to reveal the identity of an anonymous source for a story. The right is based on recognition that without a strong guarantee of anonymity, many would be deterred from coming forward and sharing information of public interests with journalists. As a result, problems such as corruption or crime might go undetected and unchallenged, to the ultimate detriment of society as a whole. In spite of any such legal protections, the pervasive use of traceable electronic communications by journalists and their sources provides governments with a tool to determine the origin of information. In the United States, the federal government legally contends that no such protection exists for journalists.

A famous instance of the use of an anonymous source is the series of articles by Washington Post reporters Bob Woodward and Carl Bernstein which uncovered the Watergate Scandal, ultimately leading to the resignation of US President Richard Nixon. Woodward and Bernstein relied extensively on information provided by someone known to the world only under the nickname Deep Throat. Woodward and Bernstein were not forced to invoke the protection of sources since the US authorities made no attempt to uncover the identity of “Deep Throat”. In 2005 W. Mark Felt, who at the time had been Associate Director of the US Federal Bureau of Investigation, revealed that he was “Deep Throat”.

No legal cover for journalists refusing to divulge source

The government’s avowed resolve to take the “strongest action” against those responsible for the leakage of the Army chief‘s letter has thrown up a journalistic concern. If a case is booked under the Official Secrets Act, can investigators issue summons to Saikat Dutta, the author of the story published in DNA, asking him to disclose the identity of his source? What will happen if he were to claim journalistic privilege, given that it is yet to be codified in India? Can the courts invoke “national security” to override the confidentiality of journalistic sources?

There is no clear answer to any of these questions as the balance of conflicting interests—source confidentiality versus larger public interest—depends on a case-by-case appraisal. While the Supreme Court has so far not been called upon to deal with this delicate balance, the high courts in the few cases that came up before them have tended to let public interest arguments ride roughshod over journalistic privilege.

In the 1986 case of Jai Prakash Agarwal vs Bishambar Dutt Sharma, the Delhi high court directed the reporters of Jan Satta and Punjab Kesari to disclose their sources for a story alleging that a judicial verdict in an election petition had been fixed. Three years later, in a case against The Hindustan Times, the Patna high court ruled that it was within its right to command a journalist to disclose his source. In the 1997 case against The Pioneer, the Delhi HC spared the journalist from disclosing his source as his story had been found to be baseless. “No useful purpose would be served by insisting on the disclosure of the person interviewed or the source of information,” the bench added.

The rationale of the privilege otherwise recognized around the world is that journalists will be unable to play the role of a watchdog unless they can guarantee confidentiality to their sources. It is a departure from the general rule that everybody has a legal obligation to give evidence. Twice in the last 30 years, the Law Commission of India recommended that this privilege be codified so that there is greater clarity on the subject. But successive governments have displayed little will to introduce any such amendment for fear making the media more combative. As a result, the Indian Evidence Act has remained silent on the confidentiality of journalistic sources even as it confers privilege on other categories of communications such as those between a lawyer and his client or those between a man and his wife.

Thus, in criminal proceedings, there is no statutory exemption to a journalist in any circumstances from disclosing his source. The only law that provides such immunity is Section 15(2) of the Press Council Act 1978, which anyway deals with a body that has no teeth. This legislative neglect is despite a history of heroic gestures made by journalists during the freedom struggle to protect their sources. Kaliprasanna Kavyabisharad, editor of Bengali publication Hitabadi, declined to identify the author of a poem published in his paper for which he had been charged with libel. The manuscript was produced in court but only after the portion bearing the author’s name had been torn off. He was sent to jail for nine months.

In another stirring instance from the colonial era, Bipin Chandra Pal, who ran a daily called Bande Mataram, refused to confirm if Sri Aurobindo was the author of an anonymous article for which the latter was being tried for sedition. While Aurobindo was acquitted in 1907, Pal himself was sent to jail for six months for refusing to depose against him.

OFFICIAL SECRETS ACT 1923

●      The Official Secrets Act (1923), was evidently enacted during the British rule. This law was necessary and justified to make helping an enemy state against India a punishable offence. According to it, one cannot approach, inspect, or even pass over a prohibited government site or area.

●      The Act says that helping the enemy state can be in the form of communicating a sketch, plan, model of an official secret, or of official codes or passwords, to the enemy. The disclosure of any information that is likely to affect adversely the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States, is punishable by this act.

●      Punishments under the Act range from three to fourteen years in jail. A person prosecuted under this Act can be charged with the crime even if the action was unintentional and not intended to endanger the security of the state. The Act only empowers persons in positions of authority to handle official secrets, and others who handle it in prohibited areas or outside them are liable for punishment.

●      Journalists also have to help members of the police forces above the rank of the sub-Inspector and members of the Armed forces with investigation regarding an offence, up to and including revealing his sources of information (If required).

●      Under the Act, search warrants can be issued at any time if the magistrate feels that based on the evidence in front of them there is enough danger to the security of the state. The public may be excluded from court proceedings if the prosecutions feels that any information which is going to be passed on during the proceedings is sensitive. This also includes media; so the journalists will not be allowed to cover that particular case.

●      When a company is seen as an offender under this Act, everyone involved with the management of the company including the board of directors can be liable for punishment. In the case of a newspaper, everyone including the editor, publisher and the proprietor can be jailed for an offence.

●      The Official Secrets Act is very strong and has always come under criticism since it is against the principles of transparent governance and sometimes in conflict with the Right to Information Act.

●      In June 2002, journalist Iftikhar Gilani was, arrested for violating the OSA 1923. He was charged with a case under the Obscenity Act added to it. The first military report suggested that the information he was accused of holding was “secret” despite being publicly available. The second military intelligence report contradicted this, stating that there was no “official secret”. Even after this, the government denied the opinion of the military and was on the verge of challenging it when the contradictions were exposed in the press. The military reported that “the information contained in the document is easily available” and “the documents carries no security classified information and the information seems to have been gathered from open sources”. On January 13, 2003, the government withdrew its case against him to prevent having two of its ministries having to give contradictory opinions. Gilani was released the same month. The Delhi high court greatly reduced the powers of the act by ruling that the publication of a document merely labelled “secret” shall not render the journalist liable under the law.

●      The point is to first clearly define what constitutes official secrets. And for that, the government does not need a special law. The OSA is not what it appears to be: a piece of legislation meant to prevent leakage of information that would endanger the security and sovereignty of India. It’s instead, a legislative attempt to render governance opaque.

●      There has been a persistent demand in recent times that the government needs to not only abolish the OSA now but consolidate the post-RTI transparency regime. That would make it compulsory for all government departments to make all (except the most sensitive information) information public. This would compel them to take better care of their official records and speed up the introduction of e-governance in all areas of public life.

PRESS AND REGISTRATION OF BOOKS ACT 1867

WHAT THE LAW IS ABOUT: This act has been introduced to regulate printing-presses and newspapers. It provides for the preservation of copies of books and newspapers printed in India and for the registration of such books and newspapers.

The law applies to the whole of India.

According to this act, “Book” includes every volume, part of division of a volume, and pamphlet, in any language, and every sheet of music, map, chart or plan separately printed.

“Editor” means the person who controls the selection of the matter that is published in a newspaper.

“Newspaper” means any printed periodical work containing public news or comments on public new”

“Paper” means any document, including a newspaper, other than a book.

“Press Registrar” means the Registrar of newspapers for India appointed by the Central Government. It includes any other person appointed by the Central Government to perform all or any of the functions of the Press Registrar;

“Printing” includes cyclostyling and printing by lithography;

OF PRINTING-PRESSES AND NEWSPAPERS

Some of the important provisions of this Act are as follows

*Every book or paper printed within India shall have printed legibly on it the name of the printer and the place of printing, and (if the book or paper be published [the name] of the publisher and the place of publication.

*If the place where a press is kept, is changed, a new declaration is necessary:

Provided that where the change is for a period not exceeding sixty days and the keeper of the press continues to be the same.

* Name of the person who is the editor should be printed clearly on the copy of the newspaper.

*The printer and the publisher of every such newspaper shall appear in person or by agent authorized, should make the following declaration:

“I, A.B., declare that I am the printer (or publisher, or printer and publisher) of the newspaper titled and to be printed or published, or to be printed and published, as the case may be) at. . . .”

*Every declaration shall specify the title of the newspaper, the language in which it is to be published and the periodicity of its publication.

*Where the printer or publisher of a newspaper making a declaration is not the owner, the declaration shall specify the name of the owner.

* Where the title of any newspaper or its language or the periodicity of its publication is changed, a new declaration shall be necessary before the publication of the newspaper can be continued.

* A new declaration will have to be made with every ownership change. The same goes for the place of printing or publication:

*Where a newspaper has ceased publication for a period exceeding twelve months, every declaration, a new declaration shall be necessary before the newspaper can be re-published.

*If any person, whose name has appeared as editor on a copy of a newspaper, claims that he was not the editor of the issue on which his name has so appeared, he may, within two weeks of his becoming aware that his name has been so published, appear before a District, Presidency or Sub-divisional Magistrate and make a declaration that his name was incorrectly published in that issue. And if the Magistrate after making such inquiry that such declaration is true, he shall certify accordingly.

*Any person aggrieved by an order of a Magistrate refusing to authenticate a declaration may, within sixty days from the date on which such order is communicated to him, make an appeal to the Appellate Board to be called the Press and Registration Appellate Board.

*On receipt of an appeal, the Appellate Board may confirm, modify or set aside the order.

WHAT’S THE PUNISHMENT:  Whoever shall edit, print or publish any newspaper without following the rules laid down is liable to be punished with fine of not less than Rs 2000 or imprisonment for a term not exceeding six months, or both.

*If any person who has ceased to be a printer or publisher of any newspaper fails or neglects to make a declaration shall be punishable by fine not exceeding Rs 200.

REGISTRATION OF NEWSPAPERS

Under the Act, the central government may appoint a Registrar of Newspapers for India. He is required to do the following:

*Maintain in the prescribed manner a Register of newspapers.

*As far as may be practicable, the register may contain particulars such as

Title of the newspaper

(b) Language in which the newspaper is published

(c) Periodicity of the publication of the newspaper

(d) Name of the editor, printer and publisher of the newspaper

(e) Place of printing and publication

(f) Average number of pages per week

(g) Number of days of publication in the year;

(h) Average number of copies printed, the average number of copies sold to the public and the average number of copies distributed free to the public.

(i) Retail selling price per copy;

(j) Names and addresses of the owners of the newspaper.

*On receiving a declaration in respect of a newspaper, and on the publication of such newspaper, the Press Registrar shall as soon as practicable thereafter, issue a certificate of registration in respect of that newspaper to the publisher.

*The publisher of every newspaper shall furnish to the Press Registrar all details

WHAT’S THE PUNISHMENT: If the publisher of any newspaper

(a) refuses or neglects to follow the provisions  or

publishes in the newspaper any particulars relating to the newspaper which are false;

he shall be punishable with fine, which may extend to Rs 500.

COPYRIGHT ACT 1957

INTRODUCTION:

A work relating to literature, music, drama or art is considered an intellectual property. This is because a person who does this work indulges in something creative. It is a product of his own intellect and therefore he has a personal right over it. Just as a person can own landed property, he can also own his writings.  For example, when a person writes a book, it becomes his intellectual property. Works relating to writings – be it about book, drama, music or art – thus cannot be copied, reproduced in any form without the permission of the person to whom it belongs.

The story of recent movie Three Idiots was taken from Chetan Bhagat’s book “Five Point Someone”. It would have been illegal for the makers of the film to have made it without Bhagat’s written permission or paying him royalty money. This goes the serials, programmes etc that one gets to see on the TV. Similarly, articles/photographs written in newspapers by fjcolumnists and their staffers automatically become the intellectual property of that newspaper or that channel.

Sometimes it is seen that one channel uses the visuals or stills which are the exclusive property of another channel. In such a case, the former channel seeks a formal permission (or gives credit) to the other channel. If this is done without permission, the channel whose property has been used can claim damages under the Copyright Act of 1957.

So whenever someone’s literature, drama, music or art is passed off as one’s own, the Copyright Act (1957) is said to be violated.

Copyright is an exclusive right to do or to authorize others to do some acts with respect to a work created by a person. So if X rights a story and copyrights it, he can either make a movie based on the book himself or allow others to do so. The work may be literary, dramatic, musical, artistic, video, computer programs, databases etc. The expression ‘literary and artistic works’ includes every production in the literary, scientific and artistic sphere, whatever may be the mode or form of its expression. It could be a book, a pamphlet and any other writing, a lecture, an address, a sermon, a drama, a musical composition (song), a piece of choreography, cinematography, a painting, an architecture, a sculpture, an engraving and lithography; photographic works; applied art; illustrations , maps, plans, sketches and three-dimensional works relative to science or architecture.

Under the Act, translations, adaptations, arrangements of music and other alterations of a literary or artistic work are protected as original works unless it goes against the spirit of the original work. Collections of literary or artistic works such as encyclopedias which by reason of the selection and arrangement of their contents, constitute intellectual creations are also protected as such.

THE PURPOSE

The object of copyright law is to protect the author of the work from unlawful and unscrupulous persons who may exploit the copyrighted work by reproducing it. Copyright has assumed importance today.  Earlier, the commercial use was not intended but fame and personal satisfaction was paramount objective. In order to regulate the rights, duration, liabilities of a copyright holder, a law was enacted in India called THE COPYRIGHT ACT, 1957.

This Act spells out the process to register a copyright. It has a Registrar which accepts applications and copy of the work for record and issues certificates. The Act also spells the subject matter of copyright, Term of copyright, Authors and Owners of copyright, Rights ‘ conferred by copyright, How to assign, transfer and relinquish (give up) a copyright, How to license, what is Infringement of copyright, what are remedies against an Infringement of a copyright, International copyright, Rights of Broadcasting Organisations and Performance, Registration of copyright, offences, Appeals etc.

The first and the foremost requirement is originality. It should not be derived from another work. There are many instances when we have heard a Bollywood film director saying that he was “inspired” by a Hollywood film when the fact is he actually lifts it.  Originality should not be confused with novelty. A work may be original even though it resembles any other work. Here important point to be noted is that there is no copyright of an idea out on expression.

Section 14 of the Copyright Act is of specific interest to journalism. This section grants exclusive rights on case of literary, drama, musical or artwork. A person who has a copyright on such work, alone has the right to allow:

  1. Reproduce the work in part or in full
  2. To publish the work
  3. To make an adaptation of his work

THE ACT DEFINES:

  1. Adaptation means:
    1. In relation to a dramatic work, the conversion of the work into a non-dramatic work;
    2. In relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise;
    3. In relation to a literary or dramatic work, any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical; and
    4. In relation to a musical work, any arrangement or transcription of the work;


  2. Author means:
    1. in relation to literary or dramatic work, the author of the work;
    2. in relation to a musical work, the composer;
    3. in relation to an artistic work other than a photograph, the artist;
    4. in relation to a photograph, the person taking the photograph;
    5. in relation to a cinematograph film, the owner of the film at the time of its completion; and
    6. in relation to a record, the owner of the original plate from which the record is made, at the time of the making of the plate
  1. Infringing copy means,
    1. in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematograph film;
    2. in relation to a cinematograph film, a copy of the film or a record embodying the recording in any part of the soundtrack associated with the film;
    3. in relation to a record, any such record embodying the same recording; and
    4. in relation to a programme in which a broadcast reproduction right subsists under section 37, a record recording the programme, if such reproduction, copy or record is made or imported in violation of the provisions of this Act.
  1. Musical work means,
    Any combination of melody and harmony or either of them, printed, reduced to writing or otherwise graphically produced or reproduced;
  1. Photograph includes photo-lithograph and any work produced by any process similar to photography but does not include any part of a cinematograph film;
  1. Record means Any disc, tape, perforated roll or other device in which sounds are embodied so as to be capable of being reproduced therefrom, other than a soundtrack associated with a cinematograph film;
  1. DISPUTED AND BOARD: Disputes relating to violation of copyright has to be referred to the Copyright Board which functions from the Copyright Office. A Registrar of Copyrights assisted by one or two deputy registrars are appointed under the Act. The Copyright Board has a chairman and members not less than two or more than eight. The Chairman is a person who is or has been, a Judge of the Supreme Court or a High Court.
    In case of a dispute among the members of the Copyright Board, opinion of majority members will prevail. If there is no majority:

                          i. if the Chairman was one of the members who heard the matter, the opinion of the Chairman shall prevail;

                        ii. if the Chairman was not one of the members who heard the matter, the matter shall be referred to him for his opinion and that opinion shall prevail.

OWNERSHIP OF COPYRIGHT AND THE RIGHTS OF THE OWNER: The author will always be the first owner of copyright, given that:

a)     in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;

b)     Subject to the provisions of clause (a), in case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

TERM OF COPYRIGHT:

Term of copyright in published literary, dramatic, musical and artistic works:- Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until fifty years from the beginning of the calendar year next following the year in which the author dies.

Term of copyright in photographs:  In the case of a photograph, copyright shall subsist until fifty years from the beginning of the calendar year next following the year in which the photograph is published.

Term of copyright in cinematograph films:- In the case of a cinematograph film, copyright shall subsist until fifty years from the beginning of the calendar year next following the year in which the film is published.

Term of copyright in records:- In the case of a record, copyright shall subsist until fifty years from the beginning of the calendar year next following the year in which the record is published

INFRINGEMENT OF COPYRIGHT: Copyright in a work shall be considered to be violated:

a)     when any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act –

                          i. does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or

                        ii. permits for profit any place to be used for the performance of the work in public where such performance constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such performance would be an infringement of copyright.

IT IS NOT AN INFRINGEMENT WHEN:

a)     a fair dealing with a literary, dramatic, musical or artistic work for the purposes of —

                          i. Research or private study ;

                        ii. Criticism or review, whether of that work or of any other work;

b)     A fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events —

                          i. in a newspaper, magazine or similar periodical, or

                        ii. by radio-diffusion or in a cinematograph film or by means of photographs;

c)     The reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding;

d)     the reproduction or publication of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the members of that Legislature;

e)     the reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force;

PUNISHMENT:

Any person who knowingly violates or even helps others to violate one’s copyright can face imprisonment up to 1 year or fine or both.Where copyright in any work has been infringed, the owner of the copyright is entitled to all such remedies by way of injunction, damages, accounts. Any person aggrieved by any final decision or order of the Copyright Board, not being a decision or order made in an appeal under sub-section (1), may, within three months from the date of such decision or order, appeal to the High Court within whose jurisdiction the appellant actually and voluntarily resides or carries on business or personally works.

LACK OF AWARENESS IN INDIA ABOUT THIS LAW:

Compared to many other laws enacted during the British rule, the Copyright Act is relatively new. There are very few people who are aware of the law and its minute details. This is the reason why there are many violations. We have cases of video piracy where the CD of a film or a copy of the book is available even before the original comes up for use. There are cases song tunes copied, extracts from books reproduced, films made on the life of people without their permission. Not many are aware of the procedure to be followed about how to make a copyright, whom to approach, what are their rights and what has to be done enforce them.

OBSCENITY

SECTION 292:

This section refers to obscenity and defines what it means.

WHAT IS THE OFFENCE:

a)     Selling, letting to hire, distributing, publicly exhibiting or in any manner putting into circulation, or for purposes of selling, hiring, distributing, publicly exhibiting or circulating, making, reducing or possessing any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or

b)     importing, exporting or conveying any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or

c)     taking part in or receiving profits from any business in the course of which the offender knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or

d)     advertising or making known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person.

PUNISHMENT PRESCRIBED:

On first conviction with imprisonment which may extend to 2 years, and with fine up to Rs 2000. On second or subsequent conviction, with imprisonment up to 5 years, and fine up to Rs 5000.

EXCEPTIONS:

It does not apply if…

a)     (a) any book, pamphlet, paper, writing, drawing, painting, representation or figure- (the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or which is kept or used bona fide for religious purposes;

b)     any representation sculptured, engraved, painted or otherwise represented on or in-

                          i. any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958 ), or

                        ii. any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.

ILLUSTRATIONS:

Selling or attempting to sell pornographic books, CDs, pictures etc and even trying to make money from it. However, the nudes of Khajuraho and Konark temples don’t come under it and are considered a work of art. The deciding factor is whether such an act is committed to just titillate a person.

SECTION 293:

This section refers to selling of obscene objects to young persons. It is just an extension of Section 292.

WHAT IS THE OFFENCE:

Selling, letting to hire, distributing, exhibiting or circulating to any person under the age of twenty years any such obscene object referred to in the preceding section, or offering or attempting to do so.

PUNISHMENT PRESCRIBED:

On first conviction with imprisonment which may extend to three years, and with fine up to Rs 2000. In case of a second or subsequent conviction, with imprisonment which may extend to 7 years, and with fine up to Rs 5000.

RIGHT TO PRIVACY VS RIGHT TO KNOW.

A constitutional right is a right granted by a country’s constitution and cannot be legally denied by the government. Civil rights are the protections and privileges of personal liberty given to all citizens by law. Examples of civil rights and liberties include the right to get redress if injured by another, the right to privacy, etc.

Fundamental right themselves have no fixed content, most of them are empty vessel into which each generation must pour its content in the light of its experience. (Just a line that can be used)

In the Indian Society, the right to privacy has become a fundamental human right, which is implicit under the right to life and personal liberty. Every citizen of India has a right to privacy or right to be let alone and has the right to safeguard his own privacy, that of his family, marriage, procreation motherhood, childbearing, education etc. and no person can publish anything relating to such matters without the consent of the person concerned. The right to freedom of speech and expression and the right to privacy are two sides of the same coin. One person’s right to know and be informed may violate another’s right to be left alone. Just as the freedom of speech and expression is vital for the dissemination of information on matters of public interest, it is equally important to safeguard the private life of an individual to the extent that it is unrelated to public duties or matters of public interest. The law of privacy endeavours to balance these competing freedoms. However, the freedom of media can’t infringe the right to privacy.

In India, the Constitution does not expressly recognize the right to privacy. The concept of privacy as a fundamental right first evolved in 1964 in the case of Kharak Singh v State of Uttar Pradesh. The Supreme Court, for the first time, recognized that there is a right of privacy implicit in the Indian Constitution under Article 21. The Court held that the Right to Privacy is an integral part of the Right to Life, but without any clear-cut laws, it still remains in the grey area.

Supreme Court’s decision to hold Right to Privacy as a Fundamental Right under Chapter Three of the Indian Constitution and as an integral part of Right to Life and Personal Liberty guaranteed under Article 21 is a landmark judgment that has far-reaching implications for the future of India as a liberal democracy. It is also expected to mould the evolution of laws and rights around privacy in ways that we are currently in no position to foresee.

EXAMPLES :

1.Breach of privacy is rampant with social media (Cambridge Analytica Fb case).

2.SC on Aadhar Linking, etc.

In most of the common law constitutions, right to privacy is not given expressly to their citizens but derived from judicial review and court decisions. The term “privacy” has been described as “the rightful claim of the individual to determine the extent to which he wishes to share of himself with others and his control over the time, place and circumstances to communicate with others. It means his right to withdraw or to participate as he sees fit. It also means the individual’s right to control dissemination of information about himself; it is his own personal possession”

The right to privacy in India has derived itself from essentially two sources: the common law of torts and the constitutional law In common law, a private action for damages for unlawful invasion of privacy is maintainable. The printer and publisher of a journal, magazine or book are liable in damages if they publish any matter concerning the private life of the individual without such person’s consent. There are two exceptions to this rule: first, that the right to privacy does not survive once the publication is a matter of public record and, second, when the publication relates to the discharge of the official duties of a public servant, an action is not maintainable unless the publication is proved to be false, malicious or is in reckless disregard for truth.

An encroachment upon one’s privacy is only shielded if the offender is the state and not a private entity. If the offender is a private individual then there is no effective remedy except in tort where one can claim damages for intruding in his privacy and no more.

Right to know laws also promote a democratic decision making and the power of ordinary citizens. Equipped with better information, citizens can participate on a more equal footing it regulated entities permitting, land use and other political decisions. Local resident and member of the public can exert pressure on firm to reduce risky activities or eliminate unnecessary toxic exposures. Right to know laws also can improve health and safety, by facilitating emergency planning, avoiding accidents, and helping the government determine area In need of additional regulation. They also provide strong incentive for firm to undertake self-regulation and reduce risky activities; when companies face a choice between, say, disclosing harmful substances in their product and reformulating the product to eliminating the harmful substances, often they chose to eliminate the substances.

RIGHT TO INFORMATION ACT 2005 (RTI)

The basic duty of a journalist is to provide his readers with the correct and detailed information. In order to discharge his duty effectively, he has to gather information that enlightens and informs his readers. Apart from journalists, individuals involved in social, political and cultural activism also need information from time to time.

However, more often than not, it is difficult to get or dig out information from those in power or the government authorities. This is because there is always reluctance on the part of the authorities to part with information. It is especially the case when the information is damaging to them or puts them in bad light. In a democracy, the affairs of the government need to be transparent, and suppressing information is like suppressing the truth.

Journalists, activists and interested individuals, who would find it difficult to get relevant information from the government authorities, can now invoke (use) the Right to Information Act to get the information they need. Until recently, the government authorities would do everything within their means or come out with all kinds of excuses to give information. But now under the RTI, it is compulsory for them to do so. However, there are certain modalities and procedures that have to be followed under this law.

The RTI was enacted by the Parliament in June 2005 and came into effect on October 13, 2005. It applies to all states except Jammu and Kashmir (which has a separate law). Till then, disclosure of information was restricted under the Official Secrets Act (OSA) of 1923. The OSA still exists, but the RTI relaxes some of its provisions. According to the OSA, no information can be disclosed by the government authorities in matters relating to security of the State, sovereignty of the country and friendly relations with foreign states.

The RTI Act is applicable to all constitutional authorities, including the executive, legislature and judiciary; any institution or body established or constituted by an act of Parliament or a state legislature. It is also defined in the Act that bodies or authorities established or constituted by order or notification of appropriate government including bodies “owned, controlled or substantially financed” by government, or non-Government organizations “substantially financed, directly or indirectly by funds” provided by the government are also covered in it. The law is not applicable to private bodies/institutions unless they are financed by the central or state government.

Under the Act, every public authority has to computerise records so that it reaches all cross-sections of people. It specifies that citizens have a right to

  1. Request any information (only that info defined under the Act)
  2. Take copies of documents
  3. Inspect documents, works and records
  4. Take certified samples of materials of work
  5. Obtain information in form of printouts, diskettes, floppies, tapes, video cassettes ‘or in any other electronic mode’ or through printouts.

WHAT HAS TO BE DONE TO GET INFORMATION

The Act specifies that all authorities covered must appoint their Public Information Officer (PIO). Individuals seeking information have to submit a request to the PIO in writing. The PIO is under obligation to provide information to (only Indian) citizens. If the request concerns another public authority (in whole or part) it is the PIO’s responsibility to transfer/forward the concerned portions of the request to a PIO of the other within five days. While making the request, citizens need not disclose any information except their name and contact particulars. The Act specifies time limits for replying to the request.

  1. If the request has been made to the PIO, the reply is to be given within 30 days of receipt.
  2. If the PIO transfers the request to another public authority, the time allowed to reply is 30 days but computed from the day after it is received by the PIO of the transferee authority.
  3. Information concerning corruption and Human Rights violations by Security agencies (those listed in the Act) is to be provided within 45 days but with the prior approval of the Central Information Commission. However, if life or liberty of any person is involved, the PIO is expected to reply within 48 hours.

It must be noted that the information has to be paid for and cannot be obtained for free.

If information is not provided within the period specified above, it is treated as refusal. If the refusal is with or without reasons, citizens can file an appeal or complaint. Information not provided in prescribed time has to be provided free of charge. There is a fee of Rs 10 for filing the request, Rs 2 per page of information and Rs 5 for each hour of inspection after the first hour.

WHAT CONSTITUTES INFORMATION

Under the Act, information has been defined as any material in any form including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body

WHAT CANNOT BE DISCLOSED

●       Information which would adversely affect the sovereignty (independence) and integrity of India, the security, strategic, scientific or economic” interests of the country, relations with foreign nation or lead to incitement of an offence;

●       Information which has been forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

●       Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

●       Information including commercial confidence, trade secrets or intellectual property, unless the authority is satisfied that larger public interest calls for the disclosure of such information;

●       Information received in confidence from foreign government;

●       Information which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

●       Information which would obstruct or stop the process of investigation or apprehension or prosecution of offenders;

●       Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;

●       Personal information which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual.

EXCLUSIONS

Central Intelligence and Security agencies Intelligence Bureau, (IB), Research and Analysis Wing (RAW), Central Bureau of Investigation (CBI), Directorate of Revenue Intelligence, Central Economic Intelligence Bureau, Directorate of Enforcement, Narcotics Control Bureau, Aviation Research Centre, Special Frontier Force, BSF, CRPF, ITBP, CISF, NSG,  Assam, Rifles, Special Service Bureau, Special Branch (CID. The exclusion, however, is not absolute and these organizations have an obligation to provide information pertaining to allegations of corruption and human rights violations. However, information relating to allegations of human rights violation could be given but only with the approval of the Central or State Information Commission.

RIGHT TO PRIVACY

Last week’s unanimous judgment by the Supreme Court of India (SCI) in Justice K.S. Puttaswamy (Retd) vs Union of India is a resounding victory for privacy. The ruling is the outcome of a petition challenging the constitutional validity of the Indian biometric identity scheme Aadhaar. The judgment’s ringing endorsement of the right to privacy as a fundamental right marks a watershed moment in the constitutional history of India. The one-page order signed by all nine judges declares:

The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

The right to privacy in India has developed through a series of decisions over the past 60 years. Over the years, inconsistency from two early judgments created a divergence of opinion on whether the right to privacy is a fundamental right. Last week’s judgment reconciles those different interpretations to unequivocally declare that it is. Moreover, constitutional provisions must be read and interpreted in a manner which would enhance their conformity with international human rights instruments ratified by India. The judgment also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms.

The judgment, in which the judges state the reasons behind the one-page order, spans 547 pages and includes opinions from six judges, creating a legal framework for privacy protections in India. The opinions cover a wide range of issues in clarifying that privacy is a fundamental inalienable right, intrinsic to human dignity and liberty.

The decision is especially timely given the rapid roll-out of Aahaar. In fact, the privacy ruling arose from a pending challenge to India’s biometric identity scheme. We have previously covered the privacy and surveillance risks associated with that scheme. Ambiguity on the nature and scope of privacy as a right in India allowed the government to collect and compile both demographic and biometric data of residents. The original justification for introducing Aadhaar was to ensure government benefits reached the intended recipients. Following a rapid roll-out and expansion, it is the largest biometric database in the world, with over 1.25 billion Indians registered. The government’s push for Aadhaar has led to its wide acceptance as proof of identity, and as an instrument for restructuring and facilitating government services.

Given the government’s aggressive defense of Aadhaar, many human rights defenders feared the worst. The steady expansion of the scheme and the delay over the nine-judge bench being formed allowed Aadhaar to become an insidious part of Indian citizens’ life. Indeed, in many ways the delay has led to Aadhaar being linked to all manner of essential and nonessential services. In last week’s 547-page judgment, the Court is clear about the fundamental right to privacy and has overruled these two past judgments insofar as their observations on privacy were concerned. The constitutional framework for privacy clarified last week by the Court will breathe life into the Aadhaar hearings.

While it awaited clarification on the right to privacy, the bench hearing the constitutional challenge to Aadhaar passed an interim order restricting compulsory linking of Aadhaar for benefits delivery. The order ends the legal gridlock in the hearings on the validity of the scheme. The identification database that Aadhaar builds will not be easy to reconcile in the framework for privacy drawn up in the judgments. Legal experts are of the opinion that, following the judgment, “it is amply clear that Aadhaar shall have to meet the challenge of privacy as a fundamental right.”

The Aadhaar hearings, which were cut short, are expected to resume under a smaller three- or five-judge bench later this month. Outside of the pending Aadhaar challenge, the ruling can also form the basis of new legal challenges to the architecture and implementation of Aadhaar. For example, with growing evidence that state governments are already using Aadhaar to build databases to profile citizens, the security of data and limitations on data convergence and profiling may be areas for future privacy-related challenges to Aadhaar.

Implications for Future Case and Statute Law

The lead judgment calls for the government to create a data protection regime to protect the privacy of the individual. It recommends a robust regime which balances individual interests and legitimate concerns of the state. Justice Chandrachud notes, “Formulation of a regime for data protection is a complex exercise that needs to be undertaken by the state after a careful balancing of requirements of privacy coupled with other values which the protection of data subserves together with the legitimate concerns of the state.” For example, the court observes, “government could mine data to ensure resources reached intended beneficiaries.” However, the bench restrains itself from providing guidance on the issues, confining its opinion to the clarification of the constitutionality of the right to privacy.

The judgment will also have ramifications for a number of contemporary issues pending before the supreme court. In particular, two proceedings—on Aadhaar and on WhatsApp-Facebook data sharing—will be test grounds for the application and contours of the right to privacy in India. For now, what is certain is that the right to privacy has been unequivocally articulated by the highest Court. There is much reason to celebrate this long-due victory for privacy rights in India. But it is only the first step, as the real test of the strength of the right will in how it is understood and applied in subsequent challenges.

Cyber Crime

CYBER CRIME

INTRODUCTION:

The term ‘cyber crime’ is a misnomer. This term has nowhere been defined in any statute /Act passed or enacted by the Indian Parliament. The concept of cyber crime is not radically different from the concept of conventional crime. Both include conduct whether act or omission, which cause breach of rules of law and counterbalanced by the sanction of the state.

Before evaluating the concept of cyber crime it is obvious that the concept of conventional crime be discussed and the points of similarity and deviance between both these forms may be discussed.

CONVENTIONAL CRIME:

Crime is a social and economic phenomenon and is as old as the human society. Crime is a legal concept and has the sanction of the law. Crime or an offence is “a legal wrong that can be followed by criminal proceedings which may result into punishment.”(1) The hallmark of criminality is that, it is breach of the criminal law. Per Lord Atkin “the criminal quality of an act cannot be discovered by reference to any standard but one: is the act prohibited with penal consequences”. (2)

A crime may be said to be any conduct accompanied by act or omission prohibited by law and consequential breach of which is visited by penal consequences.

CYBER CRIME

Cyber crime is the latest and perhaps the most complicated problem in the cyber world. “Cyber crime may be said to be those species, of which, genus is the conventional crime, and where either the computer is an object or subject of the conduct constituting crime” (13). “Any criminal activity that uses a computer either as an instrumentality, target or a means for perpetuating further crimes comes within the ambit of cyber crime”(12)

A generalized definition of cyber crime may be “ unlawful acts wherein the computer is either a tool or target or both”(3) The computer may be used as a tool in the following kinds of activity- financial crimes, sale of illegal articles, pornography, online gambling, intellectual property crime, e-mail spoofing, forgery, cyber defamation, cyber stalking. The computer may however be target for unlawful acts in the following cases- unauthorized access to computer/ computer system/ computer networks, theft of information contained in the electronic form, e-mail bombing, data didling, salami attacks, logic bombs, Trojan attacks, internet time thefts, web jacking, theft of computer system, physically damaging the computer system.

DISTINCTION BETWEEN CONVENTIONAL AND CYBER CRIME-

There is apparently no distinction between cyber and conventional crime. However on a deep introspection we may say that there exists a fine line of demarcation between the conventional and cyber crime, which is appreciable. The demarcation lies in the involvement of the medium in cases of cyber crime. The sine qua non for cyber crime is that there should be an involvement, at any stage, of the virtual cyber medium.

REASONS FOR CYBER CRIME:

Hart in his work “ The Concept of Law” has said ‘human beings are vulnerable so rule of law is required to protect them’. Applying this to the cyberspace we may say that computers are vulnerable so rule of law is required to protect and safeguard them against cyber crime. The reasons for the vulnerability of computers may be said to be:

Capacity to store data in comparatively small space-

The computer has unique characteristic of storing data in a very small space. This affords to remove or derive information either through physical or virtual medium makes it much more easier.

Easy to access-

The problem encountered in guarding a computer system from unauthorised access is that there is every possibility of breach not due to human error but due to the complex technology. By secretly implanted logic bomb, key loggers that can steal access codes, advanced voice recorders; retina imagers etc. that can fool biometric systems and bypass firewalls can be utilized to get past many a security system.

Complex-

The computers work on operating systems and these operating systems in turn are composed of millions of codes. Human mind is fallible and it is not possible that there might not be a lapse at any stage. The cyber criminals take advantage of these lacunas and penetrate into the computer system.

Negligence-

Negligence is very closely connected with human conduct. It is therefore very probable that while protecting the computer system there might be any negligence, which in turn provides a cyber criminal to gain access and control over the computer system.

Loss of evidence-

Loss of evidence is a very common & obvious problem as all the data are routinely destroyed. Further collection of data outside the territorial extent also paralyses this system of crime investigation.

CYBER CRIMINALS:

The cyber criminals constitute of various groups/ category. This division may be justified on the basis of the object that they have in their mind. The following are the category of cyber criminals-

1. Children and adolescents between the age group of 6 – 18 years –

The simple reason for this type of delinquent behaviour pattern in children is seen mostly due to the inquisitiveness to know and explore the things.  Other cognate reason may be to prove themselves to be outstanding amongst other children in their group. Further the reasons may be psychological even. E.g. the Bal Bharati (Delhi) case was the outcome of harassment of the delinquent by his friends.

2. Organised hackers-

These kinds of hackers are mostly organised together to fulfil certain objective. The reason may be to fulfil their political bias, fundamentalism, etc. The Pakistanis are said to be one of the best quality hackers in the world. They mainly target the Indian government sites with the purpose to fulfil their political objectives. Further the NASA as well as the Microsoft sites is always under attack by the hackers.

3.      Professional hackers / crackers –

Their work is motivated by the colour of money. These kinds of hackers are mostly employed to hack the site of the rivals and get credible, reliable and valuable information. Further they are ven employed to crack the system of the employer basically as a measure to make it safer by detecting the loopholes.

4.       Discontented employees-

 This group include those people who have been either sacked by their employer or are dissatisfied with their employer. To avenge they normally hack the system of their employee.

MODE AND MANNER OF COMMITING CYBER CRIME:

Unauthorized access to computer systems or networks / Hacking-

This kind of offence is normally referred as hacking in the generic sense. However the framers of the information technology act 2000 have no where used this term so to avoid any confusion we would not interchangeably use the word hacking for ‘unauthorized access’ as the latter has wide connotation.

Theft of information contained in electronic form-

This includes information stored in computer hard disks, removable storage media etc.  Theft may be either by appropriating the data physically or by tampering them through the virtual medium.

Email bombing-

This kind of activity refers to sending large numbers of mail to the victim, which may be an individual or a company or even mail servers there by ultimately resulting into crashing.

Data diddling-

This kind of an attack involves altering raw data just before a computer processes it and then changing it back after the processing is completed. The electricity board faced similar problem of data diddling while the department was being computerised.

Salami attacks-

This kind of crime is normally prevalent in the financial institutions or for the purpose of committing financial crimes. An important feature of this type of offence is that the alteration is so small that it would normally go unnoticed. E.g. the Ziegler case wherein a logic bomb was introduced in the bank’s system, which deducted 10 cents from every account and deposited it in a particular account.

Denial of Service attack-

The computer of the victim is flooded with more requests than it can handle which cause it to crash. Distributed Denial of Service (DDoS) attack is also a type of denial of service attack, in which the offenders are wide in number and widespread. E.g. Amazon, Yahoo.

7.    Virus / worm attacks-

Viruses are programs that attach themselves to a computer or a file and then circulate themselves to other files and to other computers on a network. They usually affect the data on a computer, either by altering or deleting it. Worms, unlike viruses do not need the host to attach themselves to. They merely make functional copies of themselves and do this repeatedly till they eat up all the available space on a computer’s memory. E.g. love bug virus, which affected at least 5 % of the computers of the globe. The losses were accounted to be $ 10 million. The world’s most famous worm was the Internet worm let loose on the Internet by Robert Morris sometime in 1988.  Almost brought development of Internet to a complete halt.

8.     Logic bombs-

These are event dependent programs. This implies that these programs are created to do something only when a certain event (known as a trigger event) occurs. E.g. even some viruses may be termed logic bombs because they lie dormant all through the year and become active only on a particular date (like the Chernobyl virus).

 9. Trojan attacks-

  This term has its origin in the word ‘Trojan horse’. In software field this means an unauthorized programme, which passively gains control over another’s system by representing itself as an authorised programme. The most common form of installing a Trojan is through e-mail. E.g. a Trojan was installed in the computer of a lady film director in the U.S. while chatting. The cyber criminal through the web cam installed in the computer obtained her nude photographs. He further harassed this lady.

10. Internet time thefts-

Normally in these kinds of thefts the Internet surfing hours of the victim are used up by another person. This is done by gaining access to the login ID and the password. E.g. Colonel Bajwa’s case- the Internet hours were used up by any other person. This was perhaps one of the first reported cases related to cyber crime in India. However this case made the police infamous as to their lack of understanding of the nature of cyber crime.

11.  Web jacking-

This term is derived from the term hi jacking. In these kinds of offences the hacker gains access and control over the web site of another. He may even mutilate or change the information on the site. This may be done for fulfilling political objectives or for money. E.g. recently the site of MIT (Ministry of Information Technology) was hacked by the Pakistani hackers and some obscene matter was placed therein. Further the site of Bombay crime branch was also web jacked. Another case of web jacking is that of the ‘gold fish’ case. In this case the site was hacked and the information pertaining to gold fish was changed. Further a ransom of US $ 1 million was demanded as ransom. Thus web jacking is a process where by control over the site of another is made backed by some consideration for it.

CLASSIFICATION:

The subject of cyber crime may be broadly classified under the following three groups. They are-

1. Against Individuals

a. their person &

b. their property of an individual

2. Against Organization

a. Government

c. Firm, Company, Group of Individuals.

3. Against Society at large

The following are the crimes, which can be committed against the followings group

Against Individuals: –

i. Harassment via e-mails.

ii. Cyber-stalking.

iii. Dissemination of obscene material.

iv. Defamation.

v. Unauthorized control/access over computer system.

vi. Indecent exposure

vii. Email spoofing

viii. Cheating & Fraud

Against Individual Property: –

i. Computer vandalism.

ii. Transmitting virus.

iii. Netrespass

iv. Unauthorized control/access over computer system.

v. Intellectual Property crimes

vi. Internet time thefts

Against Organization: –

i. Unauthorized control/access over computer system

ii. Possession of unauthorized information.

iii. Cyber terrorism against the government organization.

iv. Distribution of pirated software etc.

Against Society at large: –

i.     Pornography (basically child pornography).

ii.    Polluting the youth through indecent exposure.

iii.   Trafficking

iv. Financial crimes

v.Sale of illegal articles

vi.Online gambling

vii. Forgery

The above mentioned offences may discussed in brief as follows:

1.       Harassment via e-mails-

Harassment through e-mails is not a new concept. It is very similar to harassing through letters. Recently I had received a mail from a lady wherein she complained about the same. Her former boy friend was sending her mails constantly sometimes emotionally blackmailing her and also threatening her. This is a very common type of harassment via e-mails.

2. Cyber-stalking-

The Oxford dictionary defines stalking as “pursuing stealthily”. Cyber stalking   involves following a person’s movements across the Internet by posting messages (sometimes threatening) on the bulletin boards frequented by the victim, entering the chat-rooms frequented by the victim, constantly bombarding the victim with emails etc.

 3.       Dissemination of obscene material/ Indecent exposure/ Pornography (basically child pornography) / Polluting through indecent exposure-

Pornography on the net may take various forms. It may include the hosting of web site containing these prohibited materials. Use of computers for producing these obscene materials. Downloading through the Internet, obscene materials. These obscene matters may cause harm to the mind of the adolescent and tend to deprave or corrupt their mind. Two known cases of pornography are the Delhi Bal Bharati case and the Bombay case wherein two Swiss couple used to force the slum children for obscene photographs. The Mumbai police later arrested them.

4.   Defamation

It is an act of imputing any person with intent to lower the person in the estimation of the right-thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule. Cyber defamation is not different from conventional defamation except the involvement of a virtual medium. E.g. the mail account of Rohit was hacked and some mails were sent from his account to some of his batch mates regarding his affair with a girl with intent to defame him.

4.      Unauthorized control/access over computer system-

This activity is commonly referred to as hacking. The Indian law has however given a different connotation to the term hacking, so we will not use the term “unauthorized access” interchangeably with the term “hacking” to prevent confusion as the term used in the Act of 2000 is much wider than hacking.

5.      E mail spoofing-

A spoofed e-mail may be said to be one, which misrepresents its origin. It shows it’s origin to be different from which actually it originates. Recently spoofed mails were sent on the name of Mr. Na.Vijayashankar (naavi.org), which contained virus.   

Rajesh Manyar, a graduate student at Purdue University in Indiana, was arrested for threatening to detonate a nuclear device in the college campus. The alleged e- mail was sent from the account of another student to the vice president for student services. However the mail was traced to be sent from the account of Rajesh Manyar.(15)

6.   Computer vandalism-

 Vandalism means deliberately destroying or damaging property of another. Thus computer vandalism may include within its purview any kind of physical harm done to the computer of any person. These acts may take the form of the theft of a computer, some part of a computer or a peripheral attached to the computer or by physically damaging a computer or its peripherals.

7.  Transmitting virus/worms-

This topic has been adequately dealt herein above.

 8.  Intellectual Property crimes / Distribution of pirated software-

Intellectual property consists of a bundle of rights. Any unlawful act by which the owner is deprived completely or partially of his rights is an offence. The common form of IPR violation may be said to be software piracy, copyright infringement, trademark and service mark violation, theft of computer source code, etc.

The Hyderabad Court has in a land mark judgement has convicted three people and sentenced them to six months imprisonment and fine of 50,000 each for unauthorized copying and sell of pirated software. (16)

9.  Cyber terrorism against the government organization

 At this juncture a necessity may be felt that what is the need to distinguish between cyber terrorism and cyber crime. Both are criminal acts. However there is a compelling need to distinguish between both these crimes. A cyber crime is generally a domestic issue, which may have international consequences, however cyber terrorism is a global concern, which has domestic as well as international consequences.  The common form of these terrorist attacks on the Internet is by distributed denial of service attacks, hate websites and hate emails, attacks on sensitive computer networks, etc. Technology savvy terrorists are using 512-bit encryption, which is next to impossible to decrypt. The recent example may be cited of – Osama Bin Laden, the LTTE, attack on America’s army deployment system during Iraq war.

Cyber terrorism may be defined to be “ the premeditated use of disruptive activities, or the threat thereof, in cyber space, with the intention to further social, ideological, religious, political or similar objectives, or to intimidate any person in furtherance of such objectives” (4)

 Another definition may be attempted to cover within its ambit every act of cyber terrorism.

A terrorist means a person who indulges in wanton killing of persons or in violence or in disruption of services or means of communications essential to the community or in damaging property with the view to –

(1) putting the public or any section of the public in fear; or

(2) affecting adversely the harmony between different religious, racial, language or regional groups or castes or communities; or

(3) coercing or overawing the government established by law; or

(4) endangering the sovereignty and integrity of the nation

and a cyber terrorist is the person who uses the computer system as a means or ends to achieve the above objectives. Every act done in pursuance thereof is an act of cyber terrorism.

10.Trafficking

  Trafficking may assume different forms. It may be trafficking in drugs, human beings, arms weapons etc. These forms of trafficking are going unchecked because they are carried on under pseudonyms. A racket was busted in Chennai where drugs were being sold under the pseudonym of honey.

Fraud & Cheating

Online fraud and cheating is one of the most lucrative businesses that are growing today in the cyber space. It may assume different forms. Some of the cases of online fraud and cheating that have come to light are those pertaining to credit card crimes, contractual crimes, offering jobs, etc.

Recently the Court of Metropolitan Magistrate Delhi (17) found guilty a 24-year-old engineer working in a call centre, of fraudulently gaining the details of Campa’s credit card and bought a television and a cordless phone from Sony website. Metropolitan magistrate Gulshan Kumar convicted Azim for cheating under IPC, but did not send him to jail. Instead, Azim was asked to furnish a personal bond of Rs 20,000, and was released on a year’s probation.

  STATUTORY PROVISONS:

The Indian parliament considered it necessary to give effect to the resolution by which the General Assembly adopted Model Law on Electronic Commerce adopted by the United Nations Commission on Trade Law. As a consequence of which the Information Technology Act 2000 was passed and enforced on 17th May 2000.the preamble of this Act states its objective to legalise e-commerce and further amend the Indian Penal Code 1860, the Indian Evidence Act 1872, the Banker’s Book Evidence Act1891 and   the Reserve Bank of India Act 1934. The basic purpose to incorporate the changes in these Acts is to make them compatible with the Act of 2000. So that they may regulate and control the affairs of the cyber world in an effective manner.    

The Information Technology Act deals with the various cyber crimes in chapters IX & XI. The important sections are Ss. 43,65,66,67. Section 43 in particular deals with the unauthorised access, unauthorised downloading, virus attacks or any contaminant, causes damage, disruption, denial of access, interference with the service availed by a person. This section provide for a fine up to Rs. 1 Crore by way of remedy. Section 65 deals with ‘tampering with computer source documents’ and provides for imprisonment up to 3 years or fine, which may extend up to 2 years or both. Section 66 deals with ‘hacking with computer system’ and provides for imprisonment up to 3 years or fine, which may extend up to 2 years or both. Further section 67 deals with publication of obscene material and provides for imprisonment up to a term of 10 years and also with fine up to Rs. 2 lakhs. (14)

ANALYSIS OF THE STATUTORY PROVISONS:

The Information Technology Act 2000 was undoubtedly a welcome step at a time when there was no legislation on this specialised field. The Act has however during its application has proved to be inadequate to a certain extent. The various loopholes in the Act are-

1. The hurry in which the legislation was passed, without sufficient public debate, did not   really serve the desired purpose (6)-

Experts are of the opinion that one of the reasons for the inadequacy of the legislation has been the hurry in which it was passed by the parliament and it is also a fact that sufficient time was not given for public debate.

2. “Cyberlaws, in their very preamble and aim, state that they are targeted at aiding e-commerce, and are not meant to regulate cybercrime”(6) –

 Mr. Pavan Duggal holds the opinion that the main intention of the legislators has been to provide for a law to regulate the e-commerce and with that aim the I.T.Act 2000 was passed, which also is one of the reasons for its inadequacy to deal with cases of cyber crime.

At this point I would like to express my respectful dissent with Mr. Duggal. I feel that the above statement by Mr. Duggal is not fundamentally correct. The reason being that the preamble does state that the Act aims at legalising e-commerce. However it does not stop here. It further amends the I.P.C., Evidence Act, Banker’s Book Evidence and RBI Act also. The Act also aims to deal with all matters connected therewith or incidental thereto.  It is a cardinal rule of interpretation that “text should be read as a whole to gather the meaning”. It seems that the above statement has been made in total disregard of this rule of interpretation. The preamble, if read as a whole, makes it very clear that the Act equally aims at legalising e-commerce and to curb any offences arising there from.

3.Cyber torts-

 The recent cases including Cyber stalking cyber harassment, cyber nuisance, and cyber defamation have shown that the I.T.Act 2000 has not dealt with those offences. Further it is also contended that in future new forms of cyber crime will emerge which even need to be   taken care of. Therefore India should sign the cyber crime convention. However the I.T.Act 2000 read with the Penal Code is capable of dealing with these felonies.

4.Cyber crime in the Act is neither comprehensive nor exhaustive-

 Mr. Duggal believes that we need dedicated legislation on cyber crime that can supplement the Indian Penal Code. The contemporary view is held by Mr. Prathamesh Popat who has stated- “The IT Act, 2000 is not comprehensive enough and doesn’t even define the term ‘cyber crime”. (8) Mr. Duggal has further commented, “India, as a nation, has to cope with an urgent need to regulate and punish those committing cyber crimes, but with no specific provisions to do so. Supporters of the Indian Penal Code School vehemently argue that IPC has stood the test of time and that it is not necessary to incorporate any special laws on cyber crime. This is because it is debated by them that the IPC alone is sufficient for all kinds of crime. However, in practical terms, the argument does not have appropriate backing. It has to be distinctly understood that cyber crime and cyberspace are completely new whelms, where numerous new possibilities and opportunities emerge by the day in the form of new kinds of crimes.”(6)                                                    

 I feel that a new legislation on cyber crime is totally unwarranted. The reason is that the new legislation not come alone but will bring with it the same confusion, the same dissatisfaction and the same desire to supplant it by further new legislation. Mr. Duggal has stated above the need to supplement IPC by a new legislation. If that is the issue then the present legislation along with the Penal Code when read harmoniously and co- jointly is sufficient to deal with the present problems of cyber crime. Further there are other legislations to deal with the intellectual property crimes on the cyber space such as the Patents Act, Copy Right Act, Trade Marks Act.

5.Ambiguity in the definitions-

 The definition of hacking provided in section 66 of the Act is very wide and capable of misapplication. There is every possibility of this section being misapplied and in fact the Delhi court has misapplied it. The infamous go2nextjob has made it very clear that what may be the fate of a person who is booked under section 66 or the constant threat under which the netizens are till s. 66 exists in its present form.

Further section 67 is also vague to certain extent. It is difficult to define the term lascivious information or obscene pornographic informa­tion.  Further our inability to deal with the cases of cyber pornography has been proved by the Bal Bharati case.    

6. Uniform law-  

  Mr. Vinod Kumar (9) holds the opinion that the need of the hour is a worldwide uniform cyber law to combat cyber crime. Cyber crime is a global phenomenon and therefore the initiative to fight it should come from the same level. E.g. the author of the love bug virus was appreciated by his countrymen.

7.Lack of awareness-

One important reason that the Act of 2000 is not achieving complete success is the lack of awareness among the s about their rights. Further most of the cases are going unreported. If the people are vigilant about their rights the law definitely protects their right. E.g. the Delhi high court in October 2002 prevented a person from selling Microsoft pirated software over an auction site. Achievement was also made in the case before the court of metropolitan magistrate Delhi wherein a person was convicted for online cheating by buying Sony products using a stolen credit card. (17)

8. Jurisdiction issues-

  Jurisdiction is also one of the debatable issues in the cases of cyber crime due to the very universal nature of cyber space. With the ever-growing arms of cyber space the territorial concept seems to vanish. New methods of dispute resolution should give way to the conventional  methods. The Act of 2000 is very silent on these issues.

9. Extra territorial application-

Though S.75 provides for extra-territorial operations of this law, but they could be meaningful only when backed with provisions recognizing orders and warrants for Information issued by competent authorities outside their jurisdiction and measure for cooperation for exchange of material and evidence of computer crimes between law enforcement agencies.

10. Raising a cyber army-

By using the word ‘cyber army’ by no means I want to convey the idea of virtual army, rather I am laying emphasis on the need for a well equipped task force to deal with the new trends of hi tech crime. The government has taken a leap in this direction by constituting cyber crime cells in all metropolitan and other important cities. Further the establishment of the Cyber Crime Investigation Cell (CCIC) of the Central Bureau of Investigation (CBI) 11) is definitely a welcome step in this direction. There are man cases in which the C.B.I has achieved success. The present position of cases of cyber crime (17) is –

Case 1: When a woman at an MNC started receiving obscene calls, CBI found her colleague had posted her personal details on Mumbaidating.com.

Status: Probe on

Case 2: CBI arrested a man from UP, Mohammed Feroz, who placed ads offering jobs in Germany. He talked to applicants via e-mail and asked them to deposit money in his bank account in Delhi.

Status: Chargesheet not filed

Case 3: The official web-site of the Central Board of Direct Taxes was hacked last year. As Pakistan-based hackers were responsible, authorities there were informed through Interpol.

Status: Pak not cooperating.

11. Cyber savvy bench-

Cyber savvy judges are the need of the day. Judiciary plays a vital role in shaping the enactment according to the order of the day. One such stage, which needs appreciation, is the P.I.L., which the Kerela High Court has accepted through an email. The role of the judges in today’s word may be gathered by the statement- judges carve ‘law is’ to ‘law ought to be’. Mr T.K.Vishwanathan, member secretary, Law Commission , has highlighted  the requirements for introducing e-courts in India. In his article published in The Hindu he has stated “if there is one area of Governance where IT can make a huge difference to Indian public is in the Judicial System”.

12. Dynamic form of cyber crime-

  Speaking on the dynamic nature of cyber crime FBI Director Louis Freeh has said, “In short, even though we have markedly improved our capabilities to fight cyber intrusions the problem is growing even faster and we are falling further behind.”  The (de)creativity of human mind cannot be checked by any law. Thus the only way out is the liberal construction while applying the statutory provisions to cyber crime cases.

13. Hesitation to report offences-

  As stated above one of the fatal drawbacks of the Act has been the cases going unreported. One obvious reason is the non-cooperative police force. This was proved by the Delhi time theft case. “The police are a powerful force today which can play an instrumental role in preventing cybercrime. At the same time, it can also end up wielding the rod and harassing innocent s, preventing them from going about their normal cyber business.”(10) This attitude of the administration is also revelled by incident that took place at Merrut  and Belgam. (for the facts of these incidents refer to naavi.com). For complete realisation of the provisions of this Act a cooperative police force is require.

PREVENTION OF CYBER CRIME:

 Prevention is always better than cure. It is always better to take certain precaution while operating the net. A  should make them his part of cyber life. Saileshkumar Zarkar, technical advisor and network security consultant to the Mumbai Police Cyber crime Cell, advocates the 5P mantra for online security: Precaution, Prevention, Protection, Preservation and Perseverance.  A netizen should keep in mind the following things-

1.to prevent cyber stalking avoid disclosing any information pertaining to oneself. This is as good as disclosing your identity to strangers in public place.

2.always avoid sending any photograph online particularly to strangers and chat friends as there have been incidents of misuse of the photographs.

3.always use latest and up date anti virus software to guard against virus attacks.

4.always keep back up volumes so that one may not suffer data loss in case of virus contamination

5.never send your credit card number to any site that is not secured, to guard against frauds.

6.always keep a watch on the sites that your children are accessing to prevent any kind of harassment or depravation in children.

7.it is better to use a security programme that gives control over the cookies and send information back to the site as leaving the cookies unguarded might prove fatal.

8.web site owners should watch traffic and check any irregularity on the site. Putting host-based intrusion detection devices on servers may do this.

9.use of firewalls may be beneficial.

10. web servers running public sites must be physically separate protected from internal corporate network.

Adjudication of a Cyber Crime – On the directions of the Bombay High Court the Central Government has by a notification dated 25.03.03 has decided that the Secretary to the Information Technology Department in each state by designation would be appointed as the AO for each state.

CONCLUSION:

Capacity of human mind is unfathomable. It is not possible to eliminate cyber crime from the cyber space. It is quite possible to check them. History is the witness that no legislation has succeeded in totally eliminating crime from the globe. The only possible step is to make people aware of their rights and duties (to report crime as a collective duty towards the society) and further making the application of the laws more stringent to check crime. Undoubtedly the Act is a historical step in the cyber world. Further I all together do not deny that there is a need to bring changes in the Information Technology Act to make it more effective to combat cyber crime. I would conclude with a word of caution for the pro-legislation school that it should be kept in mind that the provisions of the cyber law are not made so stringent that it may retard the growth of the industry and prove to be counter-productive.

Press Council of India

Introduction

–        Self control is best form of control. Any law needs to be drafted with the utmost care, but it might still, in some way, act as a transgression on freedom of the Press.

–        Most countries have opted for press related self-regulated organizations, similar to a press council

–        Sweden had the first press council called the ‘Court of Honor’ set up in 1916; today 40 other nations have similar bodies.

–        It is a statutory body in India, with legal powers, but no punitive powers.

History

–        Firts Press Commission (created in 1952) submitted report in 1954 on how a self regulatory press council should be set up.

–        Press Council Act was passed in 1965 and first press council came in 1966

–        During emergency it was repealed (1976) and a fresh act was passed and enacted under Janta Dal government in 1978.

Structure

–        A chairman (Ex chief justice, tenure of max 3 years, can be nominated twice at max) with 28 other members

–        6 editors

–        7 journalists from Indian language

–        6 owners/managers of newspaper

–        1 among managers of news agencies

–        3 members from the Lok Sabha and 2 from the Rajya Sabha

–        3 members from eminent professionals from legal, literary or cultural fields like from the Sahitya Academy or the Bar Council of India.

–        Current Chairman: Chandramauli Kumar Prasad

Objectives and Functions

–        Twin fold objective: Preserve freedom of press and maintain and improve standards of newspapers and agencies.

–        A central objective was also to prepare a code of conduct or ethics for journalists to prevent publication of articles that may not be punishable by law but are offensive or objectionable in the eyes of society. The first set of principles was created in 1983. These were further amended in 1992, and constantly get updated as journalism changes through the times.

Powers

–        It is a statutory, quasi-judicial body that can take decisions and reprimand, but cannot sentence or punish.

–        It doesn’t deal with electronic media, that is the job of the NBSA (National Broadcasting Standards Authority)

–        ‘Toothless tiger’

–        Doesn’t have punitive powers (refused after being offered multiple times) (If a newspaper is censured twice within 3 yrs, it should be forwarded to the cabinet secretary of central govt. and chief sect. of state concerned and they can take any action considered appropriate by them)

–        Powers of a civil court

–        Can’t take case when subjudice.

–        It’s a moral body

–        The Council is funded by revenue collected by it as fees levied on the registered newspapers in the country on the basis of their circulation. No fee is levied on newspapers with a circulation of less than 5000 copies.

Procedure

–        The issue must first be taken up with the concerned journalist or editor; if not solved satisfactorily, then approach the council.

–        Write a letter stating why the article is objectionable, attach the original/Photostat of the article, and the letter to the editor and any response he may have given

–        File declaration stating that this matter is not pending in any court of law

–        Once a complaint is received, chairman has to decide if he takes it into consideration, can also be rejected.

–        Complaint along with documents are sent to respondent for his comments

–        After a reply is received it is forwarded to complainant.

–        Issue is placed before inquiry committee presided by chairman for adjudication and parties are called for argument and production of evidence.

–        The council then takes a decision and can warn, admonish or censure the publication if it deems its subject matter to be objectionable.

Matters that can go to the PCI

–        False arrest or detention of journalists

–        Police inaction on complaints by journalists

–        Cancellation or suspension of accreditation

–        Withholding of newsprint quota

–        Using offensive or abusive language, writing defamatory comments, publishing unverified reports, intrusion of privacy.

Code of Conduct for Journalists

·       Accuracy and fairness

·       Verification before publication

·       Caution against defamatory writings

·       Respect for the Right to Privacy

·       Caution against identification

·       Recording interviews or phone conversations

·       Non-indulgence in suggestive guilt (guilt through association)

·       Reporting legislative proceedings

·       Non-reportage of anything being expunged (deleted comments)

·       Straight reporting of court proceedings

·       Cannot report matters that are subjudice

·       In case of factual errors, a proper corrigendum or apology has to be published

Contempt of court

Journalists report and investigate crimes and cases like abuse of power. Readers are also keen on knowing about these and they believe printed material to be credible. But when a case is subjudice, journalist has to be extremely careful of what he is reporting. Hence, it is important for journalists to understand court or legal reporting/writing. In the absence of such knowledge, a journalist could end up committing what is known as contempt of court. Even the facts and evidences regarding the case have to be printed only after permission from the court. The judgment pronounced by the court can be criticized but judge personally shouldn’t be criticized. CoC case can be initiated within only 1 year of occurrence.

History

–        Act codified in 1926 on lines of English common law

–        After independence, constitution admitted this act under reasonable restriction under 19(2).

–        Act of 1926 replaced in 1952 again replaced in 1960 due to multiple inadequacies.

–        Sanyal committee finally redrafted bill which was enacted in 1971.

Types of CoC

–        Civil: Willful disobedience of any judgment, decree, description, order, writ or other processes of court or willful breach of any undertaking by court.

–        Criminal: Publication whether by words spoken or written or signs or otherwise of any matter or the doing of any other act whatsoever which (i) scandalizes, lowers the authority of any court and prejudices or tends to interfere in any kind of judicial proceedings  or (ii) tends to obstruct administration of justice in any other manner. Generally press is involved in this type of contempt.

The courts allow fair and accurate report of its proceedings. But an in camera trial is held secretly and is not open to public or journalists. Comments of any kind are not permitted when a trial is in progress. The duty of a journalist is to report cases and not to comment or criticize or adjudicate. Writing about court proceedings where a judge has prohibited doing so amounts to contempt. However, any fair comment on the merits of the case which has been fully heard and a decision given does not amount to contempt.

The Press enjoys immunity from contempt during the investigation of the case by the police. But when a magistrate/judge starts hearing the case, the matter becomes subjudice (i.e. pending before the court) and a journalist can report only the news part.

CoC is there to protect judiciary from unwarranted allegations and not to safeguard corrupt judges.

Contempt of court may attract six months imprisonment or a fine of Rs 2000 or both. However, courts can reduce the punishment or could let off a person if he apologizes to the court. In case of civil contempt, the court could award an imprisonment term of upto six months in a civil prison if it feels that a fine is not enough. A person convicted in a contempt case can appeal in a high court within 30 days and within 60 days to a supreme court.

Defamation

Introduction

Defamation is a statement made by one person which is untrue and may be injurious to another man’s reputation causing shame, ridicule or financial loss to the defamed person. In other words, defamation is a deliberate attempt made in order to harm another person’s reputation or obstruct the way he carries out his professional and personal life. Journalists and media persons often become victims of this section. A media person has greater responsibility while publishing and circulating potentially sensitive subject matter because he has more reach. If it’s deliberate, harsher punishment is given. But if accused promptly publishes a contradiction as desired by complainant, he may be dealt with leniently in the eye of law.

Knowledge of the defamation laws is essential for every journalist and publisher of newspapers because an aggrieved person can take up a civil as well as criminal course of action.  Civil law of defamation has not been codified in India therefore civil action against defamation is based on common law subject to statutory exception.

Until and unless the imputation directly/indirectly lowers the moral or intellectual character of a person, it is not defamation.

Libel and Slander

Publication in permanent form aka the written form (books, leaflets, newspapers) is libel and when in audio/visual form, it’s slander. In India, there is no marked difference between the two of them, at least, not legally. Both of them come under section 499 of the IPC.

Defamation and CoC

If an attack or objectionable comment is made about one judge in particular, it does amount to defamation. However, when the same is done to judges in general, it could just amount to Contempt of Court.

IPC Section 499 talks about defamation and what all comes under it and IPC section 500 talks about the punishment to be meted out. A simple imprisonment of upto 2 yrs and/or fine is what is given, especially in criminal defamation cases. Civil defamation cases can ultimately slide if a retraction or contradiction or corrigendum is published. Section 501 & 502 say that printing or engraving or sale of defamatory matter is also similarly punishable.

There are some exceptions to the Defamation sections as mentioned in the IPC. These exceptions are:-

a)     It is not defamation to impute anything TRUE considering any person in the interest of public good.

b)     It is not defamation to express in good faith any opinion regarding a public servant in the discharge of his duties or his character, so long as the opinion remains confined to that conduct itself.

c)     It is not defamation to express in good faith any opinion regarding a person touching upon a public question or his character, so long as the opinion remains confined to that conduct itself.

d)     It is not defamation to publish a substantially true report of court proceedings or the result of a court proceeding, so long as it contains no comments and is substantially true.

e)     It is not defamation to express in good faith any opinion regarding the merits of civil or criminal case, decided by a court of justice.

f)      It is not defamation to express in good faith any opinion regarding any performance which has been submitted to the judgment of the public or regarding the character of the author, so far as the character appears in such performance, and no further. This essentially is what saves reviewers and critics from the tag of ‘defamation’.

g)     It is not defamation if a person having authority over another, either conferred by law or arising out of a lawful contract, passes in good faith, any censure on the conduct of that person.

h)     It is not defamation to accuse a public authority or prefer someone’s accusation of a public authority in good faith.

i)      It is not defamation to make an imputation on the reputation of another, provided that it be made in good faith or that it be to protect the interests of the person making it, someone else or public good.

j)      It is not defamation to provide caution in good faith to another person, provided that it is in the interest of the person it is conveyed to, some other person or public good.

There are four major journalistic defenses against defamation. These are:-

a)     Justification: The fact that the accusation or imputation made is true. However, if it is not done for public good, it can still be shot down.

b)     Fair comment: The fact that whatever comment or imputation has been made has been made in good faith and in the interest of public good.

c)     Privilege: It’s immunity conferred by law for protection of public interest. It is of two kinds – (i) Absolute privilege is provided for the publishing of substantially true reports about anything said by MPs or MLAs or others during parliamentary proceedings or state legislature proceedings. (ii) Qualified privilege is for reports (substantially true without comment) of court proceedings, state affairs and public meetings.

d)     Apology: Expression of regret expressed publicly or in writing.

Public Order

The sections in this provision relate to disrupting the balance of peace in society and inciting or instigating violence or tensions between different groups. The sections of the IPC relating to public order are as follows:-

–        Section 153A: This section essentially states that promoting enmity or hatred or inciting or instigating violence or causing general tension between two groups based on religion, race, class, place of birth, residence, language etc. through any sort of statement, sign, representation or write-up that disrupts the general balance of peace and harmony is punishable by law. An example could be a few Gujarati newspapers constantly egging on the Gujarat riots, or newspapers like ‘Swatantra Bharat’ in UP during the 1992 Babri Masjid episode. It is punishable by upto 3 years of imprisonment and/or a fine. If this is done in a place of worship, it could lead to 5 years of imprisonment.

–        Section 153B: This section states that any statement, write-up, sign or anything else against any group based on their religion, race, class, caste (yada yada yada) that denies them their rights as citizens of India or prevents or admonishes them from benefitting from the Constitution of India is punishable by law. An example could be ‘Saamna’ publishing something similar about Muslims being sent back to Pakistan quite a few years ago (it’s vague, I know). Essentially, saying something like ‘Hindus shouldn’t get holidays for Eid’ is liable to be punished under this section. It is punishable by upto 3 years of imprisonment and/or a fine. In extreme cases, it could lead to 5 years of imprisonment.

–        Section 295A: This section becomes a little more specific, saying that any statement, representation, sign, write-up or something else that is used to hurt or harm someone’s religious beliefs or sentiments or tries to attack someone’s religion is punishable by law. Any sort of attack against Muslims, per se, would classify under this section. It is punishable by upto 3 years of imprisonment and/or a fine. In extreme cases, it could lead to 5 years of imprisonment.

–        Section 505: (Clarify first) Any statement or publication of material or circulation of information that can lead to a breakdown in public order or incite violence or riots between two groups based on religion, caste, race (yada yada yada), to the point that it counts as public mischief is punishable by law. It is punishable by upto 3 years of imprisonment and/or a fine. In extreme cases, it could lead to 5 years of imprisonment.

Sedition

This section refers to what is called as sedition, which means going against the established institution i.e. the Government or Constitution of India. Sedition means inciting discontent or rebellion against the government. It also means treason or any action, especially in speech or writing, promoting such discontent or rebellion. Words, either spoken or written, or signs, or visible representation, or bringing or attempting to bring into hatred or contempt, or exciting or attempting to excite disaffection towards the Government established by law in India. So, essentially it is a revolt or mutiny against a nation. Sedition is covered under Section 124A of the IPC.

The concept of ‘sedition’ was something that was used frequently and manipulatively by the British in an attempt to imprison and restrict as many freedom fighters as they could in order to curb the freedom struggle. It is used a lot more carefully now, considering how grave of a crime it is considered to be.

Punishment: The punishment for sedition could range from a simple fine or three years in prison to life imprisonment. The concept of ‘sedition’ involving going against the state is something that is considered a grave offense, and is, therefore, given very serious punishment that could even lead to the person spending years on end in a jail cell. The expression “disaffection” includes disloyalty and all feelings of enmity.

For example, during the Mumbai riots in 1993, actor Sanjay Dutt was charged under this section for “waging a war against the nation and for treason.” Another example could be of Aseem Trivedi, who was booked under 124A for his cartoons that criticized the government on the India Against Corruption website. Kanhaiya Kumar, the JNU student, was also booked for sedition for his anti-India slogan chanting outside his university.

Obscenity

These sections of the Indian Penal Code refer to ‘obscenity’. Basically, section 292 states that the hiring, selling, distributing, making, producing, displaying or even possession of any obscene book, pamphlet, paper, writing, picture, drawing, painting, representation or whatsoever material is punishable by law. It also states that even advertising or making profits from such a business or even aiding in any of these other activities with obscene objects is liable to be punished. There are a few exceptions to this section however:-

(a)   Any material that was created for public good or in the interest of literature, science or art OR used for bona fide religious purposes.

(b)   Any representation sculptured, painted, engraved or otherwise that is displayed or used as a part of a monument or historical site OR used in places of worship or religious places.

The punishment for a first time conviction under 292 could be an imprisonment of upto two years with a fine as high as 2000. A second or third or further conviction could lead to a five year prison sentence with a 5000 fine.

For example, selling pornographic books or movies is considered obscenity. However, creating a nude painting inspired by ancient Greek statues would be considered art and, therefore, not count as ‘obscene’.

Section 293 is an extension of Section 292, which states that the sale, distribution or circulation of obscene materials to young people i.e. those under the age of 20. Sentencing is a little more serious, with first conviction garnering you a 3-year prison stint with a 2000 fine, while a second or subsequent conviction would give you a 7-year prison sentence with a fine upto 5000.

Working Journalists Act 1955

This Act was brought into effect as a welfare measure for the working journalists (not freelancers or stringers). It regulates the service conditions of the people/employees of the newspaper industry.

Its provisions relate mainly to:

1)     Cases of retrenchment (retrenchment means removal of employees from service).

2)     Payment of gratuity or pension

3)     Hours of work (a working journalists under the act has to put in a minimum of 6.5 hours of shift)

4)     Leave (privileged, casual, medical, maternity, special etc)

5)     Fixation of revision of rates of wages

6)     Enforcement of wage board recommendations (pay scales of working journalists are decided by a wage board which consists of a) Three persons representing employers in relation to newspaper establishments b) Three persons representing working journalists c) Four independent persons, one of whom shall be a person who is or has been a judge of High court or Supreme court and appointed by the Government as the Chairman, the other three being from labor unions.)

7)     Employees provident fund

8)     Recovery of money due from employees. (Money taken by the employee as loan, credit or advance)

Despite the implementation of the Act, the conditions of journalists remained pitiful well into the 1980s. They were not provided with many basic facilities in their offices, lacked means of transportation, possessed irregular hours and lacked any other sort of privilege. Plus, their wages were pretty low, and each wage revision by the Wage Board would take so long that it took protests and strikes by these journalists to get something done. So, by the 90s, the employers’ took it upon themselves and instituted a contractual system of employment.

Under the Act, the journalist enjoys job security. But the employers/owners want to hire and fire journalists at will. This becomes easy under the contract system where all terms and conditions of the job are decided on various factors like the importance of the journalist, his indispensability etc. The duration of employment, designation and revision of wages are all decided on a case-to-case basis. A journalist usually draws higher wages under the contract system but his job security is always under threat, as under this system, the contract can be terminated on either side with a three or one month notice (as the case may be). Most journalist organizations are opposed to the contract system because of this reason. Besides, under the contract system, a journalist puts in long hours endangering his health. Thus under the contract system, a journalists working conditions – especially those relating to his job welfare – are not and cannot be regulated. And they end up giving up security for flexibility.

Despite this uncertainty, most newspapers in metros have abandoned the Working Journalists Act and utilize the contractual system. Many smaller and medium newspapers have also taken up contractual employment, putting a question mark on the success of the Working Journalists Act.

Indian Evidence Act 1872

The Indian Evidence Act declares and details what is considered ‘evidence’ in a court of law. It was an Act passed by the British which they considered ‘path breaking’. Evidence essentially means ‘proof’. But according to the Act, the evidence can be defined in terms of it being oral or documented or in various other forms. The following are the different kinds of evidence:-

a)     Oral: Any sort of evidence which the court permits or requires to be made before it by an eyewitness. Simply put, any sort of direct evidence that is related orally. This evidence needs to be provided as a direct account by the witness.

b)     Documentary: Any sort of evidence which is provided in the form of documentary proof. While this usually is assumed to mean papers, bills, contracts and other documents, it also includes photographs, videos, tape recordings and other documented evidence. It must, however, be authenticated.

c)     Real: Any evidence that can be produced as a physical or material entity, as a tangible object.

d)     Direct: Any evidence that comes from the witness’s direct involvement with his/her account. For example, if the witness says it rained because he/she was out during it and got wet, it counts as direct evidence. This evidence can be strongly used to determine a person’s guilt or innocence without doubt.

e)     Circumstantial: Any sort of evidence or account or circumstance which would lead to the inference of another critical fact which could be used to infer guilt or innocence. For example, if the witness says it was raining because he/she saw their children get home all wet and dripping, it can be used to reasonably infer that it was raining and the witness is correct.

f)      Hearsay: Something that you hear or perceive that doesn’t necessarily stand on its own as strong evidence. For example, you believe that two people were in an abusive relationship because of what the wife told you about her husband and how he beat her up. While this may be true, since you are only hearing it from her lips and not witnessing it firsthand, it doesn’t stand as concrete evidence.

g)     Corroborative: Any evidence that is corroborated or backed up certain facts or objects to prove its validity.

h)     Substantive: Any evidence that stands on its own as fact.

There are primarily two types of evidence – (i) Primary evidence, which means the original document itself which is produced for the court and (ii) Secondary evidence, which includes copies of that document.

Confessions can be taken as evidence as well. A (i) Judicial confession, which is made in front of a magistrate, is taken as binding and strong clinching proof, whether it be the statement of a victim or the confession of a suspect. However (ii) Extra-judicial confessions, which is made in another setting, usually a police station, is taken with a pinch of salt, since it could be extracted with the help of coercion, torture, punishment or incentive. Any confession acquired through these means, whether judicial or extra-judicial, is taken to be irrelevant. Another clinching piece of evidence is a dying declaration, whether made by a witness or a victim, whether verbal or written, about the reason or factors behind his/her death.

Press and Registration of Books Act 1867

This Act was introduced as a means to regulate and register any sort of publication that takes place in India. There are thousands of newspapers being published in India, and that doesn’t even take into account all the books as well. In order to be able to maintain an organized record of all of these to make sure that no objectionable material make the shelves of the Indian markets, the Press and Registration of Books Act was introduced, which ensured that before publication of any material, an individual had to make a declaration with the intent of publishing to a district or sub-divisional magistrate. However, this Act just doesn’t extend to books or newspapers, it also extends to the printing presses of such newspapers, which need to be registered.

There are some details that must be kept in mind while registering yourselves under the Act, which include the following:-

(i)              Every book or paper printed should have (legibly) on it the name of the printer and the publisher and the location of printing and publishing

(ii)            If the location of the printing press has changed, a declaration has to be filed for it.

(iii)          The name of the owner must also be legibly printed on the publication.

(iv)           The declaration must include the title, language, periodicity, owner and publisher of the publication.

(v)             Any change in the title, language or the periodicity of the publication needs to be notified with a new declaration.

(vi)           Name of the editor should be printed clearly on top of the newspaper.

(vii)         A declaration has to be made with every ownership change.

(viii)       If the newspaper has ceased publication for more than 12 months, a new declaration has to be made before re-publication.

(ix)           If the person declaring is not satisfied with the response of the magistrate or hasn’t received a response, he can approach an Appellate Board to look into the matter.

The punishment for not registering the printing, editing or publishing of a newspaper can be charged with a fine of max 2000 and an imprisonment of upto 6 months. Any person ceasing to be a printer or publisher and failing to make a declaration can be charged with a fine of maximum 200.

The newspapers are supposed to be registered with the Registrar of Newspapers for India i.e. the RNI. The RNI shall maintain a register with all the details of the publication and, after approving, will provide a certificate of registration once a publication starts publishing. All newspapers need to furnish their details with the RNI. Non-compliance with the provisions of the RNI or publishing incorrect particulars could lead to a fine of max 500.

Copyright Act 1957

‘Copyright’, in its essential definition, differs from ‘intellectual property’. Intellectual property is the ideas and information in applied form which is of commercial value. It is of four kinds – (i) Patents (ii) Copyright (iii) Trademarks and (iv) Others like trade secrets, industrial designs etc.

Copyright is the exclusive legal right of a person to reproduce, publish and sell a matter or form of a literary, musical or artistic creative work.

Indian Copyright Act was first passed in 1847. It was then combined with the English Copyright Act, and then was released as a full-fledged standalone Act in 1957. It is one of the oldest surviving Acts in the country, although it has been amended several times to meet the needs of the current generations. Copyright in India is available to individuals over the duration of their lifetimes and then 60 years beyond it. To register for copyright, the creative work needs to be registered before the Copyright Board.

The Act has two essential things:-

(i)              Protection of copyright is afforded to the expression of the idea or the original form of expression, not the original idea itself. An idea which gets protection in the form of a novel or drama may not get that protection as a painting or music.

(ii)            This law aims against the infringer and copyright will only be infringed if the author of the infringed matter copies the material protected.

It is only considered copyright infringement if the infringed matter copies or steals from another. It, therefore, will not be copyright infringement if the person has produced his own reproduction of another creative work without knowledge of any prior work or copy or extract of it to have existed. For example, if I produce a song that sounds very similar to another one, but I never knew the other song existed to begin with, let alone steal from it, my song would not count as copyright infringement. Similarly, there is the concept of ‘innocent infringement’, where someone has reproduced or replicated an already existing work without knowing that a copyright existed on it. The punishment would be less severe in such a case.

According to section 14 of the Act, a person who has a copyright on such work, alone has the right to allow:-

–        Reproduce the work in part or in full

–        To publish the work

–        To make an adaptation of his work

Certain acts are not infringement of copyrights, such as:-

–        A fair dealing with literary, dramatic, musical or artistic work OR

–        Adaptation of a computer program for private use by a lawful processor OR

–        Reviews, criticisms, research

etc.

Awareness of the concept of copyright has always been a problem. Indians don’t protect their rights over their own intellectual creations as fiercely as westerners do, which probably explains why there are so many copies and dupes of western TV shows and movies in India, while they themselves are duking it out over million dollar copyright settlements. The copyright Act does require constant amendments, with a recent one covering audio and video cassettes, computer programs and codes, television rights etc. With the digitization of modern society, it has become much easier to copy an original form of work and reproduce it for one’s own commercial gain in another part of the world. And this could end up being so stealthy that many a times, this would go completely unnoticed. With computers and the internet, it has become exponentially simpler to access such material online. With that access comes the ease of duplication. Simply downloading a video from YouTube and extracting the audio can make it easy for someone to manipulate it and create a whole new similar sounding musical track. A lot of times, these do lead to very hefty lawsuits over royalties. But often, they go completely unnoticed, with similarities just chalked up to ‘exhaustion of options’. While copyright laws are being constantly updated to combat such problems, it needs to be pretty fast to catch up with the changing times.

Information Technology Act 2000

The Information Technology Act (also known as the IT Act) of 2000 is an Act passed by the Parliament of India that deals with and governs cyber laws and e-commerce in India. It is the primary law in the country dealing with computers and the regulation of network usage.

This Act provides the legal framework for electronic governance. It also prescribes the different cyber crimes and the punishments for them. It applies to any citizen of the country, and can also apply to persons outside India who use a computer or network resource within the country. It also established a Cyber Appellate Tribunal to deal with issues arising out of the Act. It also created amendments in various other established Acts like the Indian Penal Code, the Reserve Bank of India Act, the Indian Evidence Act and the Bankers Book Evidence Act (to name a few) in order to make them compliant with the new technology they would be using.

There have been various amendments made to this Act. The most well-known and controversial of those were in 2008, which added Section 66, particularly Section 66A. This section states that the sending of any offensive, menacing or false messages via the computer or a network resource that are meant to create ill-will, enmity, harm etc or any messages that try to mislead the receiver of its origin is punishable by law. Sections 66B-66F also introduced other concepts such as cyber-terrorism and hacking, while the amendment also introduced Section 67 (electronic information that is considered obscene such as images of sexual acts (67A) and child pornography (67B)) and Section 69 (which gave the authority the right to decrypt, intercept or read the flow of information between computer or network resources). It is punishable by 3 years of prison with a fine.

Section 66A received significant criticism when it was added to the Act. Critics argued that the amendment denied people their right to freedom of speech and expression, and that something like ‘offensive’ or ‘insulting’ is too vague a term to describe what could not be said under this section. This issue popped up several times during the arrest of Aseem Trivedi for his cartoons, or when two schoolgirls were arrested for their post about the Mumbai bandh on Bal Thackeray’s death.

Ultimately, in 2013, during the Shreya Singhal vs Supreme Court case, the SC deemed section 66A as ‘unconstitutional’ and repealed it. This decision was praised by many as a means to preserve the Fundamental Right and Article 19 (1) which guarantees us our freedom of speech and expression. However, it does mean that there is now more allowance for the sending and spread of messages that do offend and can be detrimental to public order or certain individuals or societies. While there are other laws that cover such things, with the constant development of technology, it becomes harder for those Acts to keep up.

Official Secrets Act 1923

The Official Secrets Act was enacted during British rule in 1923, and was, at that time, vital for preventing the flow of information to enemy states.

The Official Secrets Act states that passage of any information that is considered sensitive or confidential or ‘secret’ by the State to any sort of enemy nation, or any other nation or entity, is punishable by law. This could include official codes, research papers, plans and blueprints, documents or anything else considered to be of high importance by the State. The disclosure of any information that is likely to affect adversely the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States, is punishable by this act.

Punishments under this Act can range from 3 to 14 years in jail, depending upon the severity or the gravity of the crime. Even if someone passes on such information unintentionally, with no motive to harm the security of the State, he is still liable to be punished, albeit less severely.

If a company is found to be guilty under this Act, then everyone involved with the management, including the BOD, can be punished. If a newspaper is found guilty, then the journalist, editor and proprietor can all be punished. In certain cases, courts have the right to bar journalists from covering certain court proceedings if they deem the information ‘too sensitive’.

A major problem with the OSA is its conflict with the Right to Information Act. The Right to Information Act states that any such information that is under the helm of a public authority is accessible to the public, unless it is highly classified or extremely relevant to national security. The Official Secrets Act is very strong and has always come under criticism since it is against the principles of transparent governance. There is no legal definition of what is considered an ‘official secret’, which makes it easier for the government to refuse access to particular documents under the RTI by marking them ‘confidential’. Technically, the RTI does allow access to such documents, and that has created a veritable conflict between the two acts. In public debate and according to various journalists and lawmakers, the RTI should logically prevail as it helps move our government to a greater stage of transparency and helps the public maintain more trust in their elected representatives. That would make it compulsory for all government departments to make all (except the most sensitive information) information public. This would compel them to take better care of their official records and speed up the introduction of e-governance in all areas of public life.

Whistle Blowers Protection Act 2011

The Whistle Blowers Act is an Act which provides the mechanism to investigate alleged corruption and misuse of power by public servants and government authorities. It also protects anyone who exposes such alleged wrongdoing in government bodies, projects and offices. This wrongdoing might include fraud, corruption, mismanagement or shoddy work.

Essentially, the purpose of this Act is to encourage people to come forward with their complaints exposing any sort of wrong illegal activities taking place in government offices or being done by government officials. To further encourage them, the Act also protects their identity in order to ensure their safety. These people are termed as ‘whistle blowers’.

Every such complaint must be registered with the State or Central Vigilance Commission. While the name of the complainant must be provided at the time of lodging the complaint, from thereon, the identity of the complainant will be protected. The Act also provides for punishments for someone knowingly registering false or frivolous complaints.

This Act came about as a result of a multitude of cases of harassment and even torture of people who came forward with damaging information about government departments. For example, Satyendra Dubey, an engineer, was murdered in 2003 because he blew the whistle in a corruption case in the NHAI Golden Quadrilateral project. A similar fate also awaited Shanmughan Manjunath, an Indian Oil Corporation officer who was murdered for sealing off a petrol pump that was selling adulterated fuel.

Now while this Act has received praise for its encouragement of people who blow the lids off of major corruption and embezzlement scams, it has received criticism for failure to provide protection to whistle blowers beyond non-disclosure of identity. It also received significant criticism for extending only to the government sector and employees working for the government of India, ruling out state government employees and corporate whistleblowers. This is a strange omission after cases such as the Satyam scam and the Sahara scam. If enacted properly, this Act can help reduce corruption and wrongdoing in government departments, and can hopefully reduce the reluctance of people to come forward in such a manner in fear of retaliation.

Freedom of the Press (with somewhat of an evolution and history)

The Freedom of the Press is something that Indian journalists and media representatives have struggled long and hard for over the years. It has taken hundreds and hundreds of years for India to attain a state even close to relative freedom of the press.

During the British rule, reasonable restrictions were imposed on the press in order to curb them from spreading or propagating any sort of information that could be detrimental to their rule over the country. At a time when the need for freedom was burgeoning, the early 19th century saw a boom in the press, especially a boom in newspapers that were willing to challenge British ideology and propagate ideas of freedom and self-rule. The British sought to take these notions to task and imposed various Acts, one of the very first of those being the Press and Registration of Books Act of 1867. This Act made it compulsory for any individual looking to start a publication or publish a book to make a declaration stating the intent of publication and declaring all the people involved, even the printing press. Journalists were frequently thrown in jail and newspapers were shut down for going against British rule. After the revolts started to grow, the British imposed the Vernacular Press Act of 1878, which was able to slow down the publication of many regional journals and close off printing presses. Of course, some of the smarter publications switched to English and started being a little more subtle with their digs at the colonialists to slip their gaze and be able to propose their ideologies anyway. The freedom of the press suffered another speed bump in 1975 when the Emergency hit and the Prevention of Objectionable Matter Act was passed, censorship was imposed, presses were shut down and the Press Council Act was repealed. However, by 1978, things started going back to normal, the Prevention of Objectionable Matter Act was repealed and a new Press Council Act was instated.

The first notion of true freedom for the press only came once India attained its freedom in 1947. When the Constitution was created and implemented in 1950, one of the very Fundamental Rights itself, the Right to Freedom, stated the freedom of the press in Article 19 (1) (a). Article 19, clause 1 mentioned several freedoms that were accorded to the citizens of India, which include:-

a)     Freedom of speech and expression

b)     Assemble peacefully and without arms

c)     Form associations or unions

d)     Move freely throughout the territory of India

e)     Reside and settle in any part of the territory of India

f)      Acquire, hold and dispose of property

g)     Practice any profession, or to carry on any occupation, trade or business.

Now sub-clause (a) has been interpreted to also represent the freedom of the press, as the term ‘expression’ also includes circulation, propagation and publication of views and opinions, along with being able to speak and present whatever a citizen wants to. While there is no explicit mention of the freedom of the ‘press’ in particular, this is something that has been reinforced by the Supreme Court on numerous occasions, some noteworthy ones being Romesh Thappar vs the State of Madras, Brij Bhusan vs the Union Territory of Delhi, Sakal Papers vs the Union of India and Indian Express Papers vs the Union of India, to name a few. This is unlike a country like the USA, in which the First Amendment expressly states “The Congress shall make no law….abridging the freedom of speech or of the press…”

Of course, clause 2 of the same article imposed certain restrictions, stating “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offence.” In short, this sub-clause states that the freedom of speech and expression and, therefore, the freedom of the press, cannot hinder or go against any existing laws, and the government even has the power to make any laws that restrict this freedom if it feels that it needs to do so for national security, integrity, defamation, contempt of court, incitement, morality or other bases as listed.

Now what does that say about the freedom of the press in India? What it mainly says is that this freedom is not absolute. There are certain restrictions that have been imposed on the press, like in 19 (2), the Official Secrets Act, Article 361A (publication of a substantially true report of the proceedings of the house, but cannot publish report on a secret sitting), Contempt of Courts Act and others. Also, since the Indian press is being accorded the status of an ‘Indian citizen’ by being made a part of the ‘Freedom to Speech and Expression’ right, it does have the same restrictions that a citizen of India would. This means that it should strike a balance between individual rights and social control, wherein it cannot publish anything that would prove detrimental to society or incite others or disrupt public order. This is the same kind of restriction that is imposed on the citizens of India. Also, if the news organizations are considered akin to companies or industries, it does have to adhere to the same rights as these companies, like the Indian Industries Act. Even in the United States, several state legislatures do have or pass laws that can restrict the rights of the press if it is in the interest of national security or public good.

This has led to a debate on the fact that whether there is actual freedom of press in India or not. Some say that there isn’t, due to all the restrictions placed on it and the fact that there is no explicit mention of the ‘press’ in the Freedom Rights. On the other hand, some argue the validity of the press being a means of ‘expression’ and remind us of the way the press is flourishing in India. In fact, the press is the watchdog over the government and reflects the opinions of the people, thereby creating transparency and keeping the government in check. However, we can see now how more and more of the press is becoming more business and profit oriented, and there are restrictions being placed on them not by laws, but by advertisers responsible for their revenue, by the public responsible for their readership, and by their competition responsible for their stature.

Whether the press in India is truly free or not is up to anyone’s debate, but as a fourth pillar of the Indian democracy, it is pretty damn important!

Introduction to the Indian Constitution (Fundamental Rights)

The Indian Constitution is a remarkable piece of work that possesses some unique qualities that define India as a polity and a state. Here are some salient features of the Indian Constitution:-

a)     It is the longest written Constitution in the world: It is the longest written in the world, with 400 articles and 12 schedules. The US, in comparison, has 7 articles and 27 amendments. It is long so as to avoid any loopholes and cover all sorts of bases, leaving the Constitution binding. If any dispute, it can be solved by the SC. It is also a written Constitution, unlike the UK which is more unwritten and a matter of principle and statues, charters, Parliamentary Acts and judicial decisions. The US also survives on traditions and conventions. So do we, but not all the time, we change it up sometimes.

b)     It has been drawn from different sources: Our Constitution has been influenced and inspired by many different Constitutions around the world. For example, Fundamental Rights comes from the American Constitution, Directive Principles from the Irish, Parliamentary System from the British and the system of ‘lists’ from the Australian. Ambedkar justified this by saying that Constitutions are being made over hundreds of years, there is nothing new we can add. What we can do is take influence and adapt and grow based on our country, time and circumstances.

c)     It is an enacted Constitution: Unlike the British Constitution which can’t be traced back to a moment in time, ours is an enacted one which no alien power bestowed on us, as the preamble says, we adopted and enacted it on 26 November, 1949.

d)     The Constitution is supreme: The Constitution is the ultimate rule of law. No individual, authority or institution can go above what it says, neither can the legislature, executive or judiciary. Only the SC can interpret the Constitution, that too because the Constitution gave it the right to do so. We function on the ‘rule of law, not the rule of men’.

e)     It is reasonably flexible: Unlike the US Constitution, ours is pretty flexible. It takes a long time to make amendments in the US Constitution, while the British Constitution is pretty flexible. Since it isn’t written, amendments function like regular judgments. Ours is more of a mix – we can make amendments pretty easily by passing a Bill in the houses, but it does take some time.

f)      It establishes a quasi-federal polity: We possess features of a federal system as well as a unitary one. We function under a Union central government led by the PM, under which comes several State governments, each headed by their own CMs and ministers, which helps distribute administration and make it more effective. However, we have some unitary features, such as a single judicial hierarchy, single citizenship, Emergency provisions etc which help establish that we have a unitary government which the States cannot rebel against. So the ‘Indian polity is said to be a federal system with a strong unitary bias’.

g)     Parliamentary government coexists with a presidential system: We have a proper parliamentary system with two houses (Rajya Sabha and Lok Sabha). The head of the parliament is the PM, and his ministers are also members of the parliament. Then we also have a President, who is elected by the elected MPs. His post is more nominal, the PM is the real leader of the country, just like a governor and a CM. So we function effectively with both.

h)     Single citizenship: Unlike the US, we possess single citizenship i.e. every person is a citizen of India first, foremost and only. In the US, they are first a citizen of their state/domicile and then a citizen of the USA.

i)      Universal Adult Franchise: We function on a system of Universal Adult Franchise, wherein every person, regardless of class, caste, religion, race, gender, location, anything, above the age of eighteen has the right to vote.

j)      Special provisions for backward castes: We have special provisions for backward classes to help them grow and develop, such as reservation of seats for them in educational institutions and government and public offices. Such reservations and benefits are also maintained for different cultural and linguistic minorities and also women.

k)     Constitutional status for local government bodies: Traditional and local governments, like Panchayats, are mainstays of the Indian system of governance. We serve as a blend of Gandhian and Nehru philosophies, where we exist as a territorially and administratively united country, like Nehru wanted. However, we also have a system of Panchayats and municipalities in place (set up through amendments 73 and 74) to aid in the governance of cities, districts and villages.

l)      Inclusion of special provisions for Fundamental Rights, Directive Principals of State Policy and Fundamental Duties: One of the only Constitutions to have special provisions for these three, unlike the US (where a Bill of Rights wasn’t enacted till 10 amendments later) and the UK (where the Bill of Rights serves as their basic Constitution in itself, since they don’t have a written one). The Fundamental Rights, Directive Principles and Fundamental Duties serve as strongholds of our Constitution.

The Fundamental Rights are contained in Part III of the Constitution, comprising Articles 12 to 32. Article 12 defines ‘State’ and indicates that government authorities are bound by the provisions of Part III (the FRs). Article 13 states that the State cannot do anything to violate the spirit of the FRs. They are as follows:-

1.     RIGHT TO EQUALITY (Articles 14-18)

a.     Article 14: Equality before law: No individual denied equality before the law by the State, and no person can stand above the Constitution. We are all subordinate to it.

b.     Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth: States that:-

                                                 1.     The State shall not discriminate against any citizen on these grounds (repeat them if you must)

                                                 2.     No citizen can be prevented from access to shops, public places, places of entertainment or restaurants, access to wells, tanks, roads and places of public resort dedicated to the use of the general public.

                                                 3.     May make special provisions in favor of women and children.

                                                 4.     May make special provisions for socially backward classes, SCs and STs.

                                                 5.     Make special provisions for admission to educational institutions for SCs, STs and OBCs.

c.      Article 16: Equality in matters of public employment: Equality to all for opportunities related to employment or appointment to any office under the State and no discrimination on any of the above grounds. However, special provisions can be made for the usuals (SCs, STs and OBCs).

d.     Article 17: Abolition of Untouchablity: Deems untouchability prohibited and illegal, and something which can be punishable by law.

e.      Article 18: Abolition of titles: Says that:-

                                                   i.     No title shall be conferred by the state, except military or academic

                                                 ii.     Citizen cannot accept title from any foreign State

                                               iii.     Not a citizen, but holds a high position in an office under the State, cannot accept title by foreign State without Prez’s permission

                                               iv.     Person holding any office under the State cannot accept any present or office from foreign State without Prez’s permission

2.     RIGHT TO FREEDOM (Articles 19-22)

a.     Article 19 (we’ve done enough!)

b.     Article 20: Protection in respect of conviction for offences: Provides safety against certain things like ex-post factor legislation (cannot be penalized for a law when you’ve been convicted before the law was even enacted; cannot be given a punishment greater than what it was set at when you were convicted, even if the law has been modified), double jeopardy (convict cannot be punished for the same offence more than once) and self-witness (accused cannot be a witness against himself).

c.      Article 21: Protection of life and personal liberty: No person can be deprived of his life or personal liberty except according to procedure of law. SC has also elaborated this to include things like right to a dignified life, right to health, right to a means of livelihood etc.

d.     Article 22: Protection against arbitrary arrest and detention: Says that (i) person must know, before being detained in custody, why he’s been arrested and should be allowed to consult with a lawyer and (ii) must be produced before a magistrate within 24 hours of detention.

3.     RIGHT AGAINST EXPLOITATION (Articles 23 &24)

a.     Article 23: Prohibition of trafficking in human beings and forced labor: Criminalizes forced trafficking and prohibits slavery and bonded labor. However, State can engage in compulsory conscription (like for the military), provided that it does not discriminate.

b.     Article 24: Prohibition of employment of children in factories etc: No child below 14 to be employed in any factor, mine or hazardous employment.

4.     RIGHT TO FREEDOM OF RELIGION (Articles 25-28)

a.     Article 25: Freedom of conscience and free profession, practice and propagation of religion: Freedom of conscience and free profession, practice and propagation of any religion of one’s choice, thus instating Secularism. However, subject to conditions of public order, morality and health (stuff involving human sacrifices are banned).

b.     Article 26: Freedom to manage religious affairs: Every religion enjoys the right to (i) establish and maintain institutions (ii) manage its own affairs (iii) own and acquire immovable property (iv) administer such property in accordance with law.

c.      Article 27: Freedom as to payment of taxes for promotion of any particular religion: Cannot patronize any one religion by taxing others.

d.     Article 28: Freedom as to attendance of religious instruction or religious worship in certain educational institutions: No religious instructions to be provided by any State run or partially State-owned institution. If any such instructions provided, no person is compelled to follow.

5.     CULTURAL AND EDUCATIONAL RIGHTS (Articles 29 &30)

a.     Article 29: Protection of interests of minorities: All linguistic and cultural minorities have the right to preserve their language, script and culture.

b.     Article 30: Right of minorities to establish and administer educational institutions: Can establish and administer educational institutions. And if the State decides to fund one, it cannot discriminate.

6.     Article 31: Right to Property: It is a legal right, it is no longer a FR.

7.     RIGHT TO CONSTITUTIONAL REMEDIES (Article 32): Can move the SC if any of his/her FRs have been violated, by an individual, institution or the State itself.

India’s legal and judicial system

India has a unique judicial system. There are two sides to the judicial system – one is the original side, which caters to freshly or newly filed cases; the other is the appellate side, which addresses lower court decision cases.

A)   SC: The Supreme Court is the highest court of the land as established in the Constitution of India. It is the guardian of the Constitution. While it is primarily an appellate court, it also takes up fresh cases of urgent importance, serious human right violations or those under Article 32. It is headed by the Chief Justice of India and 30 other judges.

B)    HC: There are 24 HCs at the state level, and they are bound by the judgments and orders of the SC. They maintain their jurisdiction over a state or union territory or a collection of them. They mostly handle appellate cases when civil or district courts prove to be incompetent, but also sometimes handle fresh writ petitions in certain cases. For example, company law cases are always taken to a HC. Headed by a Chief Justice and judges that vary in number depending on the state and the number of cases.

C)    District Courts: They are established by the state governments and preside over the district or several districts to which they belong. They are mandated by the orders of the HC in whose jurisdiction they fall into. They are presided over by a District Judge and several other additional district judges and assistant district judges depending on the workload. They serve as appellate courts for subordinate, civil and criminal courts in their jurisdiction. They also are appellate courts for family courts, which are mostly just for matrimonial disputes.

D)   Village Courts: They basically aim to be implemented in various villages and small towns to solve small cases involving civil and property disputes and minor criminal cases (upto 2 years of imprisonment). Various acts have been enacted to grow these courts in India, including the 2008 Gram Nyayalayas Act. However, with an aim of 5000 courts, it doesn’t look like that goal will be achieved in the near future, considering we have not even reached 1000 of these courts.

Indian Penal Code (IPC) and Code of Criminal Procedure (CrPC)

The IPC is the main criminal code of India. It lists all the crimes that happen in a society and the punishment prescribed for them. In the IPC, every offence has been mentioned and also what kind of punishment or penalty it gets. The punishment is usually a jail term and/or monetary fine.

Crimes and court cases are an everyday affair and most newspapers/electronic channels have a team of reporters who cover them. Majority people are interested in reading crime stories, because they affect the entire society. It is therefore necessary that a journalist understands the IPC and its provisions.

The IPC was enacted in 1860. It only started getting applied in the Princely states (which had their own courts) in the 1940s. Since then, it has undergone many amendments, necessitated because of the circumstances. It applies to all Indian citizens and every Indian state and union territory except for Jammu and Kashmir. There are as many as 233 chapters and 511 offences listed in the IPC. So far, we do not know of any other offence apart from these. The aim of the Act was to provide a general penal code for India.

The Code of Criminal Procedure, on the other hand, is a procedural law which lays down the procedure to be followed by the courts for a criminal case. So hierarchy of criminal courts, the stages of a criminal suit, powers of magistrates, different types of criminal cases, the powers of the police to arrest etc are laid down in the CrPC.

It was enacted in 1973 and brought into force in 1974. The Act contains 484 sections and about 37 chapters. The offences under this court can be classified as:-

–        Cognizable and Non-Cognizable: Cognizable offences are those for which a police officer may arrest without court mandated warrant in accordance with the first schedule of the code. Non-cognizable offence cases require a duly authorized warrant for arrest, which are generally less serious.

–        Summons case and warrant case

This code is not applicable in Jammu and Kashmir.

Contempt of Parliament

Article 105 of the Indian Constitution deals with parliamentary privileges. A violation of any of these in any way is called a ‘breach of privilege’, which amounts to contempt of parliament.

Parliamentary privileges refer to rights and immunities enjoyed by Parliament as an institution and MPs in their individual capacity, without which they cannot discharge their functions. For example, parliamentary proceedings cannot be disturbed (by others), or the freedom to publish parliamentary proceedings. These privileges are to be defined by the Parliament itself, since there is no law enacted in this respect.

A ‘breach of privilege’ is a violation of these privileges of MPs and the parliament. ‘Casting reflections’, which implies making negative statements on MPs or parliamentary committees in the form of news items, editorials or statements made in newspapers, magazines or even public speeches or in any other form, are also considered breaches of privilege.

The speaker has the power to pass judgment on contempt of parliament cases and decide the quantum of judgment, which creates a power struggle with the judiciary. In most cases, such a breach is usually punished with a simple fine or imprisonment. Something like disrupting parliamentary proceedings by doing something like protesting could lead to minor imprisonment or a fine. This doesn’t necessarily mean that MPs are suddenly immune from the law, it just helps others respect the space of the parliament.

Some privileges include the freedom to publish a report on parliamentary proceedings and to quote statements, so long as they are not expunged, it is neutral and isn’t slanderous; parliamentary proceedings cannot be disturbed; no MP can be held accountable in a court of law for any speech/vote given by him/her in the parliament; the parliament has complete right over what it deems as a ‘breach of privilege’, how to prescribe punishment for such a breach and an amendment to any sort of privilege.

Article 194 deals with the exact same concept of contempt of parliament, but for state legislatures.

Conflict of Interest

In an era of growing dissatisfaction with the media, it is imperative that journalists avoid conflicts of interest, defined as situations in which there are competing professional, personal and/or financial obligations or interests that compete with the journalist’s obligation to his outlet and audience. You think you’re not doing anything wrong, but it actually is and can compromise your integrity as a journalist. Conflict of interest is a very open concept, it may mean one thing to you and it may mean something to someone else; what may not be a conflict to you could be one to someone else. There is no mention of it in the Society of Professional Journalists (SPJ), which just says that it shouldn’t be done. Some examples of potential conflicts of interest include:-

a)     Writing about friends or family members: You’re obviously going to be a little biased and swayed by their opinions, so it isn’t a good idea. Also, you wouldn’t want to write something bad about a place your relative or family member works for.

b)     Press junkets: Free trips offered by movie studios, electronic companies, government agencies etc are tempting, but don’t take them up.

c)     Hospitality: Don’t accept too much hospitality, it’ll make you obligated towards the subject. Also, don’t drink on the job, even if your job is reporting a story about drinking.

d)     Gifts: Use your common sense with them. Don’t necessarily reject them, but don’t get swayed by them or anything.

e)     Free tickets

f)      Paying sources

g)     Quid pro quo

h)     Blogs: Be sure to maintain a unified stance through your reporting and your blogging. Also, be careful of what you write, it’s on the interweb.

Paid News and Chequebook Journalism

Paid news is when individuals and entities like politicians, celebrities, businessmen etc pay to have their news and stories appear favorably and increase their popularity and presence. It is bad because it goes against journalistic ethics and deceives the people. Very vociferous in politics.

Chequebook journalism is when journalists and news organizations shell out loads of bucks in order to obtain news, like interviews with HR Haldeman, Brangelina baby pictures, shots of Michael Jackson etc. It is bad because the news has been bought.

Sting Operations

Talk about cases like Tehelka, talk about why sting operations are considered necessary (to expose the truth, media as a watchdog, to keep a check on the government), talk about why they are unethical (violating a person’s right to freedom and privacy, recording a person without their knowledge, defamation, performing illegal activities to encourage someone to commit a crime, abetment of crime)

Television Debates

Define what television debates are and how they are helpful. Some of the ethics to be considered in debates are:-

a)     Comprehensive: Should be a well-rounded show and debate with comprehensive arguments, balanced, objective, accurate.

b)     Researched

c)     Mutual respect

d)     Profundity: Should be a profound topic and helpful and relevant to audiences. Should not harm a person or invade their privacy.

e)     Conduct

f)      Appropriate

g)     Content: Avoid gory or titillating visuals or content

h)     No sensationalism

For example, Arnab Goswami’s ‘Newshour’ for Times Now and Republic.

Fabrication and fakery of news

Meant to deliberately mislead or benefit in some or the other way; clickbait-y articles; propagation of fake news during elections; if fake news can help acquire greater revenue and audiences, then use it is what people who use fake news think; it’s different from satire or parody, which is meant to create humor; many online pro-Trump fake news stories are being sourced out of a small city in Macedonia, where approximately seven different fake news organizations are employing hundreds of teenagers to rapidly produce and plagiarize sensationalist stories for different U.S. based companies and parties; on November 8, 2016, India established a 2,000-rupee currency bill on the same day as the Indian 500 and 1,000 rupee note demonetisation. Fake news went viral over Whatsapp that the note came equipped with spying technology that tracked bills 120 meters below the earth. Finance Minister Arun Jaitley refuted the falsities, but not before they had spread to the country’s mainstream news outlets;

Confidentiality of sources

Shock value

Shock value in advertising (United Colors of Benetton advertisements with the baby and umbilical cord, the black woman breastfeeding the white baby, the man dying of AIDS etc; shock value in music and performance; shock value in television and film; shock value in news and journalism)

Trial by media

Tabloid journalism

Tabloid journalism has developed a bad reputation for lowering the standards and quality of journalism. I personally think it’s a bit unfounded, but there is SOME truth to it. Tabloid journalism represents the lighter side of news, with more focus on soft news, entertainment stories, celebrity gossip and other such stuff. The problem with tabloid journalism is the fact that it is able to attract a lot more readers than any other form, and it has discouraged people from keeping up with harder hitting stories. There are lots more people like me who say that they’ve read a newspaper today, and by that, they’d mean they read the entertainment section or a tabloid. Tabloid journalism attracts a lot more readers and greater TRPs, and that’s why more and more news organizations are giving it importance. Kangana Ranaut’s troubled love life with Hrithik Roshan made a lot more news than anything else that could have been airing that day. And that’s what the people want. People are more interested in these stories than say the Indian parliamentary discussions or Syria. Also, tabloid journalism has resorted to greater sensationalism, by trying to make their news stand out more and catch more eyeballs, at the cost of accuracy, language and standard. As journalists, we must try to increase interest in harder news and try to make it more interesting to the people, so they flock to it the same way they flock to the latest Shahrukh Khan interview.

Right to Privacy

The right to privacy is something that is said to be enshrined in the constitution under Article 21, protection of life and personal liberty, which says that the citizen has the right to protect his personal liberty except according to the procedure of law. According to the SC, the expression ‘personal liberty’ is something that extends to an individual’s right to lead a dignified life, and that adds to the individual’s right to privacy as well.

Besides the Constitution, the Law of Torts assures the right to privacy of the individual. This is a branch of the law based on various decisions of judges on aspects of civil wrongs which are not provided for by statutory laws but which constitute the first principle of law relating to civil wrongs.

The right to privacy is not expressly or explicitly mentioned in the Constitution, and is implied as a right under Article 21. While various attempts have been made to pass bills with regards to establishing rights for privacy, the enactment of this right mainly comes from landmark SC judgments, including its verdict on Section 377. Now a notable conflict arises between a citizen’s right to privacy and his right to know. While the public can clamor for information, it goes against the law and a media person’s ethics to invade another person’s private life in order to garner some information about them. In case of an invasion, a person could approach a court and demand restitution. A person, whether from the media or otherwise, could also be hauled up under the defamation act, saying that the information published about him is ‘defamatory’.

However, for such complaints to hold true, it needs to be proven that the information published is untrue. Also, the media needs to release such information in good faith or in the interest of the public and without malice, only then can it be exempted from invading an individual’s right to privacy. For example, exposure of a political scandal can be considered to be something done in good faith and in public interest, therefore it can find itself exempted from the right to privacy. This doesn’t mean that it gives the media the right to invade anyone’s privacy whenever. Public figures always have it harder, since their lives are the ones people want to know about and they live their lives in the public eye. Kareena Kapoor suing Mid-Day for pictures of her kissing Shahid Kapoor counts as an invasion of privacy, since it doesn’t do the public much good, other than satisfying their interests. Similarly, Ratan Tata lodging a case saying that tapping his phone conversations with Nira Radia was an invasion of his privacy would not hold, since Nira Radia’s involvement in tax evasion and the 2G Scam would make it something done in good faith and public good.

A balance has to be struck between the two rights, so as to maintain journalistic standards and obtain the news without invading someone’s private life. The rush to get front page headlines and saucy pictures for popularity and TRPs has become a driving force behind wrong actions that journalists have been committing. It bodes well for the media to respect an individual’s privacy and understand what limits they can go to, lest they be put behind bars. But hey, if the country’s money is on the line, it probably works.

Right to Information

Asking for and being given information as a matter of right is known as the ‘Right to Information’. The RTI is considered a FR in India, and is preserved under Article 21, if it involves personal liberty or life, and Article 19 (1) (a), since this information helps us form expression and opinion.

It was first introduced as the Freedom of Information Bill in 2000 and passed as the Freedom of Information Act in 2002. However, it was ultimately repealed by the NDA government because of several drawbacks, such as no clear procedure for appeal or obtaining information, no classification of what counted as ‘information’ and no rights over information shared between central and state governments. The RTI was then passed in 2005.

Journalists, activists and interested individuals, who would find it difficult to get relevant information from the government authorities, can now invoke (use) the Right to Information Act to get the information they need. Until recently, the government authorities would do everything within their means or come out with all kinds of excuses to give information. But now under the RTI, it is compulsory for them to do so. However, there are certain modalities and procedures that have to be followed under this law. The RTI was enacted by the Parliament in June 2005 and came into effect on October 13, 2005. It applies to all states except Jammu and Kashmir (which has a separate law).

The RTI Act is applicable to all constitutional authorities, including the executive, legislature and judiciary; any institution or body established or constituted by an act of Parliament or a state legislature. It is also defined in the Act that bodies or authorities established or constituted by order or notification of appropriate government including bodies “owned, controlled or substantially financed” by government, or non-Government organizations “substantially financed, directly or indirectly by funds” provided by the government are also covered in it. The law is not applicable to private bodies/institutions unless they are financed by the central or state government.

Under the Act, every public authority has to computerize records so that it reaches all cross sections of people. It specifies that citizens have a right to:

A) Request any information (only that info defined under the Act)

B) Take copies of documents

C) Inspect documents, works and records

D) Take certified samples of materials of work

E) Obtain information in form of printouts, diskettes, floppies, tapes, video cassettes ‘or in any other electronic mode’ or through printouts.

The individual needs to apply to the respective Public Information Officer (PIO) to obtain the required information. The PIO is supposed to furnish the required information in the closest required format possible within 30 days of registration, within 48 hours if it concerns life or personal liberty, and within 45 days if it concerns corruption or human rights violations by security agencies, but only with the permission of the Central or State Information Commission (CIC or SIC). The individual is required to only provide his name and contact details. There are separate fees for filing under the RTI, which is for the actual registration, for each page of information and the number of hours spent on it, which differs with each state.

Under the Act, information has been defined as any material in any form including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form.

Most security and military bodies are excluded from the RTI (unless it concerns corruption or human right violations). There are various exceptions to RTI, such as information crucial to the security or sovereignty of India, info that could lead to breach of privilege, info entrusted by foreign governments, info that has been banned from release by a court of law, info regarding trade secrets, intellectual property or commercial confidence and others like cabinet papers or information that doesn’t really concern that particular body.

Disclosure of information was initially restricted under the Official Secrets Act (OSA) of 1923. The OSA still exists, but the RTI relaxes some of its provisions, which creates some conflict between the two. According to the OSA, no information can be disclosed by the government authorities in matters relating to security of the State, sovereignty of the country and friendly relations with foreign states.

Despite the Right to Information Act, media faces a lot of difficulties in collecting information under the Act. Most of these are procedural and concern implementation. Some of the main hurdles faced by the media are:

–        Lack of awareness as to which public authority has the concerned information.

–        Locating the concerned PIO is tough (no notice boards, incomplete and old lists of PIOs on websites and directories)

–        Negative attitude of the PIO while receiving the RTI application.

–        Lack of proper staff, infrastructure, monitoring and training mechanism in handling RTI applications.

–        The rate at which the cases are disposed of by the CIC and SICs is poor

–        PIOs do not comply with the orders of the CIC

–        Websites on which information is disclosed are often not accessible.

–        Records regarding RTI are not available. For instance, information on number of applications received and action taken.

–        Misuse of exemption clauses and using Official Secrets Act as an excuse.

–        Lack of political will to implement the RTI Act.

–        Procedure of filing appeals at the CIC is very tedious.

–        The stipulated time period of 30 days is too long as far as media is concerned.

The Press Council of India

The Press Council of India is a statutory body in India that governs the conduct of the print media. It is one of the most important bodies that sustain democracy, as it has supreme power in regard to the media to ensure that freedom of speech is maintained. However, it is also empowered to hold hearings on receipt of complaints and take suitable action where appropriate. It may either warn or censure the errant journalists on finding them guilty. It did so on 21 July 2006, when it censured three newspapers — Times of India (Delhi and Pune), Punjab Kesari (Delhi) and Mid Day (Mumbai) — for violation of norms of journalistic conduct. The Council’s actions may not be questioned unless it is proved to be in violation of the constitution, which makes it an exceedingly powerful body.

Justice Chandramauli Kumar Prasad is Chairman of the Council as of 2015. The immediate past Chairman was Markandey Katju (2011 – 2014).

Powers, practice and procedure[edit]

The Press Council of India was first set up on 4 July 1966 by the Parliament to regulate the press in India. The basis at that time was the Press Council Act, 1965which resulted from the recommendations of the First Press Commission of India (1952-1954). The started objectives were “to help newspapers maintain their independence” and to “raise the standards” through a code of conduct, maintaining “high professional standards” and “high standards of public taste”. However, after 1978, the Council functions under the Press Council Act 1978 which arose from the recommendations of the Second Press Commission of India (1978) which argued, among other things, for a “cordial relationship between the government and the press”.

The Press Council is a statutory, quasi-judicial body which acts as a watchdog of the press. It adjudicates the complaints against and by the press for violation of ethics and for violation of the freedom of the press respectively.

The Press Council is headed by a Chairman: usually, a retired judge of the Supreme Court of India (except for the first chairman, Justice J. R. Mudholkar, who was a sitting judge of Supreme Court of India in 1968).It consists of a Chairman and 28 other members. Of the 28 members, 13 represent the working journalists. Of whom 6 are to be editors of newspapers and remaining 7 are to be working journalists other than editors. 6 are to be from among persons who own or carry on the business of management of newspapers. One is to be from among the persons who manage news agencies. Three are to be persons having special knowledge or practical experience in respect of education and science, law and literature and culture. The remaining five are to Members of Parliament : three from LokhSabha, and two from RajyaSabha. The members serve on the Council for a term of three years. The Council was last reconstituted on 22 May 2001. The present Chairman is Justice Chandramauli Kumar Prasad.

The Council is founded by revenue collected by it as fees levied on the registered newspapers in the country on the basis of their circulation. No fee is levied on newspapers with a circulation of less than 5000 copies. The deficit is made good by grants by the Central Government, through the Ministry of Information and Broadcasting.

Complaints Procedure

A complaint against a newspaper for any publication the complainant finds objectionable and affecting him personally, or for non-publication of any material, should first be taken up with the editor or other representative of the publication concerned.

If the complaint is not resolved satisfactorily, it may be referred the Press Council of India. The complaint must be specific and in writing and should be filed/lodged within two months of the publication of the impugned news item in case of dailies and weeklies and four months in all other cases, along with the original/photostat copy of the impugned clipping (an English translation if the matter is in a South Asian language). The complainant must state in what manner the publication/non-publication of the matter is objectionable within the meaning of the Press Council Act, 1978, and enclose a copy of the letter to the editor, pointing out why the matter is considered objectionable. The editor’s reply thereto or published rejoinder, if any, may also be attached to it. A declaration stating that the matter is not pending in any court of law is also required to be filed.

If a newspaper or journalist is aggrieved by any action of any authority that may impinge on the freedom of the press, he can also file a complaint with the Council. The aggrieved newspaper or journalist may inform the Council about the possible reason for the action of the authorities against him i.e. if it is as a reprisal measure taken by the authorities due to critical writings or as a result of krisan the policy that may affect the freedom of the press (supporting documents, with English translation if they are in a South Asian language, should be filed). A declaration regarding the non-pendency of the matter in any court of law is also necessary.

On receipt of a complaint made to it or otherwise, if the Council is prima facie satisfied that the matter discloses sufficient ground for inquiry, it issues a show cause notice to the respondents and then considers the matter through its Inquiry Committee on the basis of written and oral evidence tendered before it. If, on inquiry, the Council has reason to believe that the respondent newspaper has violated journalistic norms, the Council keeping in view the gravity of the misconduct committed by the newspaper, warns, admonishes or censures the newspaper or disapproves of the conduct of the editor or the journalist as the case may be. It may also direct the respondent newspaper to publish the contradiction of the complainant or a gist of the Council’s decision in its forthcoming issue.

Similarly, when the Council upholds the complaint of the aggrieved newspaper/journalist the Council directs the concerned government to take appropriate steps to redress the grievance of the complainant. The Council may, if it considers necessary, make such observations, as it may think fit, in any of its decisions or reports, respecting the conduct of any authority, including Government.

INTRODUCTION

Sedition is a term of law which refers to overt conduct, such as speech and organization, that is deemed by the legal authority as tending toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent (or resistance) to lawful authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. Seditious words in writing are seditious libel. A seditionist is one who engages in or promotes the interests of sedition.

Typically, sedition is considered a subversive act, and the overt acts that may be prosecutable under sedition laws vary from one legal code to another. Where the history of these legal codes has been traced, there is also a record of the change in the definition of the elements constituting sedition at certain points in history. This overview has served to develop a sociological definition of sedition as well, within the study of state persecution.

The difference between sedition and treason consists primarily in the subjective ultimate object of the violation to the public peace. Sedition does not consist of levying war against a government nor of adhering to its enemies, giving enemies aid, and giving enemies comfort. Nor does it consist, in most representative democracies, of peaceful protest against a government, nor of attempting to change the government by democratic means (such as direct democracy or constitutional convention).

Sedition is the stirring up of rebellion against the government in power. Treason is the violation of allegiance to one’s sovereign or state, giving aid to enemies, or levying war against one’s state. Sedition is encouraging one’s fellow citizens to rebel against their state, whereas treason is actually betraying one’s country by aiding and abetting another state. Sedition laws somewhat equate to terrorism and public order laws.

According to the English Law, Sedition embraces all the practices whether by word or writing which are calculated to disturb the tranquility of the State and lead an ignorant person to subvert the Government. Mere criticism of the government does not amount to sedition, if it was not calculated to undermine the respect for the government in such a way so as to make people cease to obey it and so that only anarchy follows. Section 124A of the Indian Penal Code defines the offence of sedition as follows: “Sedition. Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine”. But Explanation 3 says “Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section”. In Kedar Nath v. State of Bihar (AIR 1952 SC 955), the court upheld the constitutional validity of the Section 124A of I.P.C and also upheld the view taken in Niharendu’s case.

LAW OF SEDITION IN INDIA

The word “Sedition” does not occur in Section 124-A of the Indian Penal Code or in the Defense of India Rule. It is only found as a marginal note to Section 124-A, and is not an operative part of the section but merely provides the name by which the crime defined in the section will be known.

                                                                                                                                                                                              As stated in KENNY- the Law of Sedition relates to the uttering of the seditious words, the publication of seditious libels, and conspiracies to do an act for the furtherance of a seditious intention. Sedition, whether by words spoken or written, or by conduct, is a misdemeanor at common law punishable by fine and imprisonment. Sir JAMES STEPHEN defined a seditious intention as “an intention to bring into hatred or contempt, or to excite disaffection against, the person of his Majesty, his heirs or successors, or the Government and the constitution of the United Kingdom by law established, or either House of Parliament, or the administration of Justice or to excite his Majesty’s subjects to attempt otherwise than by lawful means, the alteration of any matters in Church or State by law

established…..or to raise discontent or disaffection amongst his Majesty’s subjects, or to promote feelings of ill will and Hostility between different classes of such subjects.” But an intention to show that his Majesty has been mislead or mistaken in his measures to point out errors or defects in the government or constitution, as by law established with a view to their reformation, or to excite his Majesty’s subjects to attempt by lawful means the alteration of any matter in Church or State by law established, or to point out, in order to their removal, matters which are producing, or have a tendency to produce, feelings of hatred and ill will between classes of His Majesty’s subjects, is not a seditious intention. It is the right of every citizen to discuss public affairs fully and freely but such discussions must not be directed to the incitement of unlawful acts or calculated to excite disaffection. In a

twentieth century prosecution for sedition, the Judge told the jury that they could take into account the State of Public feelings. HALSBURY lays down: the essence of the offence of treason lies in the violation of the allegiance owed to the sovereign. Allegiance is due from all British subjects wherever they may be local allegiance is owed by an alien under the protection of the crown so long as he is resident within the realm and by a resident alien who goes abroad leaving his family or effects within the realm or goes abroad in possession of a British Passport. An ambassador who is not a subject of the State to which he is accredited does not owe any temporary allegiance to that State.

The English law does not make mere spoken or written words treason where they do not relate to any act or design then actually on foot against the life of the King or the levying of war against and in contemplation of the speaker. But under the Penal code in India the aging or levying of war and the abetment thereof are put on the same footing of section 121 and the abetment is as much an offence of treason as the aging of war itself.

In the case of Ram Nandan v. State of U.P. The Hon’ble High Court held that section 124-A imposed restriction on the freedom of speech which is not in the interest of the general public and hence declared 124-A as ultra vires. But this decision of the Hon’ble High Court was overruled by the Hon’ble Supreme Court in the case of Kedarnath Das v. State of Bihar, and held Section 124-A, intra vires.

In Tara Singh v. State of Punjab, section 124-A, of Indian Penal Code was struck down as unconstitutional being contrary to freedom of speech and Expression guaranteed under Art 19(1) (a).

To avert the constitutional difficulty as a result of the above referred case. The constitutional 1st (Amendment) Act, 1951 added in Art 19 (2) two words of widest import, wiz., “in the interest of” “public order”. Thereby including the legislative restrictions on freedom of speech and expression. The advocates of the other view held that section 124-A, of I.P.C is constitutional and is not in contravention of Art 19(1) (a) as it is saved by the expression “in the interest of public order” in Art 19(2). It has been stated that the expression in the interest of public order is of wider connotation, and includes not only the Acts which are likely to disturb public order but something more than that. In accordance with this interpretation, section 124-A, I.P.C. has been held intra vires of the constitution. This view found blessings from the Supreme Court in the case of Kedarnath v. State of Bihar

(supra) wherein it was held that any law which is enacted in the interest of public order may be saved from the voice of constitutional invalidity.

The court had further observed in the said case that the right guaranteed under Art 19(1) (a) is subject to such reasonable restriction as would come within the purview of clause (2), to Art 19 which comprises

(a) security of the State,

(b) friendly relations with foreign states,

(c) public order,

(d) decency or morality, etc.

with reference to the constitutionality of section 124-A, of the I.P.C, as to how far they are consistent with the requirements of clause (2) of Art 19 with particular reference to security of state and public order, the section, it must be noted penalizes any spoken or written words or science or visible representations, etc, which have the effect of bringing, or which attempt to bring into hatred or contempt or excite or attempt to excite disaffection towards “the government established by law” has to be distinguished from the persons for the time being engaged in carrying on the administration. “Government established by law” is the visible symbol of the state would be in jeopardy, where the government established by law is subverted.

The continued existence of the government established by law is an essential condition of the stability of the state. Hence, any act within the meaning of section 124-A, which has the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question. But the section has taken care to indicate clearly that strong words under lawful means used to express disapprobation of the measures of the Government with the view to their improvement or alteration would not come within the section. Similarly, comments, however, strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of the those acts or measure by lawful means that is to say, without exciting those feelings of enmity and disloyalty which imply excitation to public disorder or the

use of violence.

This section requires two essentials:-

1. Bringing or attempting to bring into hatred or contempt or exciting or

attempting to excite disaffection towards, the Government of India.

2. Such act or attempt may be done

(i) by words, either spoken or written,

or

(ii) by signs,

(iii) by visible representation.

The law of sedition as codified in India represents in substance. The English law of sedition. In a charge under section 124-A of the penal code, the prosecution must prove to the hilt that the intention of the writer or the speaker, whoever he may be, is to bring into hatred or contempt or excite or attempt to excite disaffection towards the Government established by law in British India. The essence of the crime of sedition, therefore, consists in the intention with which the language is used and what is rendered punishable by section 124-A of the penal code is the intentional attempt, successful or otherwise, the rouse as against Government the feelings enumerated in the section, a mere tendency in an Art. to promote such feelings is not sufficient to justify a conviction; in other words, the prosecution must bring home to the accused that his intention was as is described in the section itself. The essence of the offence of sedition under section 124-A, I.P.C., is the intention with which the language of a speech is used and that intention has to be judged primarily from the language itself. In forming an opinion as to the character of speech charged as sedition, the speech must be looked at and taken as a whole, freely and fairly, without giving undue weight to isolated passages and without pausing upon an objectionable sentence here or a strong word there, and, in judging of the intention of the speaker, each passage, should be considered in connection with the others and with the general drift of the whole. The provisions of section 124-A, I.P.C. are very wide and in strict law they would cover everything that amounts to defamation of the Government excluding any criticism in good

faith of any particular measures or acts of administration. If the Government comes into

Court and asks for a decision from a judge or a Magistrate whether particular conduct is or is not within the terms of section 124-A, the Court must express a perfectly fair opinion as between the parties apart from its own ideas of political expediency and the terms of section 124-A, are so wide that much they may generally be regarded as justifiable speech would come within its terms.

A speech suggesting generally that the Government established by law in India was thoroughly dishonest and unfair and that steps should be taken either by violence or by threat of violence to abolish it, comes within the provisions of section 124- A. the gist of the offence under section 124-A lies in the intention of the writer to bring into hatred and contempt the Government and is not to be gathered from isolated or stray passages here and there but from a fair and generous reading of the article as a whole. Further, in gathering the intention allowance must be made for a certain amount of latitude for writers in the public press.

The offence does not consist in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by the publication of seditious articles is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within this section, and would probably fall within other sections of the penal code. If he tried to excite feelings of hatred or contempt towards the Government, that is sufficient to make him guilty under this section. The Federal Court of India had, however, held that the gist of the

offence of sedition is incitement to violence; mere abusive words are not enough. The view of the Federal Court was subsequently overruled by the Privy Council, as being opposed to the view expressed in several cases.

The quintessence of sedition is intention. Thus here a speech addressed to an audience consisting, mostly of ignorant zamindars and the intention for holding the Darga in which the speeches were delivered as unknown it was held that the intention has to be gathered solely from the speeches themselves and the effect they were likely to create on that ignorant audience. When the speaker told the audience that the Government wanted to ruin those people ho were trying to set them on the right path, that the Englishmen had come to India to make the people addicted to drink, opium and bhang, that the executive and judiciary are partial to white men and exhorted the audience to resolve not to live under Englishmen: It was held that the speech was calculated to excite disaffection against the Government and to bring it into hatred and contempt. Where the accused in one of his speeches advocated the boycott of foreign goods, not as a means for helping industries but to get rid of the English from India and followed it up by imprecations as to the presence of the English in India as a curse to the country, it was held that it amounted to sedition punishable under section 124-A and 153-A, I.P.C. Where in course of a speech at a meeting of the labourers, the accused urged upon the labourers to unite in order to fight against their to enemies, the Government and the capitalists, characterizing them as sucking the blood of the labourers and dilated upon the advantages which would be conferred upon them by a general strike, and emphasized that the Government were getting afraid of labour and were putting labour leaders in jail for long periods, it was held that the speech was not strong enough to promote or attempt to promote feelings of enmity or hatred against the capitalists, whether they constituted or not, a class within the meaning of Section 153-A and that no offence punishable under that section was committed. Dissenting from this view the minority held the whole effect of the effect, so far as

Government was concerned, was to suggest to the persons to whom it was addressed that

Government in taking sides against them, was taking the part of their opponents, and that

to make a charge of gross partiality on that sort against Government was calculated to

feelings of enmity and disaffection towards Government and that an offence under section

124-A, was committed.

It is true that it is not sedition to criticize administrative machinery or the officers of Government but where the speaker exceeds the limits of fair criticism and his object in attacking the existing Government is to create disaffection the speech amounts to sedition.

In cases under Section 124-A, I.P.C., the Courts have not to see the effect on the mind of the people and they are concerned with the construction of the speech, and the speech has to be taken as a whole and not just in pieces. A man may criticize or comment upon any measure or act of the Government and freely express his opinion upon it. He may express condemnation but so long as he confines himself to that he will be protected, but if he goes beyond that he must pay the penalty for it. The question of intention is always an important factor in such cases. Authorship of seditious material alone is not the gist of offence of sedition. Distribution, circulation of seditious material may also be sufficient.

Where a speaker said that the Government had wounded the feelings of the Sikhs in the

matter of Sis Ganj Gurdwara at Delhi and any one could see the grief-provoking picture showing thousands of bullet marks on the walls of the Gurdwara and that in the name of law and order bullets were showered on the people: held, that the reference to the Sis Ganj Gurdwara and to the motive of the authorities to rain bullets under the cover of maintaining law and order was undoubtedly such as to bring the Government established by law in India into hatred and the speaker guilty of sedition. The essence of the crime of sedition consists in the intention with which the language is used. The intention of a speaker, writer or publisher, may be inferred from the particular speech, article, or letter. The intention is gathered from the articles. The requisite intention cannot be attributed to a person if he was not aware of the contents of the seditious publication. If, on reading the articles or speeches the reasonable and natural and probable effect of the articles or speeches on the minds of those who read them, or to whom they were addressed appears to be that feelings of hatred, contempt or disaffection, old be excited towards the Government the offence is committed. Where a person says in his speech that he himself is the follower of the precept of non-violence but at the same time says that he is nobody to find fault with people who in their anger at oppression as is witnessed under the present Government use more violent methods and shoot at members of the assembly and where throughout his speech he insinuates various disabilities of village life to be due to the present Government there is an intention on his part to bring the Government into hatred and he commits the offence under section 124-A.in order to decide whether or not a speech constitutes an attempt to excite hatred, contempt or disaffection, it should be viewed from the standpoint of the types of persons on whom it was primarily addressed. On the one hand, their limitations, if any, have to be taken into account; on the other, the fact that the words may convey to them a literal meaning must not be lost sight of. The time and the place are also factors which should be considered.

The section places absolutely on the same footing the successful exciting of feelings of disaffection and the unsuccessful attempt to excite them. It is not an essential ingredient of sedition that the act done should be an act which is intended or likely to incite to public disorder. But this view of the law does no longer seem to be correct, in view of the decision of the Supreme Court in Kedar Nath’s case, wherein SINHA, C.J. observed “comments, however strongly worded expressing, disapprobation of actions of Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity or disloyalty which imply excitement to public disorder or the use of violence”. In this very case it was further held that viewed in the context of antecedent history of the legislation, its purpose and the mischief it seeks to suppress the provisions of S. 124-A and S. 505 of the Indian Penal Code should be limited in their application to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence. Where the propaganda secretary of a Gurdwara addressed a gathering of Sikhs, some of whom were wearing black clothes and turbans, and in course of his speech though he did not give direct incitement to violence but he nevertheless gave exaggerated figures of casualties following army action in Punjab, it as held that it would be quite proper to infer from the text and tenor of the speech made by he accused that the same was intended to bring the Government into contempt with the likelihood of eruption of violence and public disorder contemplated in Kedarnath’s case. In the circumstances, his petition for quashing the criminal proceedings against him

under S. 482, Cr. P.C., was rejected.

In a Supreme Court case it has been held that the casual raising of slogans once or twice by two individuals alone cannot be aimed at exciting or attempt to excite hatred or disaffection towards the Government as established by law in India.

In order to sustain a conviction under section 124-A, it must be proved

(a) that the accused spoke the words in question,

(b) that he thereby brought or attempted to bring into hatred or contempt or excites or attempts to excite disaffection, and

(c) that such disaffection was towards the Government established by law in India.

An accused person may be legally tried and convicted in one trial under sections 124-

A and 153-A, I.P.C. on charges framed on three disconnected articles.

In a case a complaint was filed under Penal Code, Section 124-A but no original or translation of alleged speech was attached to it. The complaint was held not proper. It has however been held in earlier case a complaint on a charge of sedition need not contain or set out the speeches or the alleged seditious words. A complaint is not intended to give information to the accused; and even if a complaint should set out the seditious words, the omission is an irregularity within section 537 (a), Cr.P.C. (old).

In view of section 196, Cr.P.C., 1973 no Court shall take cognizance of any offence punishable under chapter VI or a criminal conspiracy to commit such offence except with the previous sanction of the Central Government or of the State Government Section 196, Cr.P.C. reserves to the State Government the power of determining whether cognizance shall be taken by the Court of any of the offences enumerated in that Section. When the question is only of the machinery for the institution of the proceedings and not of the mischief which Section 196 is designed to prevent, it is a mere irregularity not an illegality which would vitiate the proceedings. When the sanctioning authority directed the Senior

Superintendent of Police to “institute a complaint against the appellant” it could not have been the intention of the state Government that the ministerial task of signing the complaint must be done by the Senior Superintendent of Police himself. The senior Superintendent of Police was directed to institute a complaint merely because he was the head of the Police administration of the district.

LAW OF SEDITION IN AUSTRALIA

Australian sedition law is the area of the criminal law of Australia relating to the crime of sedition.

                                                                                                                                                                        Australian law regarding is similar to that in New Zealand and Canada, reflecting a common legal heritage from Britain. The Australian colonies inherited the UK security law regime, with the 1819 ‘Six Acts’ for example being echoed in legislation such as the 1827 NSW enactment against “publication of Blasphemous and Seditious Libels”. Each colony adopted and adapted English law regarding riot, respect for the Crown and public menaces.

The initial federal Crimes Act, subsequently much amended, reflected updating of the UK and colonial legislation during the 1890s regarding Fenians, anarchists and other threats.

Effectively defunct for nearly half a century, these laws returned to public notice in 2005 when changes were included in an Anti-terrorism Bill announced by Prime Minister Howard prior to a “counter-terrorism summit” of the Council of Australian Governments on 27 September.

The Bill was introduced on 3 November and passed into law on 6 December 2005after government amendments adding some protection for the reporting of news and matters of public interest were introduced in response to community pressure. The changed laws are to be reviewed in 2006.

History

Early prosecutions for sedition in Australia include:

* the conviction of Henry Seekamp for seditious libel over the Eureka Rebellion in 1854;

* the conviction of 13 trade union leaders of the 1891 Australian shearers’ strike for sedition and conspiracy; and

* the action against radical Harry Holland, jailed for two years in 1909 over his advocacy of violent revolution during the Broken Hillminers’ strike.

During the First World War Sedition laws were used against those who opposed conscription and war, in particular the Industrial Workers of the World (IWW) in Australia Ian Turner, Sydney’s Burning (An Australian Political Conspiracy) (1969). In 1916 members of the IWW in Perth were charged with sedition including 83 year old Montague Miller, known as the grand old man of the labour movement. Miller was released after serving a few weeks of his sentence but was re-arrested in 1917 in Sydney at the age of 84 and sentenced to six months jail with hard labour at Long Bay Gaol on the charge of belonging to an unlawful association Joe Toscano,Australian Anarchist History – Monty Miller, Anarchist Age Weekly Review Number 215 2 September 1996. The Sydney Twelve were all charged and convicted with various offences including sedition.

Lance Sharkey, then General Secretary of the Communist Party of Australia, was charged that, in March 1949 he:

uttered the following seditious words: “If Soviet Forces in pursuit of aggressors entered Australia, Australian workers would welcome them. Australian workers would welcome Soviet Forces”.

The last prosecution was in 1960, when Department of Native Affairs officer Brian Cooper was prosecuted for urging “the natives” of Papua New Guinea to demand independence from Australia. He was convicted, and committed suicide four years later, after losing his appeal.

Recent cases

The Australian government in 2006 investigated Islamist books found in Lakemba and Auburn in Sydney promoting suicide bombings, anti-Australian conspiracies and racism, but the Australian Federal Police found in 2006 they did not breach Commonwealth Criminal Code or NSW Crimes Acts 1900. Muslim ‘books of hate’ get OK Daily Telegraph, May 15, 2006

Previous Law

Colonial legislation, for example the Queensland Criminal Code (1899), first established sedition in Australian law.

The Federal period offence of sedition was created in the Federal Crimes Act (1914) Federal Crimes Act (1914).

Seditious Intention

Section 24 defined a seditious intention as [a]n intention to effect any of the following purposes:

(a) to bring the Sovereign into hatred or contempt;(d) to excite disaffection against the Government or Constitution of the Commonwealth or against either House of the Parliament of the Commonwealth;(f) to excite Her Majesty’s subjects to attempt to procure the alteration, otherwise than by lawful means, of any matter in the Commonwealth established by law of the Commonwealth; or(g) to promote feelings of ill-will and hostility between different classes of Her Majesty’s subjects so as to endanger the peace, order or good government of the Commonwealth;

Seditious Enterprises

Section 24B defined a seditious enterprise as an enterprise undertaken in order to carry out a seditious intention, and Section 24Cspecified that [a] person who engages in a seditious enterprise with the intention of causing violence, or creating public disorder or a public disturbance, is guilty of an indictable offence punishable on conviction by imprisonment for not longer than 3 years, although Section 24D(2) provided that [a] person cannot be convicted of any of the offences defined in section 24C or this section upon the uncorroborated testimony of one witness.

Seditious Words

Section 24B defined seditious words as words expressive of a seditious intention, and Section 24D(1) specified that [a]any person who, with the intention of causing violence or creating public disorder or a public disturbance, writes, prints, utters or publishes any seditious words shall be guilty of an indictable offence punishable by [i]imprisonment for 3 years.

Summary Prosecution

Section 24E allowed that, while an accused person might elect to be committed for trial, sedition could, with the consent of the Attorney-General, be prosecuted summarily, in which case the applicable penalty would be imprisonment for a period not exceeding 12 months.

Good Faith

Section 24F specified that nothing in the preceding provisions made it unlawful:

(a) to endeavour in good faith to show that the Sovereign, the Governor-General, the Governor of a State, the Administrator of a Territory, or the advisers of any of them, or the persons responsible for the government of another country, has or have been, or is or are, mistaken in any of his or their counsels, policies or actions;(b) to point out in good faith errors or defects in the government, the constitution, the legislation or the administration of justice of or in the Commonwealth, a State, a Territory or another country, with a view to the reformation of those errors or defects;(c) to excite in good faith another person to attempt to procure by lawful means the alteration of any matter established by law in the Commonwealth, a State, a Territory or another country;(d) to point out in good faith, in order to bring about their removal, any matters that are producing, or have a tendency to produce, feelings of ill-will or hostility between different classes of persons; or(e) to do anything in good faith in connexion with an industrial dispute or an industrial matter.

In considering a good faith defence, it was specifically noted that the Court might consider whether the case involved the safety or defence of the Commonwealth; assistance to countries or organisations at war with the country or its allies, or to enemies of its allies (whether or not they are enemies of Australia); traitors or saboteurs; or the intention of causing violence or creating public disorder or a public disturbance.

Unlawful Organisations

Section 30A declared that any body of persons, incorporated or unincorporated (or [a]ny branch or committee of an unlawful association, and any institution or school conducted by or under the authority or apparent authority of an unlawful association) which by its constitution or propaganda or otherwise advocates or encourages (or which is, or purports to be, affiliated with any organization which advocates or encourages) sabotage; damage to property used in cross-border trade or commerce; revolution or war against either any civilised country or organised government; or the doing of any act having or purporting to have as an object the carrying out of a seditious intention was an unlawful association for the purposes of the Act.

The Act went on to criminalise members (deemed, in the absence of evidence to the contrary, to include attendees at a meeting, those speaking in public in advocacy of an association or its objects or distributing its literature), officers, representatives and teachers in any institution or school conducted by or under the authority or apparent authority, of an unlawful association, as well as persons printing or selling material produced by, or intentionally permitting a meeting in their premises of, such an association.

Current Law

Schedule 7 of the Anti-Terrorism Bill (No. 2) 2005 Federal Anti-Terrorism Bill (No. 2) 2005 and memoranda (and sedition-specificSchedule 7 of the draft bill), passed by the Upper House on 6 December 2005, repealed Sections 24A to 24E of the Crimes Act (1914)and reintroduced them, along with several new classes of offence, in a Division 80—Treason and sedition. Crimes in this division now attract a maximum penalty of seven years’ imprisonment.

Seditious Intention

The definition of “seditious intention” originally in Section 24A has become (as amended):

An intention to use force or violence to effect any of the following purposes:

(a) to bring the Sovereign into hatred or contempt;

(b) to urge disaffection against the following:

(i) the Constitution;

(ii) the Government of the Commonwealth;

(iii) either House of the Parliament;

(c) to urge another person to attempt, otherwise than by lawful means, to procure a change to any matter established by law in the Commonwealth;

(d) to promote feelings of ill-will or hostility between different groups so as to threaten the peace, order and good government of the Commonwealth.

Sedition

Subdivision 80.2 of the proposed legislation (as amended) specifically criminalises Urging the overthrow of the Constitution or Government:

(1) A person commits an offence if the person urges another person to overthrow by force or violence::(a) the Constitution; or::”(b) the Government of the Commonwealth, a State or a Territory; or:(c) the lawful authority of the Government of the Commonwealth.

Similarly, it introduces the offence of [urging] another person to interfere by force or violence with lawful processes for an election of a member or members of a House of the Parliament, and Urging violence within the community:

(a) the person urges a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or other groups (as so distinguished); and(b) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.

Additionally, it is now specifically illegal to [urge] a person to assist the enemy:

(a) the person urges another person to engage in conduct; and(b) the first-mentioned person intends the conduct to assist, by any means whatever, an organisation or country; and(c) the organisation or country is::(i) at war with the Commonwealth, whether or not the existence of a state of war has been declared; and:(ii) specified by Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war with the Commonwealth.

or to [urge] a person to assist those engaged in armed hostilities:

(a) the person urges another person to engage in conduct; and(b) the first-mentioned person intends the conduct to assist, by any means whatever, an organisation or country; and(c) the organisation or country is engaged in armed hostilities against the Australian Defence Force.

except where such urgings are by way of, or for the purposes of, the provision of aid of a humanitarian nature.

These new crimes are all punishable by Imprisonment for 7 years.

Good Faith

The new legislation, in subsection 80.3 Defence for Acts done in Good Faith, updates the circumstances for good faith exemption in a fashion similar to the definition of seditious intention, above.

Extraterritoriality

The new law specifies, under section 80.4 Extended geographical jurisdiction for offences, that:

Section 15.4 (extended geographical jurisdiction – category D) applies to an offence against this Division

Originally introduced into Australian law as a consequence of Australia’s acceptance of the International Criminal Court, Section 15.4 of the Criminal Code Act (1995) Federal Criminal Code Act 1995 provides that offences under category D apply:

(a) whether or not the conduct constituting the alleged offence occurs in Australia; and

(b) whether or not a result of the conduct constituting the alleged offence occurs in Australia.

Category D — initially applicable only to such crimes as genocide and crimes against humanity — specifically omits provisions restricting its scope to Australian citizens, and therefore applies to any person in any country, giving Australia universal jurisdiction over the crime of sedition.

Amendments

The following amendments were introduced to the Bill prior to its passage.

*(68) Schedule 7, item 4, page 109 (line 14), after an intention, insert to use force or violence.

*(69) Schedule 7, item 12, page 111 (line 11), omit subsection 80.2(2), substitute:(2) Recklessness applies to the element of the offence under subsection (1) that it is::(a) the Constitution; or:(b) the Government of the Commonwealth, a State or a Territory; or:(c) the lawful authority of the Government of the Commonwealth;that the first-mentioned person urges the other person to overthrow.

*(70) Schedule 7, item 12, page 112 (lines 6 and 7), omit , by any means whatever,.

*(71) Schedule 7, item 12, page 112 (lines 18 and 19), omit , by any means whatever,.

*(72) Schedule 7, item 12, page 113 (line 29), at the end of subsection 80.3(1) (before the note), add:

; or (f) publishes in good faith a report or commentary about a matter of public interest.

Penalties and Scope

The new laws more than double the maximum penalty for sedition from three years imprisonment to seven, and allow certain convictions relating to the use of force or violence on the basis of recklessness rather than proven intent.

However, the amended laws no longer include specific penalties for uttering seditious words, nor provisions relating to seditious enterprises, although the definition of seditious intent continues to apply in the determination of unlawful organisations. Additionally, all prosecutions for sedition (no longer just summary prosecution) now require the approval of the Attorney-General, although this does not apply to arrests.

Implications

The principal changes to sedition law in the proposed bill seem to involve:

* the inclusion of sedition along with the separate crime of treason under their new joint heading;

* an increase in the maximum penalties from three to seven years;

* the introduction of the concept of recklessness;

* the inapplicability of seditious intention to individuals not associated with an unlawful organisation;

* its extension to foreign citizens.

Perhaps most importantly, the “modernisation” of the laws seems to indicate that the government, apparently in the expectation of an increase in seditious activity, now intend to actively enforce laws which had been allowed to fall into disuse.

Review

The Anti-Terrorism Bill (No 2.) 2005 included provisions for a five-year review, and has a ten-year sunset clause. In addition, the Coalition backbench committee, in response to significant public outcry about the potential for the new legislation to stifle free speech and despite the government’s claims about a new and imminent threat necessitating the passage through both houses of the limited and specific Anti-Terrorism Bill 2005, successfully lobbied the government to introduce an earlier review of the sedition provisions and accept certain minor amendments.

The majority Senate committee report into the Bill, delivered on 28 November 2005, recommended amongst 52 proposed changes that the sedition provisions be removed from the Bill until after a review, claiming they were poorly drafted and undermined free speech, and that the existing law negated any urgency for their introduction. The report’s recommendations were dismissed by the government.

ALRC Review

In December 2005, The Attorney-General Phillip Ruddock foreshadowed an independent review of the amended sedition laws, and provided the Australian Law Reform Commission (ALRC) with formal Terms of Reference for this purpose on 2 March 2006 Australian Law Reform Commission Issues Paper 30, Review of Sedition Laws, includes detailed history, legislative review, questions section; register for sedition-related mailing list. In particular, the ALRC has been asked to examine:

* whether the amendments, including the sedition offence and defences in sections 80.2 and 80.3 of the Criminal Code, effectively address the problem of urging the use of force or violence;

* whether “sedition” is the appropriate term to identify this conduct;

* whether Part IIA of the Crimes Act, as amended, is effective to address the problem of organisations that advocate or encourage the use of force or violence to achieve political objectives; and

* any related matter.

In carrying out its review, the ALRC will have particular regard to:

* the circumstances in which individuals or organisations intentionally urge others to use force or violence against any group within the community, against Australians overseas, against Australia’s forces overseas or in support of an enemy at war with Australia; and

* the practical difficulties involved in proving a specific intention to urge violence or acts of terrorism.

On 20 March 2006 the ALRC, “committed to consulting as widely as possible, within the short timeframe provided”, released an Issues Paper and opened submissions until 10 April 2006 to feed the drafting of a discussion paper including legislative options and a final report with recommendations for tabling by the Attorney-General.

In May 2006 the Discussion Paper was released. Responsive public submissions to the inquiry close on 3 July 2006.

Opposition to the Provisions

Despite almost unconditional support for the remainder of the Anti-Terrorism Bill, by mid-November the main opposition Australian Labor Party (including two of the Premiers involved in the original COAG meeting) had joined several prominent Coalition backbenchers in calling for the removal of the Bill’s sedition provisions, and committed itself to their repeal in the event it gained government.

Incitement

At common law it is unlawful to incite a crime. Additionally, the Criminal Code Act (1995) specifically details the crimes of incitement and conspiracy, making it an offence to:

*incite, urge, aid or encourage; or

*print or publish any writing which incites to, urges, aids or encourages;

*the commission of offences against any Federal or Territory law or carrying on of any operation for or by the commission of such offences.

Incitement of or conspiracy to commit an act of sedition would therefore be punishable as a crime, although incitement to incite sedition is specifically not a criminal act under the Code.

Potential Defences

Despite the lack of a Bill of Rights in Federal law, it is possible that certain High Court decisions which imply freedom of political communication effectively provide a legal basis for seditious activity, although this presumption has not been tested.

CASE STUDY

The last major incidents in Australia appear to be action against Gilbert Burns and Laurence Louis Sharkey – aka Lance Sharkey – in 1949 and Brian Cooper in 1960, although sedition charges were apparently laid in Queensland during protests against the Vietnam War.

Sharkey had attracted attention as General Secretary of the Australian Communist Party and the putative author of effusions such as

We know Comrade Stalin as a great organiser, a man of action and of indomitable will. We know him as a great military strategist in all of the campaigns of the Red Army, including the present colossal conflict with the Fascists.

Comrade Stalin led the Russian Communists and the toilers of the Soviet Union to Socialism, successfully pointing the way to the overcoming of incredible obstacles. We know Comrade Stalin as a practical leader of genius.

In this short work and in his more comprehensive works, Stalin appears before us also as a theoretical leader. He appears as the continuer of the theoretical labors of Marx, Engels and Lenin. He is the foremost living Marxist-Leninist scholar, the Lenin of to-day. … In the difficult complicated task of building the new Socialist society, at every twist and turn of the long and hard road the Soviet workers had to travel, Stalin held aloft the “lamp of theory that lights the path for the feet of practice”, and solved the problems, in brilliant fashion, on the basis of Marxism-Leninism.

Prosecution centred on the charge that in March 1949, during a telephone conversation with a journalist, he

uttered the following seditious words: ‘If Soviet Forces in pursuit of aggressors entered Australia, Australian workers would welcome them. Australian workers would welcome Soviet Forces’.

The charge reflected Section 24D of the Commonwealth Crimes Act 1914-1946, establishing an indictable offence for a person to “write, print, utter or publish any seditious words” to

a) to bring the Sovereign into hatred or contempt;

b) to excite disaffection against the Sovereign or the Government or Constitution of the United Kingdom or against either House of the Parliament of the United Kingdom;

c) to excite disaffection against the Government or Constitution of any of the King’s Dominions;

d) to excite disaffection against the Government or Constitution of the Commonwealth or against either House of the Parliament of the Commonwealth;

e) to excite disaffection against the connexion of King’s Dominions under the Crown;

f) to excite His Majesty’s subjects to attempt to procure the alteration otherwise than by lawful means, of any matter in the Commonwealth established by law of the Commonwealth; or

g) to promote feelings of ill-will and hostility between different classes of His Majesty’s subjects so as to endanger the peace, order or good government of the Commonwealth.

Sharkey pleaded not guilty, claiming that he was responding to a question, rather than addressing a crowd. He was convicted by a jury and served 18 months of a three year prison sentence after an unsuccessful appeal to the High Court (R v Sharkey, 1949).

Gilbert Burns was charged with sedition over statements he made during a public debate in Brisbane about communism. He responded to a hypothetical question regarding the allegiance of the Australian Communist Party if the USSR went to war with the West. He was initially condemned by a magistrate under the federal Crimes Act 1914 before appealing to the High Court, where he argued in Gilbert v Ransley (1949) that his answer to the hypothetical could not establish the seditious intent required under the 1914 Act. His appeal was rejected by the High Court on the same day that the Court confirmed the jury’s conviction of Sharkey.

The last federal prosecution for sedition in Australia prior to 2005 was in 1960, when Department of Native Affairs officer Brian Cooper was prosecuted for urging “the natives” of Papua New Guinea to demand independence from Australia. Prosecution coincided with a federal general election in which Menzies was returned by a whisker

Earlier prosecutions included action against radical Henry Holland (1868-1933), jailed for sedition in NSW during 1909 over advocacy of violent revolution during the Broken Hill miners’ strike and jailed in NZ during the 1913 waterfront dispute.

Ballarat Times, Buninyong & Creswick Advertiser editor Henry Seekamp (1829-1864) was imprisoned for three months in 1855 over comments on Eureka Stockade, including calling on his “fellow-countrymen, on nature and on Heaven itself” for a “vengeance deep and terrible”.

He had earlier proclaimed that

Instead therefore of the diggers looking for remedies where none can be found let them strike deep at the root of rottenness and reform the Chief Government. What if we lop off the branches from an unwholesome trunk. Only unwholesome branches can spring. We must undermine the tree and burn it off. …

the die is cast, and fate has cast upon the movement its indelible signature. No power on earth can now restrain the united might and headlong strides for freedom of the people of this country … The League has undertaken a mighty task, fit only for a great people – that of changing the dynasty of the country.

LAW OF SEDITION IN OTHER COUNTRIES

SEDITION LAW IN NEW ZEALAND

In New Zealand current restrictions on sedition under the Crimes Act essentially prohibit only the advocacy of violence or disobedience to law.

It is not sedition to urge any change in the law, however radical, and political expression under the NZ Bill of Rights Act 1986 cannot be seditious. A school teacher was thus found not guilty of “disrespecting the flag” after incinerating one during an anti-war march in 2003.

Section 81 of the Crimes Act currently makes it an offence to

(a) To bring into hatred or contempt, or to excite disaffection against, Her Majesty, or the Government of New Zealand, or the administration of justice; or

(b) To incite the public or any persons or any class of persons to attempt to procure otherwise than by lawful means the alteration of any matter affecting the Constitution, laws, or Government of New Zealand; or

(c) To incite, procure, or encourage violence, lawlessness, or disorder; or

(d) To incite, procure, or encourage the commission of any offence that is prejudicial to the public safety or to the maintenance of public order; or

(e) To excite such hostility or ill will between different classes of persons as may endanger the public safety.

The right of jury trial in sedition cases was taken away in 1951, apparently over concerns that jury members might not share an anti-communist zeal, but was restored in 1960.

Prior to 2004, with action against activist Tim Selwyn for seditious conspiracy, there appear to have been no prosecutions over the past 50 years. Earlier prosecutions are highlighted later in this note.

Selwyn was jailed for two month in July 2006, having admitted to conspiring to commit wilful damage when an axe was embedded in Prime Minister Helen Clark’s electoral office window in November 2004. He had admitted in court to “having a hand” in separate statements – variously characterised as media releases and pamphlets – claiming responsibility for the attack and calling for “like minded New Zealanders to take similar action of their own”.

He was concurrently sentenced to 15 months on fraud charges, including obtaining the passport under a dead baby’s name, along with a birth certificate, benefits and four Inland Revenue Department numbers under the names of dead people. He used the false passport and birth certificate in 1993 and 1995 to gain NZ$11,141 in unemployment and accommodation supplement benefits.

SEDITION LAW IN CANADA

The Canadian regime derives from the UK.

Part II of the Canadian Criminal Code deals with ‘Offences against Public Order’. It includes sedition (ss. 59-61), treason (ss. 46-50), sabotage (s. 52), incitement to mutiny (s. 53) and an offence of intimidating Parliament or the legislature of a province by an act of violence (s. 51).

Seditious intention encompasses everyone who

a) teaches or advocates, or

b) publishes or circulates any writing that advocates,

the use, without the authority of law, of force as a means of accomplishing a governmental change within Canada.

In 1951 the Supreme Court of Canada – in Boucher v The King – held that although a leaflet by a Jehovah’s Witness was intended to engender protest and indignation against the government (including the courts), that alone was insufficient for a conviction –

An intention to bring the administration of justice into hatred and contempt or exert disaffection against it is not sedition unless there is also the intention to incite people to violence against it

SEDITION LAW IN UK

UK sedition law crystallised under the Tudors and Stuarts (eg the statutory offence of sedition was first created in 1606 by the Star Chamber’s 1606 de Libellis Famosis decision on seditious libel) after use of the more diffuse 1351 English Statute of Treasons, with elaboration during subsequent dynasties at times of crisis such as the Napoleonic Wars and chartist agitation.

Legislation under George III for example made it an offence to use any words to excite hatred and contempt of the king, government or constitution, particularly speech that might have a “tendency” to cause disloyalty in the armed forces. The Old Bailey Proceedings indicate that 50 people were tried for “seditious words” in London from 1688 to 1794; a greater number were sentenced and deported to destinations such as Australia during the following 50 years under legislation such as the 1819 ‘Six Acts’ in England (including the Blasphemous & Seditious Libel Act).

The Treason Felony Act 1848 made it a serious offence, punishable by transportation, to call in print or writing for the establishment of a republic, even by peaceful means. As of 2004 it remained in force (although last used in 1883), with life imprisonment as the maximum penalty.

UK anti-sedition legislation was strengthened during 1917 and throughout the century, although there were few prosecutions. The Terrorism Act 2000 outlaws certain UK and international terrorist groups, gives police enhanced powers to investigate terrorism (including wider stop & search and detention powers), and creates new criminal offences, including ” inciting terrorist acts”, “seeking or providing training for terrorist purposes at home or overseas” and “providing instruction or training in the use of firearms, explosives or chemical, biological or nuclear weapons”.

The 1351 Treason Act, as subsequently amended, indicates that a person is guilty of treason if, among other things, that person –

  • “levies war against the Sovereign in Her realm, or is adherent to the Sovereign’s enemies”, including conduct that tends to strengthen the monarch’s enemies and sending money to her enemies
  • “Compasses or imagines [i.e. plans] the death of the Sovereign”.
  • “violates the King’s wife or the Sovereign’s eldest daughter unmarried or the wife of the Sovereign’s eldest son and heir”, with or without the consent of those women
  • “Slays the chancellor, treasurer, or the king’s justices” while carrying out their duties.

It applies to anyone who owes allegiance to the Crown, including all British subjects, any non-citizen resident within the realm, any resident alien who goes abroad leaving family or effects within the realm or using a British passport.

Application of the law has varied. English courts held in 1477 that it was treason for a person to use magic to prophesy the monarch’s death, on the basis that the King’s life might be shortened by the grief the prophesies caused him.

Treason, under the Succession Act of 1534, included acting or writing anything to the prejudice, slander, disturbance, and derogation of Henry VIII’s marriage to Anne Boleyn. That Act became inconvenient when Anne lost her head in 1536; it then became treason to slander Henry’s marriage with Queen Jane. A second Treason Act of 1534 made it possible to commit treason

through a private expression of opinion, with Sir Thomas More for example being convicted for evasive responses to questions about the head of the Church. A 1541 statute (repealed in 1547 as “very strait, sore, extreme and terrible”) extended treason to include failing to alert the King to the sexual incontinence of his future bride.

As recently as 2003 the law lords upheld an attempt by UK Attorney General Lord Goldsmith to halt the Guardian‘s attempt to declare section 3 of the Treason Felony Act 1848 incompatible with the Human Rights Act 1998 on the grounds that the older enactment was an obstacle to freedom of speech.

The 1848 Act makes it a criminal offence, punishable by life imprisonment, to advocate abolition of the monarchy in print, even by peaceful means. At the time of passage it featured provisions that

If any person whatsoever shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen, … from the style, honour, or royal name of the imperial crown of the United Kingdom, or of any other of her Majesty’s dominions and countries, or to levy war against her Majesty … within any part of the United Kingdom, in order by force or constraint to compel her to change her … measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom or any other of her Majesty’s dominions or countries under the obeisance of her Majesty … and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing … or by any overt act or deed, every person so offending shall be guilty of felony, and being convicted thereof shall be liable to be transported beyond the seas for the term of his or her natural life.

THE “SEDITION LAW” SECTION 124-A OF THE PAKISTAN PENAL CODE

Section 124-A of the Pakistan Penal Code is commonly known as the “Sedition Law.” It states: “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Federal or Provincial Government established by law shall be punished with imprisonment for life to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

Several lawyers have been charged under this law, but given the seriousness of the charge, evaded arrest by going into hiding. In April 2004, an opposition leader, Makhdoom Javed Hashmi, was sentenced under this law to 23 years in prison at Musharraf’s behest. His release was ordered by the now deposed Supreme Court in August 2007.

LAW OF SEDITION IN EUROPE

Other European states feature legislation restricting sedition and incitement or endorsement of terrorism.

In 2006 for example Spain’s High Court jailed Basque politician Arnaldo Otegi, leader of the outlawed pro-separatist Batasuna party, for 15 months for “glorifying terrorism” by praising Eta leader Jose Miguel Benaran Ordenana at a memorial service in 2003. He was also banned from standing for political office or voting for seven years. Otegi is thought to have played a decisive role in persuading Eta armed separatists to declare a permanent ceasefire. He denied that his homage amounted to glorification of terrorism or Eta: “My message was only an act of remembrance for a person murdered 25 years ago for political reasons”. He had been sentenced to a year’s imprisonment in 2005 for insulting Spain’s monarch, whom he accused of being “responsible for torturers”, but the term was waived as “a first offence”.

SEDITION BEFORE THE INTERNET

Historically the legal codes of most nations have featured explicit restrictions on sedition, ie against advocacy of overthrowing those in power or merely disrespect for their persons and status. Those restrictions have often been broad-ranging and selectively applied. They have often been complemented by legislation that is specific to particular organisations, causes or media.

In the West such restrictions have waxed and waned, reflecting anxieties about jacobinism, anarchism, fascism, pacificism, communism, and contemporary terrorism.

They have also evolved over the past 500 years. Notions of treason, sedition and revolt in early modern western states centred on the monarch, encompassing offences such as taking up arms against the king, refusing to recognise the monarch’s authority (eg refusing to pay taxes, respect magistrates or disperse when ordered) and sleeping with the king’s wife. They also encompassed writing, publishing and disseminating treasonous libels – often broadly construed as including denial of a monarch’s legitimacy and questions about a particular religious orthodoxy (as the monarch was God’s vicegerent on earth).

Those states have grappled with questions about action, idea, association and responsibility. Most have increasingly differentiated between ideas – “it is not the task of government to discern what is in mens’ hearts ” – and action, while being ambivalent about speech and association. Some for example have proscribed specific organisations and even sought to criminalise membership, on the basis that membership signals a commitment to overthrow the established order and an acceptance of responsibility for actions by individual members.

Legislation under George III for example made it an offence to use any words to excite hatred and contempt of the king, government or constitution, particularly speech that might have a “tendency” to cause disloyalty in the armed forces. More recently the UK government banned representatives of the IRA from speaking on British television.

Restrictions in Australia, New Zealand, the UK, US and elsewhere over the past century have encompassed the –

  • proscription of specific organisations
  • criminalisation of particular speech (eg attempting to subvert a nation’s armed forces and law enforcement personnel, advocacy of pacifism during times of war or criticism of action by a government and the nation’s allies)
  • censorship of publications and broadcasts as likely to threaten public order

Recent use of sedition law has not been confined to those who practice violence. In Singapore and Malaysia it, along with defamation action, has has been used to dampen criticism by journalists and opposition politicians. In China it has been used against the Falun Gong sect and against those who dare to question the Communist Party’s monopoly of power. It provides for criminal sanctions against critics of the Ba’ath Party in Syria. In Tonga and Saudi Arabia it has been used to squelch comment on endemic corruption among the ruling families.

CONCLUSION

The law on sedition seems quite prone to abuse. It does say that mere criticism of the government does not amount to sedition if it does not incite people to disobey it and lead to anarchy—but, in fact it seems to support the tendency of the powers-that-be to hold themselves beyond reproach. Sedition is often defined as the intentions to promote feelings of ill-will or hatred between different races, classes or religious groups within the country. In democratic societies, the law usually recognises that it is all right to question decision by the head of the state, government or parliament as long as this is done in good faith with a view to correcting errors or defects. Political comment, even in strong terms, is acceptable, as long as it is doe with the intention of attempting to overthrow the government or legal system by unlawful means. in democracies, you can write that your country would be better of under a different government, but you cannot advice your readers or listeners to burn ballot boxes or to intimidate voters. sedition laws make a distinction between talks about changing government (the free speech aspect) and practical actions which might lead to overthrow of a government (the criminal element). in such societies, sedition laws says citizens can be vehement about political change but they must not do anything to achieve it by illegal means, such as a coup or rebellion. Furthermore, steps should be taken to bring about an end to political victimization and to allow parliamentarians, opposition party members, media, human rights organization and any other person or body highlighting issues critical of the government the freedom to express themselves openly without fear of retribution, legal or otherwise. Sedition is not determined so much by the meaning of words as by the way they are presented. The law will not usually act against a genuinely held opinion, as long as it is expressed in moderate language

Freedom of the Press (with somewhat of an evolution and history)

The Freedom of the Press is something that Indian journalists and media representatives have struggled long and hard for over the years. It has taken hundreds and hundreds of years for India to attain a state even close to relative freedom of the press.

During the British rule, reasonable restrictions were imposed on the press in order to curb them from spreading or propagating any sort of information that could be detrimental to their rule over the country. At a time when the need for freedom was burgeoning, the early 19th century saw a boom in the press, especially a boom in newspapers that were willing to challenge British ideology and propagate ideas of freedom and self-rule. The British sought to take these notions to task and imposed various Acts, one of the very first of those being the Press and Registration of Books Act of 1867. This Act made it compulsory for any individual looking to start a publication or publish a book to make a declaration stating the intent of publication and declaring all the people involved, even the printing press. Journalists were frequently thrown in jail and newspapers were shut down for going against British rule. After the revolts started to grow, the British imposed the Vernacular Press Act of 1878, which was able to slow down the publications of many regional journals and close off printing presses. Of course, some of the smarter publications switched to English and started being a little more subtle with their digs at the colonialists to slip their gaze and be able to propose their ideologies anyway. The freedom of the press suffered another speed bump in 1975 when the Emergency hit and the Prevention of Objectionable Matter Act was passed, censorship was imposed, presses were shut down and the Press Council Act was repealed. However, by 1978, things started going back to a normal, the Prevention of Objectionable Matter Act was repealed a new Press Council Act was instated.

The first notion of true freedom for the press only came once India attained its freedom in 1947. When the Constitution was created and implemented in 1950, one of the very Fundamental Rights itself, the Right to Freedom, stated the freedom of the press in Article 19 (1) (a). Article 19, clause 1 mentioned several freedoms that were accorded to the citizens of India, which include:-

a)     Freedom of speech and expression

b)     Assemble peacefully and without arms

c)     Form associations or unions

d)     Move freely throughout the territory of India

e)     Reside and settle in any part of the territory of India

f)      Acquire, hold and dispose of property

g)     Practice any profession, or to carry on any occupation, trade or business.

Now sub-clause (a) has been interpreted to also represent the freedom of the press, as the term ‘expression’ also includes circulation, propagation and publication of views and opinions, along with being able to speak and present whatever a citizen wants to. While there is no explicit mention of the freedom of the ‘press’ in particular, this is something that has been reinforced by the Supreme Court on numerous occasions, some noteworthy ones being Romesh Thappar vs the State of Madras, Brij Bhusan vs the Union Territory of Delhi, Sakal Papers vs the Union of India and Indian Express Papers vs the Union of India, to name a few. This is unlike a country like the USA, in which the First Amendment expressly states “The Congress shall make no law….abridging the freedom of speech or of the press…”

Of course, clause 2 of the same article imposed certain restrictions, stating “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offence.” In short, this sub-clause states that the freedom of speech and expression and, therefore, the freedom of the press, cannot hinder or go against any existing laws, and the government even has the power to make any laws that restrict this freedom if it feels that it needs to do so for national security, integrity, defamation, contempt of court, incitement, morality or other bases as listed.

Now what does that say about the freedom of the press in India? What it mainly says is that this freedom is not absolute. There are certain restrictions that have been imposed on the press, like in 19 (2), the Official Secrets Act, Article 361A (publication of a substantially true report of the proceedings of the house, but cannot publish report on a secret sitting), Contempt of Courts Act and others. Also, since the Indian press is being accorded the status of an ‘Indian citizen’ by being made a part of the ‘Freedom to Speech and Expression’ right, it does have the same restrictions that a citizen of India would. This means that it should strike a balance between individual rights and social control, wherein it cannot publish anything that would prove detrimental to society or incite others or disrupt public order. This is the same kind of restriction that is imposed on the citizens of India. Also, if the news organizations are considered akin to companies or industries, it does have to adhere to the same rights as these companies, like the Indian Industries Act. Even in the United States, several state legislatures do have or pass laws that can restrict the rights of the press if it is in the interest of national security or public good.

This has led to a debate on the fact that whether there is actual freedom of press in India or not. Some say that there isn’t, due to all the restrictions placed on it and the fact that there is no explicit mention of the ‘press’ in the Freedom Rights. On the other hand, some argue the validity of the press being a means of ‘expression’ and remind us of the way the press is flourishing in India. However, we can see now how more and more of the press is becoming more business and profit oriented, and there are restrictions being placed on them not by laws, but by advertisers responsible for their revenue, by the public responsible for their readership, and by their competition responsible for their stature.

Whether the press in India is truly free or not is up to anyone’s debate, but as a fourth pillar of the Indian democracy, it is pretty damn important!

ROLE OF AN ENVIRONMENT JOURNALIST

1. The right to a clean environment and sustainable development is fundamental and is closely connected to the right to life and good health and well being. The environmental journalist should inform the public about the threats to the environment – whether it is at the global, regional, national or local level.

2. Often the media is the only source of information on the environment. The journalist’s duty is to heighten the awareness of the public on environmental issues. The journalist should strive to report a plurality of views on the environment.

3. By informing the public, the journalist plays a vital role in enabling people to resort to action in protecting their environment. The journalist’s duty is not only in alerting people about their endangered environment at the outset, but also in following up such threats and keeping them posted about developments. Journalists should also attempt to write on possible solutions to environmental problems.

4. The journalists should not be influenced on these issues by vested interests – whether they are commercial, political, and government or non-governmental. The journalist ought to keep a distance from such interests and not ally with them. As a rule journalists should report all sides in any environmental controversy.

5. The journalist should as far as possible cite sources of information and avoid alarmist or speculative reportage and tendentious comment. He or she should crosscheck the authenticity of a source, whether commercial, official or non-governmental.

6. The environmental journalist should foster equity in access to such information and help organizations and individuals to gain it. Electronic retrieval of data can provide a useful and egalitarian tool in this regard.

7. The journalist should respect the right of privacy of individuals who have been affected by environmental catastrophes, natural disasters and the like.

8. The environmental journalist should not hesitate to correct information that he or she previously believed was correct, or to tilt the balance of public opinion by analysis in the light of subsequent developments.

                                          Property Disputes

                                                                                                              Subject: Press Laws and Ethics

Property is that which is had by or belongs to/with something, whether as an attribute or a component. It  is one or more components, whether physical or incorporeal, of a person’s estate; or so belonging to, as in being owned by, a person or jointly a group of people or a legal entity like a corporation or even a society. Depending on the nature of the property, an owner of property has the right to consume, alter,share,rent,mortgage, pawn,sell, exchange,transfer,give away or destroy it, or to exclude others from doing these things, as well as perhaps to abandon it; whereas regardless of the nature of the property, the owner there of has the right to properly use it, or at the very least exclusively keep it.

Property that jointly belongs to more than one party may be possessed or controlled thereby in very similar or very distinct ways, whether simply or complexly, whether equally or unequally. However, there is an expectation that each party’s will with regard to the property be clearly defined and unconditional, so as to distinguish ownership and easement from rent. The parties might expect their wills to  be unanimous, or alternately every given one of them, when no opportunity for or possibility of dispute with any other of them exists, may expect his, her, its or their own will to be sufficient and absolute. The Restatement of Property defines Property as any thing, tangible or intangible whereby a legal relationship between persons and the State enforces a possessory interest or legal title in that thing. This mediating relationship between individual, property and state is called as property regimes.

Important widely recognized types of property include real property (the combination of land and any improvements to or on the land), personal property (physical possessions belonging to a person), private property (property owned by legal persons, business entities or individual natural persons), public property (state owned or publicly owned and available possessions) and  intellectual property (exclusive rights over artistic creations,inventions, etc.), although the latter is not always as widely recognized or enforced. An article of property may have physical and incorporeal parts. A title, or a right of ownership, establishes the relation between the property and other persons, assuring the owner the right to dispose of the property as the owner sees fit property and anything that is owned by a person or entity.

Property is divided into two types: “real property” which is any interest in land, real estate, growing plants or the improvements on it, and “personal property” (sometimes called “personalty”) which is everything else. “Common property” is ownership by more than one person of the same possession. “Community property” is a form of joint ownership between husband and wife recognized in several states. “Separate property” is property owned by one spouse only in a community property state, or a married woman’s sole ownership in some states. “Public property,” refers to ownership by a governmental body such as the federal, state, county or city governments or their agencies (e.g. school or redevelopment districts). The government, and, in particular, the courts are obligated to protect property rights and to help clarify ownership.

A property tax (or millage tax) is a levy on property that the owner is required to pay. The tax is levied by the governing authority of the jurisdiction in which the property is located; it may be paid to a national government, a federated state, a county/geographical region, or a municipality. Multiple jurisdictions may tax the same property.Under a property tax system, the government requires and/or performs an appraisal of the monetary value of each property, and tax is assessed in proportion to that value. Forms of property tax used vary among countries and jurisdictions. Real property is often taxed based on its classification. Classification is the grouping of properties based on similar use. Properties in different classes are taxed at different rates. Examples of different classes of property are residential, commercial, industrial and vacant real property. In Israel, for example, property tax rates are double for vacant apartments versus occupied apartments.

A special assessment is sometimes confused with property tax. These are two distinct forms of taxation: one (ad valorem tax) relies upon the fair market value of the property being taxed for justification, and the other (special assessment) relies upon a special enhancement called a “benefit” for its justification.The property tax rate is often given as a percentage. It may also be expressed as a per mil (amount of tax per thousand currency units of property value), which is also known as a millage rate or mill (which is also one-thousandth of a currency unit). To calculate the property tax, the authority will multiply the assessed value of the property by the mill rate and then divide by 1,000. For example, a property with an assessed value of 50,000 located in a municipality with a mill rate of 20 mills would have a property tax bill of 1,000 per year.

Property law is the area of law that governs the various forms of ownership and tenancy in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate or real property, and the associated rights and obligations thereon.

Property disputes are a common occurrence in India. Since greed is a great leveller, wars over wealth take place across the strata, from low-income households to ultrarich families. Even an iron-clad will may be challenged by unhappy beneficiaries. The obvious solution for most squabbling relatives is to take the matter to the courts. However, that is a time-consuming, tedious and expensive process, which in no way guarantees a satisfactory resolution. A far more amicable, and pocket-friendly, solution is to opt for a family settlement. Here is a ready reckoner.

In a nutshell, a family settlement is an agreement where family members mutually work out how a property should get distributed among themselves. All the parties should be related to each other and have a claim to a share of the disputed property. The latter need not be limited to real estate, but can also cover movable assets like jewellery or money in bank accounts. A family settlement is usually used to settle common property or joint property that the family owns as opposed to individual or self-acquired property.Those who wish to avoid protracted, public and messy court battles will find that family settlements are a quicker, more harmonious way to resolve disputes. Of course, a family may not be able to reach a consensus, in which case the legal recourse is the only way out.

This is a conciliation process where a third person, usually a lawyer or a senior family member, helps the family arrive at a mutually acceptable solution to the property dispute. A family settlement need not strictly be a single document incorporating the distribution of assets. It may also be a series of documents spelling out the property rights of each family member.Say, a family of two brothers and a sister are squabbling over a flat, an office and some ancestral jewellery. They could draw up a settlement agreement stating that the oldest brother gets the flat, the sister bags the jewellery and the office goes to the remaining sibling.

The most important thing to remember is that this instrument is neither treated as a gift nor as a transfer as per the Income Tax laws. So one would have to draw up separate transfer of property documents in addition to the family settlement agreement—to bring about an actual transfer. This is where instruments like gift and sales deeds come into play. The tax factor must be considered when deciding on a transfer of property document. For instance, if you use a gift deed to transfer property to relatives, there is an income tax component.Similarly, a sales deed may invite capital gains tax. However, so long as no transfer takes place, the parties to a family settlement won’t be subject to capital gains tax in respect of the profits derived from their share of the property.

Merely reaching a consensus is not enough; there are a few legal formalities that must be completed to ensure that the agreement is valid. Firstly, the settlement document must be signed by all the family members involved. A missing signature can easily become ground for challenging the document in court at a later date. In addition, as a safety measure, the document should be attested by two witnesses, though it is not mandatory.The next step is to register the agreement. According to Section 17 of the Indian Registration Act, a family settlement that purports to assign immovable property must be mandatorily registered or the deed would be invalid. A stamp duty is applicable on such deeds and the amount would depend on the value of the property involved.

While a duly executed family settlement cannot be revoked, except with a court decree, it can be challenged in a court of law. An agreement that is brought about by fraud or coercion is a case in point. Any misrepresentation of facts regarding the title of the disputed property, too, can lead to future altercations. Another common ground on which it is challenged is improper execution. Paying heed to these common tripwires while drawing out an agreement will result in a full proof, amicable and binding family settlement, which benefits everybody.

Owing to the hierarchical nature of Indian families, property disputes are a customary occurrence.The Transfer of property in India, within a family, is governed by numerous Acts and Rules, depending on how the property was acquired in the first place.

Usually, property is acquired within a family, when it passes from one generation to the other. The Rules governing these transfers are Transfer of Property Act, 1882, The Indian Succession Act, 1925, The Hindu Succession Act, 1956 and the Registration Act, 1908.In a family setting, the various modes through which acquisition of property can take place are:

Will – An instrument which is enacted by a person while he is still alive, but which is to take effect only after his death.

Succession– This is the natural way of acquiring some property and it operates as per the rules prescribed under the Succession Acts. Intestate succession is the automatic succession in the absence of a Will.

Gifts– Done through the execution of a gift deed by the owner in the favour of another family member.

Property disputes in family and solutions:

The property disputes that arise normally pertain to property belonging to a Hindu Undivided Family, Partition of property among successors, Interpretation of Wills, Ancestral property etc.The immediate property solutions sought by most families is court settlements.

It is also imperative to understand that taking matters to the court involves a huge amount of time, money and effort.An easier alternative could be a family settlement, where the family members involved in the squabble settle it out mutually among themselves.Such an amicable settlement is enforceable by a court of law, as it is accompanied by a few legal formalities.These requirements include mandatory signatures from all parties involved to show a settlement arrived at by the free will of all concerned. Also, unless the said deed is registered under the Registration Act, it would be deemed invalid.

Successions

Succession involves the transfer of assets and liabilities from a deceased individual to one or more living individuals. The estate is opened at the domicile of the deceased.

·        The settlement of (intestate) succession begins upon the death of a person who has passed away without leaving a valid will. In this case the assets are distributed as per the provisions set out in the Civil Code.

·        A succession based on a will occurs when the deceased has decided, by means of a will, to assign all or part of his estate (appointment of heirs).

·        Contractual succession occurs when succession is attributed by virtue of a deed of gift which takes effect after the death of the donor (e.g. stipulation in a premarital agreement).

Wills

A will is a deed whereby a person, referred to as the testator, disposes of all or part of their assets from the time of their death. Testators can always revoke their will.

To dispose of their assets via a will, testators must be of sound mind and body. A minor under 16 years of age may not, in principle, make a will. Minors aged over 16 may dispose of half of their assets via a will. The law does not permit more than one person to draw up their wills in the same legal document.

Gifts

A gift is a deed by which a person gives another person an asset.

·        A gift between living persons is, by definition, an act of giving performed while both the donor and recipient are alive. This legal act entails the donor immediately and irrevocably parting with the donated asset to the recipient, who accepts it. In principle a donation is irrevocable, since the recipient has accepted the gift. However, gifts may be revoked if the recipient does not meet the requirements or in the event of ingratitude.

·        Donation by will is a legacy, whereby the donor is dead at the time the gift is made. Unlike a gift between the living, making a will is a unilateral act whereby a person disposes of their assets from the moment of their death.

Types of legacies:

·        a general legacy by which one or more people inherit the entire estate;

·        a general legacy by which the testator leaves part of their estate, for example one third, all moveable or immoveable property, or half of their immoveable property, etc;

·        a particular legacy by which the heir receives a sum of money, a particular asset or a category of assets, such as an antique wardrobe or all the books owned by the deceased.

Belgian law attributes a set part of the inheritance (known as the reserve) to certain heirs (children, the surviving spouse and ascendants). The rest of the inheritance may be disposed of freely to the benefit of third parties. If the legacies exceed the part available, they will need to be reduced.

·        The inheritance of moveable property is governed by the law of the deceased’s last domicile, whereas the inheritance of immoveable property is governed by the law of the place where the property is located. This may, on occasion, lead to a split inheritance of moveable and immoveable items. Since several different laws are applicable in such a case, the available share of the inheritance may be affected.   

The Statute: This act may be called as “POWER OF ATTORNEY ACT, 1882”,which was passed in the year 1882 on 24th feb and the act came into force on first day of May, 1882. This act applies to the whole of India except State of Jammu & Kashmir. The main aim of passing this statute is to make it easy for your designated attorney to access your finances and, in that way, take care of your property.

Definition: According to the ‘Section: 1A’ of “POWER OF ATTORNEY ACT, 1882”, “A ‘Power Of Attorney’ includes any instruments empowering a specified person to act for and in the name of the person executing it”.

Meaning: The term ‘Power Of Attorney’ is an authority given by an instrument by one person, called as the donor or principal, authorising another person, called donee or agent to act on his behalf. There may be possibility of giving ‘Power Of Attorney’ by two or more persons jointly to one or more persons. Here a legal authority is given by the principal to the agent which may be broad or limited and an agent can take all necessary decisions i.e. financial, property related matters and all other matters where principal cannot be present to sign or in the case of principal’s illness and disability. A paper signed by principal giving powers to an agent is sometimes itself called a power of attorney. A paper giving a power of attorney should be clear and understandable.

Importance of Power of Attorney: A power of attorney document is an extremely important part of estate planning yet one of the most misunderstood. It is often convenient or even necessary to have someone else act for you as there is advancement in the business and commerce transactions. As many people confuse the power of attorney (POA) with a will (Probate), but these documents are two very different things and have two very different functions. A will comes into effect on the day person die. A POA applies during a person’s lifetime and ceases to apply when he dies. So you actually need both a POA and a will as they complement, and do not overlap, each other. To add a twist to the subject, there are two types of POA: one for property and one for personal care. These two types are completely separate. They deal with different areas of your life and both are required for effective estate planning.

Classification of Attorney: The Power of Attorney can be classified into two categories which includes:

I. General Power of Attorney: A general power of attorney is one by which an instrument is executed by the principal authorising the agent to do certain acts in general on his behalf. The word ‘General’ here means that the power must be general regarding the subject matter and not general with regard to powers in respect of a subject matter. If the subject matter is not general but restricted to something either specific or specifically mentioned by the principal while drafting an instrument then it will not constitute a general power of attorney. It is otherwise called as limited power of attorney.

II. Special Power of Attorney: A special power of attorney is one by which a person is appointed by the principal to do some specified act or acts. In this type of power of attorney, an agent conferred with a power to do specific act in a single or specified transactions in the name of the principal.

III. Durable Power of Attorney: A Power of Attorney which specifically says otherwise, agent’s power ends if principal become mentally incapacitated. However, a power of attorney may say that it is to remain in effect in the event of future incapacity of the principal. A power of attorney that says this is called a durable power of attorney.

To ascertain whether power of attorney is of general or special in nature, the subject matter in respect of which power is conferred Is to be seen accurately. The power of attorney is the unilateral document wherein donor or the principal gives authoritative power to the agent by signing the document and the agent’s sign is not always required.

Persons Competent To Execute: A power of attorney can be executed by any person who is competent to enter into a contract. However, the married women can execute powers of attorney even if they are minors. A company while executing power of attorney must make conformity with the ‘Articles of Association’ and its common seal. A person must be competent to give power to the appointed person so that it will not affect the legality of the instrument/deed of power of attorney.

Authentication of power of Attorney: As per Indian law, a power of attorney is a legal document that has to be properly framed, using the right legal terminology and setting out the objectives and responsibilities that you wish to authorise the appointee to carry out on your behalf. If a person wants to authorise someone to act as a power of attorney on his behalf, it must be signed and notarised by a certified notary advocate, who is able to declare that you are competent at the time of signing the document to issue the said power of attorney. You will need to show your ID to the notary advocate before he/she is able to certify and issue the document. It must be executed and authenticated by the registrar or sub-registrar of assurances as per the ‘Registration Act, 1908’.

Presumption About Power of Attorney: A power of attorney is legal written document which has more legal value and the authenticated attorney will be presumed by the court as legal document under ‘Indian Evidence Act, 1872’. According to the Section: 85 of ‘Indian Evidence Act, 1872’, which provides that the court shall presume that every document purporting to be a power of attorney, and has to be clearly authenticate and executed before the notary or magistrate. If there is any issue arises concerning to the genuineness of the attorney then proof of its execution can be called for the verification.

Language of The Power of Attorney: An instrument of power of attorney must always use the language known to the donor and if the donor is an illiterate person then scribe and identifier should explain all the contents of the document in the language known by the donor and it has to be certified by the donor that he has understood all the contents and then he has to put thumb mark on the document. Lastly the administrative officer will take the oath from the donor stating that he knows all the contents of the document and he knows the identifier. A sign and seal must be put by the administrative officer after complete verification of the document.

Original Documents To Be Verified: A power of attorney which is accurately authenticated by the notary or any magistrate, an affidavit has to be filed with all the original documents of the power of attorney authorising an agent to do certain acts. All the documents will be verified by the court and then court will register power of attorney by putting seal and sign. It is very much essential to make the power of attorney valid.

Powers of Attorney by Two or More Persons: A power of attorney may be executed by two or more persons jointly in favour of one or more persons and when there are several persons as attorneys a complete authorisation in letter to be given by one of them for acting severally. A clause should be included while drafting the deed of power of attorney that all the attorneys should act jointly or separately.

Duration of Granted Power: A general power of attorney remains in force unless expressly revoked or determined by the death of either of the party. A special power of attorney will be in force until the specified act is not completed. Duration of the power will depend upon the type of the attorney or there may be a fixed period of power granted by the principal which must be included in the deed.

Revocation of Power of Attorney: A power of attorney may be revoked at any time by the principal or donor by giving a written notice to the agent, unless it is for a particular fixed period. Revocation usually possible when principal dies or becomes insane or becomes bankrupt. The principal himself can revoke power of attorney if the business for which the agent was appointed is over as mutually agreed upon by the principal and agent. In case if principal has named a spouse or registered domestic partner as his agent, his or her authority to act under the power of attorney is automatically terminated in the event of divorce, legal separation or termination of the registered domestic partnership.

Registration: A power of attorney is not compulsorily registrable unless it creates an interest in any immovable property i.e. charge in favour of donee. Registration of power of attorney is optional In India, where the ‘Registration Act, 1908’, is in force, the Power of Attorney should be authenticated by a Sub-Registrar only, otherwise it must be properly notarized by the notary especially where in case power to sell land is granted to the agent. If a power of attorney is in respect of an immovable property of value more than Rs100 it must be registered. Registration of power of attorney authenticates the deed of power of attorney.

Stamp Duty: A power of attorney is chargeable under Section: 48 of Schedule 1 of the ‘Indian Stamp Act, 1899’. A stamp duty has to be paid compulsorily by the principal or donor in the jurisdictional registrar’s office.

Legal Powers Which Can Be Granted To The Attorney: Broadly speaking a power of attorney provides an agent “all powers that the principal has” to manage the principal’s financial affairs or make health care decisions may be enough for many purposes. An agent may be authorised to:

i. To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders.

ii. To manage, compromise, settle, and adjust all matters pertaining to real estate.

iii. To lease, collect rents, grant, bargain, sell, or borrow and mortgage.

iv. To sell any and all shares of stocks, bonds, or other securities.

v. To file, sign all tax returns, insurance forms and any other documents.

vi. To enter into contacts, and to perform any contract, agreement, writing, or thing to make, sign, execute, and deliver, acknowledge any contract, agreement.

vii. To make health-care decisions for the donor or his minor children.

viii. To sue on behalf of the principal.

Qualifications of An Attorney: It is the duty of the Principal to appoint a responsible person as agent who should act with utmost good faith. An attorney is a person who has been appointed by the donor to act on his behalf. An ideal attorney is that who must be willing to act in that capacity and he has to be impartial having integrity. An attorney should be loyal to the donor and should not disclose any confidential matters related to the business.

Duties of The Attorney Holder: An attorney holder is a person who is authorised by donor legally. An attorney must not exceed the authority given under the power of attorney. If the attorney does exceed their authority, he or she may be liable for any damages suffered by the donor or others. The attorney may, however, do all those acts which are authorised, but only by a particular method, if the power of attorney so indicates. If there is a breach of any condition by the attorney then he shall be liable to the donor except in a case where he has acted reasonably. If there is some doubt as to the wording of the power of attorney, a solicitor should always be consulted. The attorney holder must also act towards the donor with the utmost good faith and tell the donor the nature and extent of any interest which may conflict with his or her duty. An attorney may pass on his or her powers and duties to another person but only if authorised to do so by the power of attorney

Other Related Aspects:

1.     Construction Rules: The general rule of power of attorney is that it should be strictly construed. Unless an express power is conferred on an agent to enter into contracts of guarantees on behalf of his principal or to execute or negotiate, negotiable instruments for his principal jointly with others. An agent cannot by his acts bind the principal to a larger extent than he is empowered to do under the power of attorney. He cannot be sued or otherwise held responsible for fraud by the agent. If the power does not authorise the agent to carry on a business except with limitations any act done by him in excess of such power will not bind the principal. For example power to dispose of property does not confer a power to mortgage the property. Power to manage immoveable property cannot permit principal’s ornaments which are a moveable proper.

2.      Drafting of Power of Attorney: A deed of power of attorney must be construed so as to include all powers necessary for its execution. There is no legal requirement that a power of attorney be prepared or reviewed by a lawyer. However, if important powers are going to be given to an agent, it is wise to get individual legal advice before signing a complicated form. A person who signs a power of attorney without fully understanding what it means, and without considering risks and alternatives, is asking for trouble. So a power of attorney must be drafted carefully and after knowing all its clauses written in the deed document.

3.Risk Involved In Granting Power of Attorney: With a power of attorney, an agent is often entrusted with important decisions. And the agent may have access to some or all of Principal’s money or other property. If the agent is not trustworthy, serious problems can result. For example, if the agent is dishonest and runs away with Principal’s money, it may be difficult or impossible to get the money back. An agent is not permitted to use principal’s property for his or her own benefit unless he is expressly authorised to do so. Also, a principal will ordinarily be bound by the agent’s acts (even foolish acts) and will be responsible for the agent’s negligence while the agent is acting for the principal. For example, if an agent is authorized to manage your financial affairs and signs a contract to purchase something on your behalf, you will ordinarily have to pay for it, like it or not. It is obviously important to choose a trustworthy agent; if no trustworthy candidate is available, a power of attorney should not serve its purpose.

Conclusion: A power of attorney is very essential legal document which can be admitted as a evidence in the court of law whenever there is any breach of trust by the attorney holder. It’s therefore essential that principal has great confidence in his designated attorney. An agents must be someone principal can trust, without reservation, to use his property for him and not for themselves, or anyone else.

Lok Adalat is a system of alternative dispute resolution developed in India. It roughly means “People’s court”. India has had a long history of resolving disputes through the mediation of village elders. The system of Lok Adalats is based on the principles of the Panch Parmeshwar of Gram Panchayats which were also proposed by Mahatma Gandhi. The idea of Lok Adalat was mainly advocated by Justice P.N. Bhagwati, a former Chief Justice of India. Lok Adalat is a non-adversarial system,, whereby mock courts (called Lok Adalats) are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee. They are held periodically for exercising such jurisdiction as they determine. These are usually presided over by retired judges, social activists, or other members of the legal profession. The Lok Adalats can deal with all Civil Cases, Matrimonial Disputes, Land Disputes, Partition/Property Disputes, Labour Disputes etc., and compoundable criminal Cases. The first Lok Adalat was held in 1985 in Delhi where more than 150 cases were solved within a day.

Property sales through the common practice of general power of attorney (GPA) will not give ownership title to the buyer.In a landmark judgment that is expected to send a large number of property owners into a tizzy, the Supreme Court held that the GPA method of immovable property sales is not a valid form of transfer of property.A three-judge bench presided over by Justice R. V. Raveendran said that property can be lawfully transferred only through registered sale deeds.”A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property,” the bench said, after interpreting various provisions of the law concerning property sales. However, the bench said the judgment will not affect “genuine transactions” under the GPA.

The judgment delivered on Wednesday would have an impact on both freehold and leasehold properties and affect the mode of transfer of property in Delhi and the National Capital Region (NCR) where GPA sales are very common. Even though it can cause some hardship to those who have already purchased property through the GPA, the order will help curb evasion of duties, flow of black money into real estate and also save people from being cheated by unscrupulous owners selling the same property to several people.

The court’s decision will help to curb the circulation of black money to some extent in the real estate sector where titles are manipulated. Besides, many property transactions where prices are rounded off will be affected. However, overall there won’t be any significant impact on normal property sales.The apex court said there can be no mutation of property in municipal and revenue records on the basis of such documents. The bench, however, clarified that its order should not be a ground for disturbing mutations already effected by the Delhi Development Authority (DDA) or any other authority.

But, there is little relief for thousands of people who hold property without mutation as GPA sales can only be treated as existing sale agreements. An application of the order with prospective effect would have protected their interest. The court, though, stressed that it had merely reiterated the well- settled legal position that such transactions cannot be treated as completed transfers.The court could not make the order applicable with prospective effect as it had not laid down any new law. However, it said that those who had already bought property through GPA before its judgment could use the documents to apply for regularisation of allotments and leases by development authorities.

Nothing prevents affected parties from getting registered deeds of conveyance to complete their title. The said transactions may also be used to obtain specific performance or to defend possession under section 53A of TP (Transfer of Property) Act.In order to ensure that GPA continues to serve its purpose, the court said its judgment will not affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance.

The court further said that a person can enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings. In that connection he can execute an agreement of sale and grant a power of attorney that will allow the developer to further sell the property to prospective purchasers.While hearing a matter on the subject, the court had decided to clarify the law on the issue as such transfers had not only led to evasion of stamp duty and registration charges but had also provided scope for investing black money in real estate. Besides, such transfers were giving nightmares to bona fide purchasers as the same property could be sold to several people in the absence of verification or certification of title. A proper verification of ownership was possible only if all property were transferred through registered sale deeds.

Noting that such transactions were now not just limited to Delhi but had spread to neighbouring areas, the court had sought the views of the Centre and the states of Delhi, Haryana, Punjab and Uttar Pradesh. There was a near unanimity that such transactions should be discouraged as it caused loss of revenue and increased litigation due to defective titles.Going into the legality of such transfers, the court said any contract of sale which was not a registered sale deed would fall short of the requirements of the relevant provisions of the Transfer of Property Act and could not confer any title.The court said a transfer of property by way of sale could only be by a sale deed. In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.

Alternative Dispute Resolutions (ADR) is out of court settlements which are informal in nature. A Third party helps the parties who are having a dispute to settle it. They are faster, cheaper and provide privacy to the parties. ADR provides options to the parties to settle their differences in a satisfactory manner. The Courts have been affected with the problems of large pendency of cases owing to large arrears causing backlog taking many years for the case to be decided. Often the judgments are not satisfactory and cause inconveniences to both the parties. ADR has been found to be the solution to the problems affecting the judicial system. ADR mechanisms are been used effectively by Companies and other commercial establishments and have been encouraged by the Courts through Adalats.

Adoption according to Indian law is a personal act and hence is governed by the various personal laws of the different religions. Adoption is not permitted in according to the personal law of Muslims, Christians, Parsis and Jews in India. Hence they usually opt for guardianship of a child through the Guardians and Wards Act, 1890.  The following is an outline of the provisions in this law that pertains to children below the age of 18.

This act applies to all Hindu, Buddhists, Sikhs and Jains by religion. A child, legitimate or illegitimate, whose parent(s) or guardians were Hindu, Buddhist, Jain or Sikh is also considered under this act. A person who converted to these religions is also considered under this act. According to the act a ‘Hindu’ is any person to whom this act applies. In this act a minor is any person who has not completed 18 years of age. This act supersedes any act concerning Hindu adoption and maintenance.

Under this act, adoptions can only be made if all three parties, the minor, the giver and the adopter are all in agreement and considered fit. A Hindu male can adopt a male or female child, but must have to have the consent of his wife (wives) if she is alive and of sound mind and Hindu. A female Hindu can adopt if she is of sound mind, unmarried or married and her husband is dead, of unsound mind or is no longer a Hindu. Only the father, mother or the guardian of a child can place the child for adoption. A child can only be adopted if he/she is Hindu, not previously adopted, not married and has not completed fifteen years of age.

If the adoptive family already have a son or grandson or great-grandson (paternal lineage only) in their home they are not permitted to adopt a son. If the adoptive family already have a daughter or grand daughter (paternal lineage only) in their home they are not permitted to adopt a daughter. When adopting a child of the opposite sex the adopter must be 21 years older than the child. A child once adopted is considered to be a child of the adoptive family and all tied with his/her previous family cease to exist except with regard to prohibitions of marriage and property inherited by the child. Adopted children have the right to inherit property from their adoptive parents. A valid adoption can not be nulled by any party. Bribing a party for adoption is an offence punishable under this act.

If a person is already married at the time of adoption then his/her spouse will become the adoptive father/mother of the child. If the adoption takes place before marriage the spouse will be considered the step-parents of the child. In the case of multiple wives, the adopter must decide who the adoptive mother is and who the step-mothers are. Under the maintenance part of the act, A Hindu must provide for his/her legitimate and illegitimate children.

Adopted children will enjoy the same rights as biological ones in getting a share in property or financial compensation from their fathers in the event of the marriage breaking down, once Lok Sabha passes a bill for making divorce woman-friendly.

The Marriage Laws (Amendment) Bill, passed by Rajya Sabha on Monday, seeks to put an end to long legal battles and other difficulties faced by women after their marriages are over, and includes the specific clause that there would be no distinction between adopted and biological children.It will be applicable in cases where marriages have been solemnised under the Hindu Marriage Act and Special Marriages Act.

The proposed law clearly states that the definition of children will include “minor and adopted children, unmarried or widowed daughters who do not have the financial resources, and children who, because of special conditions of physical or mental health, need looking after and do not have the financial resources to support themselves.”It also says courts will have the power to reject divorce petitions in cases where they are convinced the woman and her children will “face grave financial hardships” on termination of the marriage.

“The court shall not pass a decree of divorce unless it is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage,” the bill states.This will be the second law in the country after The Juvenile Justice (Care and Protection) Act of 2000 to give equal rights to adopted and biological children. The need to remove this distinction was felt since the oldest law on adoptions, the Guardian and Wards Act of 1890, states that a parent who adopts is a ‘guardian’ and the child a ‘ward’, which means the latter does not have the same rights as a biological child.Some of the very many examples are:

Example1

A small causes court has dismissed singer Asha Bhosle’s suit demanding the eviction of her tenant yesteryear actor Baby Naaz’s family from her Santa Cruz bungalow, ending a 37-year property dispute. Bhosale had inherited the bungalow Sangeeta in Santa Cruz (west) from her first husband Ganpatrao Bhosle. Actors Sadhana Nayyar was a tenant in the ground floor and Naaz was on the first floor. In 1977, Bhosale filed cases in the small causes court seeking Baby Naaz’s eviction. In 2002, the court ruled in favour of the tenants, following which Bhosle filed an appeal, which has now been dismissed. The court said neither Bhosle nor her lawyers had been attending court for the last few hearings, while the tenants had been turning up regularly.

In the meanwhile, Kakkad Realty, to whom Bhosle had sold the property, pleaded to intervene in the case. The court did not allow this saying they had no papers to prove ownership. Following Baby Naaz’s death in 1995, her husband and children have been fighting the case. “Dismissal of the suit settles the long-pending issue between the landlord and tenant,” said Advocate Rupesh Karia, who represented Baby Naaz’s family. However, Kakkad Realty has filed a fresh case, seeking for the dismissed suit to be restored after naming them as the owners of the property.

“The new case of restoration has not been heard.But contention remains the same — that Princeton LLP (a subsidiary of Kakkad Realty that claims to have bought the property) are not the new owners as they are yet come forward with any paperwork pertaining to

the purchase of the property.

Kakkad Realty has also filed two more suits against Sadhana and Baby Naaz’s legal heirs claiming the two should be evicted as the company’s partners need a home to stay. Anil Kakkad and his two sons Malav and Kunal, who jointly own Kakkad Realty, have claimed they need the bungalow to live in. Anil and Malav have claimed they live in a house owned by Kunal and that they would like to live in Sangeeta. They claimed Sadhana owns a 2,500 sq feet flat in Bandra and should move there instead of living in a tenanted property.

The court is yet to decide on the two cases. Despite repeated attempts, Malav did not respond to questions. Ganpatrao Bhosle separated from Asha Bhosle in 1959. In 1963, he remarried a certain Ashabai. After his death in 1966, a court decided that whenever the bungalow is sold, the proceeds had to be divided into eight equal shares, with one share each going to Asha Bhosle and Ashabai. The remaining six were to be set aside for his mother and his five children from the two women.

Example 2

Facebook isn’t just a platform for selfies, memes, and ‘friends’ you haven’t met in years. Take Veena Naresh Shirke, a housemaid who has become an unlikely member of the social media network. The 38-year-old has taken to the website and created her own profile in order to drum up some support in her attempts to wrest property from relatives who she claims took it from the past 14 days, Veena has been posting a slew of updates about her fight for a 200-sq-ft house in a chawl at Khar (West). Her page shows her squatting in an open plot, surrounded by her utensils, suitcases and a stool. The dispute over the apartment started after the death of her husband. Veena, who works in several buildings and residential complexes as a maid, said, “In houses where I work, I often used to hear the children talk of Facebook. This was also mentioned on television serials that I watched. So I was keen on opening an account, and did so six months agoVeena’s brother helped her create the account. After the death of her husband, she was embroiled in a property dispute over a house that she claims he inherited from his mother. It was then that she decided to use Facebook to garner some support. Yesterday, Veena’s timeline showed updates posted for 13 consecutive days. So far, her updates have only attracted ‘likes’ from her neighbours, relatives and friends. After her marriage in 2006, Veena started living with her husband in his chawl, along with other members of his family, including her brother-in- law, Buddheshwar Shirke, his wife and their daughter. In 2007, the entire chawl was taken over by Lok Group for redevelopment. The entire joint family was asked to move. While Buddheshwar and his family moved to another apartment, Veena and her husband Naresh rented out a room in a society at Khar Danda. Veena and Naresh would receive a cheque of around Rs 1 lakh annually from Lok Group, in lieu of the land they had taken from them. The owner of their rented accommodation, however, soon decided to sell the plot, and the couple was rendered homeless yet again. With no other option left, Veena and Naresh moved into her father’s house.

Family dispute

In February 2013, Naresh passed away. It was then that she decided to stake her claim to his familial property. “I was left homeless after my house was demolished for redevelopment and the temporary flat where I used to stay with my late husband was sold off.

As I was not receiving help from anywhere, I decided to share my plight with pictures on my Facebook account,” added Veena. She first turned to Lok Group, asking them to give her a room in the society built by them where the chawl earlier stood, under the Slum Rehabilitation Authority (SRA) scheme.

“When I went to the builder’s office to submit the legal documents of the house in the chawl, a person there asked to see the agreement which he claimed had been handed over to my husband before his death. I have no clue about this.

My brother-in-law claims that the property belongs to my mother-in-law Vijayabai Shirke, and so there would be equal distribution of the wealth. However, I have an affidavit signed by my mother-in-law stating that the legal heir would be Naresh Shirke, my husband,” said Veena.

Brother-in-law Buddhesh-war, however, says that he or his family members are not denying her a share of the property. “Naresh was our youngest brother and we will definitely give his part of the property to her. This piece of land belonged to our mother Vijayabai Shirke, and all her sons are the legal heirs of the property. I don’t know what affidavit she is talking about and as far as I believe, it is a fake one,” said Buddheshwar.

However, Veena’s brother said that his sister is being denied her rights. “I am just concerned about her future. Who will be responsible if anything happens to my sister, who has no home of her own? Where should she go?” asked a worried Umesh Santaram.

Builder speaks

Suhas Kshirsagar, spokesperson for Lok Group of builders, “It is a family dispute, so we are no one to come in between. Our job is to follow the laws. Why would we have any issues giving her a house otherwise? We are doing our duty dedicatedly by giving her a monthly cheque of Rs 10,000. Just that the guidelines under SRA scheme don’t allow us to give her a house without the succession certificate

Example 3

Another complaint that the helpline received was even more shocking. An 84-year-old woman was being threatened by her children since 1996. She was allegedly kept in house arrest for a long time. Her youngest son who contacted HelpAge India alleged that his siblings had physically attacked his mother so that she would writes off the property to them.

Majority of elder abuse cases in Delhi are related to children pressurizing parents to write off property or other belongings in their names. But there are certain safety protocols that elders can follow. Elder care professionals suggest that while writing a will is absolutely essential it may not be a good idea to share the will or the property before the death of the parent.

“Property related abuse is increasing. We advise that everyone should make a will. But it should be kept in safe custody and not reveal the contents to their children. Many a times a family member digs it out and then all hell breaks loose. Most children are not happy with the share they have got. So they start misbehaving,” says Himanshu Rath, founder of Agewell Foundation.

The elderly can keep their wills with organizations like Agewell Foundation too, who will keep the will safe and hand it over to the beneficiaries after the demise. Or, they can keep their will in lockers or with their family lawyers.

In many cases, parents tend to share their will verbally with the children, not foreseeing the dangerous outcome . Once the parent has shared their will to give the child a part of the property, they usually create pressure to write it off immediately, within their lifetime.

Example 4

The case of Red Bull GmbH V. Unasi Management Inc. 2005 (31) PTC 90 (WIPO) shall be discussed here to provide a better understanding of the intricacies involved in dispute resolution under the policy. The concepts like ‘deceptive similarity’, ‘legitimate interests’ and bad faith’ involved in domain name disputed are also examined in this case.Redbull is the proprietor of several generic as well as country Top Level Domains. The principle website of Redbull is www.redbull.com which hosts information about Redbull products and other activities of the company and also provides links to its various websites.

The Trademark RED BULL is registered in 199 countries in name of Red Bull Company or its subsidiaries. Unasi is the proprietor of the domain name www.redbull.com where the links to websites relating to the rival energy drinks are posted. When a person visits this website a pop up window appears on the screen. Aggrieved by this Redbull filed a complaint before the Wipo Arbitration and Mediation Centre against Unasi, praying for the transfer of the impugned domain name to Red bull.Red bull averred that its energy drinks under the trademark RED BULL are sold in many countries and million of euros have been spent in advertising the drink. As a result of massive publicity campaigns, the energy drink under the trademark REDBULL has acquired global reputation.

Red Bull Company has been involved in organizing Formula One Racing that has given it worldwide media coverage. Redbull contended that the impugned domain name integrated the trademark RED BULL in its entirety The disputed domain name is identical or confusingly similar to its trademark REDBULL and was designed to mislead the Internet users who often make the typographical mistake by omitting the period after “www” when intending to actually visit Redbull website. Unasi did not refute the allegations made by Red Bull company against it.

In order to arrive at the decision, the panel considered the three ingredients namely ‘deceptive similarity’, ‘legitimate interests’ and ‘bad faith’. The panel ruled that disputed domain name was deceptively similar to the trademark RED BULL. The only difference between the domain name and the trademark was the prefix ‘www’. As www (world wide web) is a generic term and a common prefix to domain names in Urls, it is not capable of distinguishing the domain name from the trademark REDBULL. The panel reiterating the earlier rulings stated that ‘the domain names that consist of trademark with prefix www are confusingly or deceptively similar to the trademark’.

The panel then considered whether Unasi had any ‘rights or legitimate interest’ in the domain name wwwredbull.com. Unasi had been using the domain name by posting links to the competing energy drinks, which shows that it was aware of Red bull’s product and was free riding on the good will and reputation of the trademark REDBULL. As Unasi has made no rebuttal, it proves the disputed domain name was adopted solely for the purpose of diverting the customer of red bull. There are no circumstances that demonstrate any right or legitimate interest of Unasi in the domain name.For deciding upon whether there was bad faith on part of Unasi in adopting the domain name, the panel considered the factors that indicate bad faith. The panel was of the opinion that since the RED BULL is a world famous trademark it is unlikely that Unasi was not aware of its existence.

When an Internet user accesses the website under the disputed domain name a pop up window appears which indicates that Unasi is benefiting through the advertisement. Even if the viewers can eventually know that this is not the site they are looking for, the initial diversion of the customers is caused. As the website contains numerous links to competing drinks, it establishes an intention to disrupt the business of Redbull company. The foregoing facts prove that the Unasi has bad intention in adopting the domain name wwwredbull.comThe panel ruled that since redbull has established all the three elements –‘deceptive similarity’, ‘lack of rights or legitimate interests’ and ‘ bad faith’, the disputed domain name is transferred to red bull.

Comments and Conclusion

The domain name dispute resolution policy does not provide for the grant of damages to the proprietor of the trademark who has suffered injury due to usurpation of his/her trademark in the cyber world. The jurisdiction of the Courts is not ousted and the aggrieved party can move the Court before or after the institution of the administrative proceedings. It is more likely that the Court would take into account the principles of the policy when a domain name dispute is presented before. Would the Courts be granting relief other than those mentioned in the policy? The inherent jurisdiction of the Courts empowers it to pass any order that is necessary to do justice between the parties. Even though the policy does not provide for damages, the Court may grant damages in certain cases.

Example 5

Bombay High Court deferred the hearing of the multi-crore property dispute case between sons of late Shiv Sena founder Bal Thackeray.The legal battle between the sons of late Shiv Sena patriarch started after his ‘disputed’ will, made in 2011, did not mention leaving any share of his property to the families of his elder sons Bindu Madhav and Jaidev, as per reports.

While Bindu Madhav had died in a road mishap in 1996, Jaidev had never got along with his father and did not stay in the Thackeray’s Bandra residence. The will reportedly mentions the names of Jaidev’s ex-wife Smita’s son Aishwarya and Uddhav who were given first and top floor of ‘Matoshree’ respectively.

However, no property was left for Bindu Madhav’s son Nihar as he didn’t approve of his daughter in-law Madhavi’s “erratic behaviour”.Upset at being left out in the will, estranged son Jaidev questioned the truthfulness of the will and had moved the court against Uddhav for the control of property worth crores.

Example 6

A married couple that owns a property jointly wants to separate. If the wife had also paid (a percentage of the cost of the house) at the time of buying the property, at the time of splitting she will have to be paid her share if the husband wants to keep the property.The wife will have to prepare a sale or gift deed in favour of the husband and move out of the ownership of the house. This deed will have to be a registered one, for which the wife will have to pay stamp duty as well.Women have an upper hand when a couple split. So, it is likely the wife would secure the ownership of the house. As a result, she might have to pay the husband’s share to him. Lawyers say often, though the wife earns more or is richer than the husband, she may still get an upper hand.If the joint property was bought on a joint home loan, the party moving out of the ownership would have to secure a no-objection certificate (NOC) from the bank showing he/she is no longer liable for the loan.

Anil Harish, partner of law firm DM Harish and Company, says if A and B jointly own a property on a joint home loan and B decides to move out of the ownership by selling his/her share of the property to A, B would have to contact the bank and inform it of this.It is likely the bank would ensure the loan repayment wouldn’t be affected by this, that is, A would be able to repay the loan. Only then would it issue an NOC to B.For joint loans, if an owner stops repaying, the other is asked to repay the share of both parties. “If the property is held by the husband and the wife’s name is added as a co-owner only for convenience, then, too, the wife has a right over the house — the right of residence in the matrimonial home.In this case, if the wife has to leave the matrimonial home, the husband would either have to pay rent to her every month for renting another house or pay a lump sum to buy another house.

Say, a father buys a property in the name of his daughter. In this case, the daughter would retain her right over the property and can claim her stake. The case would be the same if the property was inherited by the father and the daughter had been named in it.In such circumstances, women get more protection, says the distribution of the property also depends on the type of property held — residential property where the joint owners are living, jointly held let-out property, jointly held vacant property, commercial property, a plot of land, etc.

“If both parties stay in a residential property, either may sell his/her share to the other and get paid for it. Let-out properties need not be sold. Instead, the rent can be shared according to the ownership of the two parties. If the two parties hold a property that can be divided, such as an office with two rooms, both parties can get a room each. Similarly, a plot of land can be divided between two parties.

Residential property where joint owners live: One of the owners can sell his share to the other or sell the property and share the proceeds as per ownership

Let-out property: Rent can be shared between the owners

Vacant property: Sell and share the proceeds according to ownership pattern

Plot of land & commercial property: These properties can be divided, like an office with two rooms can be divided into one room per owner, and so can a land parcel be divided

Jointly bought the property: The owner moving out of the ownership will have to sell the property to the other by way of a registered sale deed

Joint owner’s name added for convenience: Between a husband and wife, the wife has a right over the matrimonial home. If she has to leave the home, the husband will have to pay her monthly rent for another house or a lump sum to buy another house.

Asset created in the name of joint owner: Say, a father buys a property in the name of his daughter. In this case, the daughter would retain her right over the property and can claim her stake. The case would be the same if the property was inherited by the father and the daughter had been named in it married women have an equal right of inheritance in an ancestral property, the lawyer says, but there is a clause.

Only women born after 1956 get this right.The Hindu Succession Act (1956) did not give a married woman the right to ancestral property till it was amended in September 2005, to provide the right to parental property for daughters since birth.It is wise to remember that in the case of an immovable property, it is safer to get a no-objection certificate from all the parties concerned or a copy of the resolution passed by them.

In theory, in the ancient times, the woman could hold property but in practice, in comparison to men’s holding, her right to dispose of the property was qualified, the latter considered by the patriarchal set up as necessary, lest she became too-independent and neglect her marital duties and the management of household affairs. This was the situation prior to 1937 when there was no codified law. The Hindu Women’s Right to Property Act, 1937 was one of the most important enactments that brought about changes to give better rights to women. The said Act was the outcome of discontent expressed by a sizeable section of society against the unsatisfactory affairs of the women’s rights to property. Even the said Act did not give an absolute right to women. Under the said Act a widow was entitled to a limited interest over the property of her husband – what was to be termed as Hindu widow’s estate. The Act was amended in 1938 to exclude the widow from any interest in agricultural land.

The Hindu Succession Act, 1956 introduced many reforms and it abolished completely the essential principle that runs through the estate inherited by a female heir, that she takes only a limited estate. The Supreme Court put a lot of controversy at rest by holding that the woman becomes the absolute owner under Section-14 of the Hindu Succession Act, 1956. The object of Section 14 is two-fold : (1) to remove the disability of a female to acquire and hold property as an absolute owner and (2) to convert the right of woman in any estate held by her as a limited owner into an absolute owner. The provision was retrospective in the sense that it enlarged the limit of the estate into an absolute one even if the property was inherited or held by the woman as a limited owner before the Act came into force. Any property acquired under the 1937 Act held in capacity of a limited owner was now converted to her absolute estate. The Hindu Succession Act, 1956 abrogates all the rules of the law of succession hitherto applicable to Hindus whether by virtue of any text or rule of Hindu law or any custom or usage having the force of laws in respect of all matters dealt with in the Act. Therefore no woman can be denied property rights on the basis of any custom, usage or text and the said Act reformed the personal law and gave woman greater property rights. The daughters were also granted property rights in their father’s estate.

Under Section 8 of the Hindu Succession Act, 1956 the property of a male Hindu dying intestate (that is, without leaving any testamentary instrument like will, settlement etc.,) shall devolve on his son, daughter, widow, mother, son of a predeceased son, daughter of a predeceased son, son of a predeceased daughter, daughter of a predeceased daughter, widow of a predeceased son, son of a predeceased son of a predeceased son, daughter of a predeceased son of a predeceased son, widow of a predeceased son of a predeceased son. Thus female heirs were granted property rights in the estate of the deceased male Hindu.

The above said Section applies to the self acquired property or the separate property of a male Hindu.

However Section-6 of the Act clearly states that in the case of joint family property, known as coparcenary property, the interest of a male Hindu, on his death, would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the above said provision. Coparcenary consists of grandfather, father, son and son’s son. However, if the deceased had left him surviving a female relative (daughter, widow, mother, daughter of a predeceased son, widow of a predeceased son, daughter of a predeceased son of a predeceased son, widow of a predeceased son of a predeceased son) the interest of the deceased in the coparcenary shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. For example, A (who had an interest in the coparcenary property) dies leaving behind him his 2 sons B & C and a daughter D. When he was alive, B & C (sons) were members of the coparcenary and D (daughter) was not a member of the coparcenary. On the death of A, his daughter D will get only 1/3 share in the 1/3 share of her father in the coparcenary property. It means the sons B & C will get 1/3 +1/9 each where as the daughter D will get only 1/9 share in the property.

Under Section 23 of the Hindu Succession Act, 1956, where a Hindu intestate has left surviving him or her both male and female heirs and his or her property includes a dwelling house, wholly occupied by members of his or her family, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective share therein; but the female heir shall be entitled to a right of residence therein; Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by, or has separated from, her husband or is a widow.

No doubt, the above provisions of the Hindu Succession Act, 1956 are gender discriminatory. To remove the said gender discriminatory provisions the Hindu Succession (Amendment) Act, 2005 was enacted and the said Act came into force on 9th September, 2005 and it gives the following rights to daughters:

In a Joint Hindu family the daughter of a coparcener shall,-

(a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu coparcener shall be deemed to include a reference to a daughter of a coparcener:

Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

The above mentioned provision under Section 23 of the Hindu Succession Act, 1956 relating to right of residence in dwelling houses has been omitted under the Hindu Succession (Amendment) Act, 2005. Thus gender discrimination has been removed to a larger extent by the 2005 Act. Now, daughters can claim equal right in the self acquired/separate property and also coparcenary property left by their father.

Case 1

The Bombay High Court has held that a child given away in adoption cannot claim any right in the property of his biological father.The ruling was delivered on November 30 by Justice Mridula Bhatkar who observed that once a child is given away in adoption, his rights to property of his biological father ceased to exist.

The case pertains to a joint Hindu family from Nashik, where family-head Ramachandra Mahale had given away his eldest son Radhakrishna to More family. Ramchandra has two more sons Trimbak and Digambar.During the course of time, Digamber died and Trimbak too died later leaving behind his wife and daughter.

Somnath, son of Radhakrishna, claimed a share in the property jointly owned by the Mahale family.The high court, however, held that Radhakrishna and Somnath do not have right to claim share in the property belonging to their biological family since Radhakrishna was given away in adoption.

Justice Bhatkar said “family is not defined under Hindu Succession Act. Thus, who can be a member of the family is not described by the statute. Therefore, the court has to determine position of Ramachandra in view of his legal status only”.

“His (Somnath’s) status as a family member may be acknowledged by Trimbak and Digamber, however, Somnath is not a coparcener in law. He does not have any legal right in the property of his father’s (Radhakrishna’s) biological father”, the judge said.”Due to adoption, Radhakrishna’s rights in the property of his natural father were ceased and so of Somnath. He continued to stay there and continued to look after the family of his brothers and other family members, yet his right cannot be rejuvenated”, the judge said.

The dispute over the property rose when Ujjwala, daughter of Trimbak sought partition to which Somnath objected.A civil court ruled that Ujjwala had one-fourth share in the property and dismissed Somnath’s claim, saying his father was given away in adoption to another family.

Aggrieved with the order, Somnath moved the high court.He disputed the fact that his father was given away in adoption.However, Ujjwala’s lawyers pointed out that Somnath’s surname in school records was mentioned as More which was that of the adopted family. They also submitted a document showing Radhakrishna’s adoption.The high court upheld the civil court ruling which said Somnath had no right to claim share in the property of his biological father.

Case 2

The Mullaperiyar Dam was constructed by the British during 1887-1895 across Periyar River in the then Travancore state (now Kerala) territory. During the rule of the British in India a 999-year lease was made and accordingly, the Government of Tamil Nadu has been operating the dam.

The Periyar National Park is located around the backwaters of this dam. The dam was built by the British under the supervision of Benny Cook.  The dam’s purpose was to divert the waters of the west-flowing Periyar River eastwards, since it caused widespread floods in the Travancore region, by constructing a masonry dam and diverting the water from the reservoir by way of a tunnel across the watershed and the Western Ghats to the rain shadow region of the Theni Sivaganga District and Ramanathapuram districts of Tamil Nadu.

The lease provided the British the rights over “all the waters” of the Mullaperiyar and its catchments, for an annual rent of Rs. 40,000. About 60,000 ha in Theni, Madurai, Sivaganga, Ramanathapuram, and Dindigul districts in present day Tamil Nadu were intended as beneficiaries of irrigation waters from Mullaperiyar. Water is brought through a 1.6 km long tunnel till the Tamil Nadu-Kerala border and then flows through open canals to Churuliyar River which feeds the Vaigai dam in Tamil Nadu. From there a network of canals take the water to the fields.

The dam is one of the oldest dams in service in the world, at 105 years. The average life-span of a well-built and well-designed dam is considered to be 50-60 years by experts. It was made using old technology, and not based on the modern parameters for design of dams. In this case, much of the building material used in the construction has been leached out, by wear and tear. Thus in 1930s, Tamil Nadu engineers bored 80 holes in the dam and injected 40 tonne of cement solution to plug seepage. Again in 1933, grouting technology was used to strengthen the dam. In 1960, 502 tonne of cement solution was injected. The experts from Indian Institute of Technology also examined the dam, and mentioned that the dam will not withstand an earthquake.

It has become the bone of contention between Kerala and Tamil Nadu.

Since 1970, Kerala has argued that the dam having outlived its life of 50 years is unsafe to maintain water at 46.3 metres—the full reservoir level—and it should be restricted to 41.45 metres. The Kerala government’s contention is that in case the dam breaks, the three dams downstream — Idukki, Cheruthoni and Kolamavu – will not be able to withhold the pressure, which will put the lives of 3.5 million people in danger in the state.  In 1979, the Central Water Commission (CWC)— the premier government agency dealing with dam safety—was asked to look into the matter; it suggested reduction of water level to 41.45 metres as an emergency measure along with other measures to strengthen the dam. Tamil Nadu agreed to this limit. Another committee headed by the then CWC chairperson B K Mittal was appointed in 2001 to look into the matter. It stated that the reservoir level be raised to 43.28 metres, after the strengthening measures were implemented. This was to be on an interim basis, and later reservoir levels could go up to the original level of 46.3 metres.

On the other hand, the TN government maintains that if the Mullaperiyar is demolished, it will create water scarcity in five districts of the state, leading to a drought in the region.

In 1998, all Mullaperiyar-related cases were transferred to the Supreme Court which, in its order of February 2006, observed that the dispute is not a ‘water dispute’. It allowed raising the reservoir level to 43.28 metres and directed Tamil Nadu to carry out the strengthening measures suggested by CWC, and restrained Kerala from causing any obstruction.

In July 2009, the Kerala government proposed the building of a new dam, 1,300 feet downstream of the present Mullaperiyar reservoir, which can assure the safety of the people of Kerala from the existing high-risk structure. In 2010 Tamil Nadu rejected the idea of constructing the new dam over the Periyar River.

Finally in 2010 the Supreme Court appointed former Chief Justice of India A.S. Anand as the chairperson of a techno-legal panel formed to examine the strength and capacity of the more than a century old Mullaperiyar dam in Kerala.

Recently the 141-member house of Kerala unanimously passed a resolution that the central government should sanction a new dam to replace the leaking, masonry Mullaperiyar in Idukki district.

This is the third unanimous resolution passed by the Kerala assembly demanding a new dam. The first was passed in 1993 when K. Karunakaran of the Congress was the Chief Minister and the next came in 2009 when V.S. Achuthanandan of the CPI-M was heading the state government.Kerala is worried that a strong earthquake might damage the dam and cause widespread destruction. It is seeking a new dam and has offered to fund and build it, but Tamil Nadu does not agree. Experts from Kerala side say if a quake strikes and the dam is damaged, over four million people and their property in districts of Idukki, Kottayam, Alappuzha, Ernakulam and parts of Thrissur would be washed away.Whereas Tamil Nadu wants the dam’s storage capacity to be increased by raising the dam height from 136 feet (41.5 metre) to 142 feet (43 metre) as the state’s irrigation needs have shot up.Mullaperiyar issue has sown the seeds of mutual distrust between people on either side of the 116-year-old dam.

ADR can be used in all Civil matters and in Criminal matters where the offence is compoundable like cheque bouncing cases, petty offences, motor accidents claims cases, insurance and banking cases. Mainly ADR has been used in matrimonial matters, property matters, partnership and corporate disputes and practically most of the civil cases. There are various instances in which matters pending for more than 15 to 20 years have been resolved in 12 to 18 hours in 4 or 5 sittings.The procedure is very flexible and there is total transparency in the process. ADR reduces the costs of litigation and time taken for resolving disputes.

With the coming of the Indian Arbitration and Conciliation Act of 1996 and amendment to section 89 and Order X of the Civil Procedure Code it has given boost to ADR. The Civil Procedure Code and the Indian Evidence Act does not apply to the process of Conciliation though in Arbitration the Arbitrators do apply the same. It is not necessary for a person to be a Lawyer or a Law graduate to be a Conciliator or Arbitrator. Settlement brought through the process of Conciliation acts like a Decree of the Court or an Award of the Arbitrator. Any party committing default can be proceeded against by taking out Execution Proceedings and there is no need to file a case for that purpose.

Cases Resolved:

(CASE 1)

A middle class girl by force of the parents got married and went to Bahrain. The husband being in a very senior position of a big Company was habituated to drinking and throwing late night parties which frustrated the girl. A daughter was born but still the husband did not improve and with his promotion and status became more socialite. The wife out of frustration came back to India with a determination not to return to her husband.

The husband made many efforts to bring her back and not having success came to India. When the wife refused to talk to him at the advice of the Advocates he filed for divorce making false and frivolous allegations. This was the first proceeding.

The wife got very frustrated and pending the Divorce Petition filed an Application for Maintenance for the daughter and herself. This was the second proceeding.

The Family Court gave a paltry amount which did not satisfy the wife. She filed a Letters Patent Appeal in the High Court. This became the third proceeding.

The High Court passed an Order raising the amount with retrospective effect. Husband committed default in payment for ten months. Wife took out contempt proceedings. This became the fourth proceeding.

Husband went in Appeal in which the Appellate Court admitted the Appeal but asked the husband to pay all the arrears as per the High Court Order and continue to pay till the Appeal is disposed of. This became the fifth proceeding.

The husband filed Review Petition before the Trial Court. The Hon’ble High Court passed the Order referring the matter to Conciliation. This became the sixth proceeding.

Conciliators took twelve hours to resolve the dispute to a win-win situation for both the parties who have not taken a divorce and are living as a happily married family for more than ten years. Extract of the Judgement of the Bombay High Court is as follows:

P.C.

“This was a matrimonial dispute; the past tense can now be used with some deliberateness since Parties have resolved the dispute in terms of Consent Terms which have been arrived at between them. In the main Writ Petition which is before the Court, an Order was passed on 12th December 2002. The dispute which came up before the Court was in relation to an application for the grant of maintenance to the petitioning wife. After the order was passed, a Review Petition came to be filed. The Respondent resides in Sharjah and there was a serious grievance made that the arrears of maintenance had not been paid by him. Fortunately, when the Review Petition came up for hearing, all the learned counsel as well as the Parties expressed their willingness to attempt a conciliatory resolution of their dispute. Parties agreed to Conciliation before Mr. Firdosh Karachiwala and Ms. Rajani Iyer, both of whom are Advocates practicing before this Court.

The Conciliators have spent almost 12 hours facilitating the Parties to resolve their dispute and in attempting to move them towards a negotiated settlement. The Conciliation took place under the provisions of the Arbitration and Conciliation Act, 1996. Parties have now appeared before the Court together with their counsel and have tendered Consent Terms which are signed by them and by the learned Advocates. The entire dispute between the Parties is resolved and they have agreed to divorce by mutual consent. The Consent terms are taken on record and marked as ‘X’. The undertakings provided for in the Consent Terms are accepted. The Family Court at Bandra shall now proceed to pass a decree for dissolution of marriage by mutual consent as envisaged by the Parties in Clause 2 of the Consent Terms.

Before concluding the matter, the Court would wish to record its deep appreciation of the expert assistance rendered by the two Conciliators, Mr. Firdosh Karachiwala and Ms. Rajani Iyer. They have in a true sense discharged their responsibility which lawyers as officers of the Court are expected to perform. Parties and their counsel have deeply appreciated their assistance. In view of the settlement between the Parties, nothing further survives in the petition for review. There shall be an order in terms of the Consent Terms.”

Though the order was passed granting divorce to the husband and wife they have not gone to Family Court and they are living as husband and wife in a happy situation. A marriage was on the rocks and with the efforts of the Conciliators the marriage was saved from breaking down and the poor child having to bear the brunt of separation and divorce between her father and mother.

In this case wife realized that the husband has truly apologized for what he had done in the past and the husband was willing to sign the Consent Terms convincing the wife that the marriage could now survive. She was convinced that he would change his attitude towards life and be more faithful and caring towards his wife.

(CASE 2)

A young girl of about 27 years of age and Architect by profession got married to a wealthy businessman’s son and during eleven months of marriage she was very happy and both husband and wife travelled throughout the world. Every night was a social night partying with friends living in a nice bungalow with car and chauffeur at their disposal and having big business. After eleven months of marriage one day the husband complained of certain pain in the body and certain swelling in the legs. He was taken to a very good hospital and after undergoing various tests the doctors came to a conclusion which was a shock to the whole family that the husband had whooping cancer and would not survive long. Three days later the husband expired which was a big shock and trauma to the wife and to her father-in-law. After the shock and trauma and religious ceremonies having got over friends of the wife in order to reduce her pain started taking her out of the house environment for dinner and socialising.

The father-in-law became anxious and concerned for his daughter-in-law. He tolerated this for some months and thereafter called the wife’s parents and pleaded with them to take her with them as she was still young. The wife’s parents asked for alimony, maintenance etc. of Rs.5 crores i.e. 50 millions of rupees. This made the father-in-law very angry as he had lost his son and over and above there was a demand for such a huge amount. He refused to pay any amount and told the parents that they could take any legal proceedings.

The parents along with their daughter came to my office to take legal proceedings against the father-in-law for the share of the wife in the estate of the deceased. Looking at the circumstances I suggested to the parents and the daughter that instead of litigation why not try Conciliation. After consulting a Judge they agreed for Conciliation proceedings. The father in law who is an Architect turned bussinessman appointed his own partner as Conciliator.

During the sessions of Mediation I had observed the changes which were happening to the daughter-in-law as she was looking very sick and frustrated. A suggestion was made whether there was a possibility to hold private sessions to which they agreed. In the private session as the daughter-in-law was sitting across I asked her what was happening to her as she looked very pale and frustrated. She cried and cried for a long time and thereafter stated that she did not know why this fight was happening between her father-in-law and herself who all throughout her marriage life treated her as his daughter and there was never any bitterness or quarrel. She felt that today she cannot face her father-in-law or bear his anger. Concilitors asked her what did she want in her life and to the shock of Conciliators she said that she only wanted one small Flat in Mumbai and one of the cars and for maintenance initially till she gets a job Rs.25,000/- per month. She said that this was all that she required and she was not insisting of 50 million rupees.

Thereafter Father-in-law in Private session also mentioned that the relationship was very cordial till demand was made from the daughterin laws’ parents. Father-in-law said if in the place of his daughter in law if it was his own daughter he would ask for a Flat and reasonable alimony of Rs.50,000 and one car with Chauffer

Conciliators knew that ice was broken and there was possibility of settlement. Concilitors then gave opportunity for the parties, relatives and Advocates to go in separate rooms and consider the proposal. After 20 minutes of deliberation the parties came back to the Conciliators and said that the settlement was agreeable. Terms were drawn up, signed by the parties and their Advocates and attested by the Conciliators. After the Agreement was signed the father-in-law assured that he would keep his daughter-in-law in his own office, as also give her professional work, take care of her and also if there is a suitable boy for her he would arrange the marriage and bear expenses for her.

(CASE 3)

One case came up before a Conciliator in Pune city which was pending in the High Court for eighteen years and coming up for final hearing and disposal. Litigation had started with a brother who had died and thereafter it was continued by his son. More than twenty years back, their business was a flourishing business and after the disputes both the brothers had suffered heavy losses. The elder brother went away to Canada and married an Indian lady. In Canada the uncle who was now facing litigation against the nephew could not succeed in his business and had to return to India.

As the case was coming up, the Conciliator suggested to him that Conciliation would be the best way to resolve the dispute and he would not have to incur heavy costs and they agreed for Conciliation. As soon as they were in the suburbs of Mumbai, the uncle’s wife asked him to show around the property which was in dispute. The husband was reluctant but still the wife insisted. The wife then asked the husband to go up and say that they had a Conciliator and talk to his nephew.

As soon as the door opened, the nephew and his wife got angry and started shouting and using abusive language. The wife went up and the abusing doubled. The Conciliator felt that they would come to blows and requested the uncle to come down. As the uncle and his wife were relating to the Conciliator, the nephew’s wife came down and immediately called the watchman with three dogs which surrounded the Conciliator, uncle and his wife. She again started using abusive language towards the uncle and his wife.

At this stage the Conciliator intervened and told the nephew’s wife that he had not come to their place as an Advocate but as a Conciliator and that he would help them to resolve their dispute which was pending for 18 years and both the Parties must have definitely lost their energy and money also. The Conciliator told them that if Conciliation does not succeed they can go back to Court. The nephew convinced his wife to try this Conciliator. The Conciliator then used humor and said the first condition was that the dogs should be taken away as if she said something, the dogs would do everything.

The Conciliator said that the second condition was, that unnecessary Parties should not be in the Conciliation and the uncle’s wife she should be allowed to leave. The Conciliator then put the third condition that they should sit at a proper place because Conciliation cannot take place standing. The nephew and his wife requested the Conciliator and uncle to come in the sitting hall in the bungalow and the process of Conciliation started. The whole scenario changed in half an hour and conducive environment was created to conduct Conciliation.

In order to show fairness and impartiality to both the Parties, the Conciliator informed the nephew that the uncle had already told his part of the story whilst coming to Mumbai and whether he would like to repeat the story or he would like to give his opening statement. The nephew said that there are lots of things and burning issues which he wants to ventilate and speak about as to what the uncle had done against him. He said that his uncle is a liar and immediately the Conciliator intervened and requested the nephew not to use abusive language and reframed the sentence by saying that what his nephew meant is that the uncle is not saying the truth. Immediately the reaction of the uncle changed as he was very upset with the use of the word “liar”. The Conciliator being alert brought the situation under control by reframing the sentence.

Thereafter nephew made his Opening Statement and whilst making the same the uncle tried to interrupt twice and thrice but the Conciliator stopped him and told him that he will be given an opportunity to speak on his part after the nephew had finished. At certain time the uncle was not listening carefully and the Conciliator then told him to listen carefully to what the nephew was saying as he would have to respond to all the issues which were being raised by the nephew. The Conciliator is also taking down bullet points which is useful whilst summarizing. This assures the Parties that all the issues are now before the Conciliator.

After the nephew had made his Opening Statement, the uncle was asked to respond and to the utter surprise of the nephew the uncle was giving all the answers which the Nephew did not have and even imagined what had happened during his father’s time. The uncle made specific references regarding the accounts, regarding the debentures and all the property issues and when the nephew and his wife heard the uncle giving necessary clarifications and explanations, it started becoming clear to them as to where the dispute was between them. In this manner the Conciliator went to the root cause of the dispute and surfaced the issues. The Conciliator summarised for both the Parties what each of them had said and both the Parties confirmed the same.

The Conciliator along with the Parties listed out the issues of property matters, company matters, accounts etc. and the preliminary meeting lasted for three hours. The Conciliator next suggested private Conciliation and both the Parties on fixed date and time have to remain present before the Conciliator under the Arbitration and Conciliation Act 1996. The Conciliator also mentioned what would be the fees of the Conciliator per session which was also agreed upon by the Parties.

The Parties along with the Advocates came to the Chamber of Conciliator and in twelve meetings the entire dispute between the uncle and nephew was settled. In the process of Conciliation, the Conciliator had Joint and Private sessions and used techniques of WATNA, BATNA and MLATNA which made it clear to the Parties that it was easy to resolve the dispute which was pending for so many years. The necessary settlement agreement was signed and document registered which was required to be registered and the entire matter which was pending for more than 18 years in the Court was resolved in six meetings of approximately three hours each which did not only resolve the disputes but also the Party’s relationship grew and in the process the Parties closed their past and started looking for the future relationship and also visited each other and spent more time together.

(CASE 4)

One incident, which happened with Mr. Karachiwala before the amendment of Section 89 of the Civil Procedure Code where Conciliation was attempted instead of Court litigation, whereby the dispute was settled easily.

“I was at Jindal Naturopathy Farm near Bangalore (Karnataka State) when the then Chief Justice of Madras High Court Mr. A.P. Shah was also there. Whilst we were walking, I mentioned to the Chief Justice about the Conciliation and Mediation Proceedings done in the Ismaili Community for decades and that no Ismaili goes to a Court of Law for settling the disputes. All disputes relating to matrimonial, commercial or property matters are settled by Conciliation. In the Ismaili Constitution there is provision for settlement of disputes through Conciliation and Arbitration at the Regional, National and International levels. I further mentioned that under the Ismaili Constitution rules for Conciliation, Mediation, Arbitration and Matrimonial matters are framed which govern the community. His Lordship Chief Justice A.P. Shah showed keen interest and asked me if I could send the Rules to him. On returning to Mumbai, I sent the Rules relating to Matrimonial, Conciliation, Mediation and Arbitration to the Chief Justice.

Incidentally few months later a case came up before the Appeal Court of Bombay High Court (Appellate side) before His Lordship Justice A.P. Shah and His Lordship Justice V.C. Daga. The matter was being vehemently argued by both Parties and it was a divorce and maintenance case in which an irrevocable divorce took place by proclaiming Talaq and the question of maintenance for the wife and the child had to be decided. Justice A.P. Shah saw that the matter related to Khoja Community and asked his fellow Judge whether it could be possible to refer the matter to Conciliation as it was a Khoja case. I was called to the Court and when I saw the matter, I observed that it was not the case of the Ismaili Community but of Ishnashri Khoja Community. This was pointed out to the Judges and the Court was informed that in such a case Conciliation can be attempted.

Next day in the evening the Advocate along with the Parties came to my Chamber and the Conciliation started at 5.30 pm. Ground Rules for the Advocate were laid down and it was made clear to them that it was not a Court Room and the Civil Procedure Code and the Indian Evidence Act are not applicable to the process of Conciliation. I also mentioned to the Advocate that the entire process is confidential and if Conciliation does not succeed, only a short report would be submitted to the Hon’ble Court. Nothing said in the proceedings or any proposals made would be revealed to the Court nor would I come as witness for any of the Parties. I requested the Advocate to take note that no proposals or counter proposals made in Conciliation should be mentioned to the Court, if the Conciliation did not succeed.

After laying down the Ground Rules when I went to the depth of the case, I came out with the finding that the divorce took place because the young child of the couple was suffering from Leukemia and required blood transfusion every fortnight which the husband could not afford and out of frustration and anger, he had pronounced Talaq and divorced his wife. The wife stated that she could not bear the expenses, as she is illiterate and not earning. Further she has no support and she could not see the child die for sake of treatment. Therefore it is the duty of her husband to maintain his child. The husband said that it is not possible for him to maintain the child, as he has to look after aged parents and a sister who is suffering from paralysis and that he is facing lot of difficulties to maintain his family.

After hearing both the sides, as an option I invited the leaders of their community and asked them whether it is possible for the Community Trust to bear the expenses of the child. Immediately the office bearers said that they would bear the expenses. However they were asked to call a meeting of the Trustees next day and pass a Resolution so that the same can be submitted to the Court. Next day the meeting was called in which Trust passed a Resolution to bear the medical expenses of child and if required even send the child abroad for treatment. The Consent Terms were signed and presented to the Hon’ble Court within three days of the matter being referred to Conciliation. Hon’ble Court appreciated that such a complicated matter was resolved in such a short span of time to the satisfaction of the Parties. After the Consent Terms were filed, the parents came before the Conciliator and said that if Conciliation proceedings would have been initiated earlier the divorce would not have separated them and the child would have received the love of both the parents; since it was an irrevocable divorce the wife would have to marry somebody and after consummation, take divorce and then only could get married to the first husband.

This can only happen through Conciliation when a third Party who is not Party to the Suit/ Appeal can be called to resolve the matter. The following Order was passed by the Hon’ble Court.

HIGH COURT

O.O.C.J.

APPEAL NO. 584 OF 2000.

CORAM: A.P.SHAH AND VIJAY DAGA, JJ

DATE : 14.09.2000

P.C.

Parties are present.

“Consent terms signed by the Parties and their Advocates tendered, taken on record. Undertakings contained in the Consent Terms are accepted.

In view of the Consent Terms, Contempt Petition No. 111 of 2000 and Appeal No. 584 of 2000 are allowed to be withdrawn.

Office is directed to forward Consent Terms to the Family Court in Suit No. 0-39 of 2000. Upon receipt of the Consent Terms a Decree in terms of the Consent Terms shall be passed by the Family Court.

The above settlement between the Parties became possible only due to efforts taken by Shri. Karachiwala and we express our appreciation about the efforts taken by him without which settlement would not have been possible.

Alimann Charitable Trust, which is represented by Shri. Karachiwala has agreed to bear the medical expenses for minor child. A letter to that effect from Alimann Charitable Trust is already placed on record.”

Certified copy expedited.

(CASE 5)

An aged couple had a nice bungalow of ground and one upper floor at Vile Parle Mumbai. Their son for more than 25 years has been residing in USA. An Architect and Developer became friendly with this aged couple and promised to redevelop the whole property by constructing 4 additional floors and share the profits with them. The aged couple got the documents completed by a Chartered Accountant and also executed an Irrevocable Power of Attorney in favour of the Developer for developing the property. The son in USA was kept informed.

As the development of the building was taking place the aged couple realised that the Developer had constructed 6 floors instead of 4 and dispute arose between the aged couple and the Developer. To resolve the matter the son and his wife came from Los Angeles, looked at the project and found that the Developer had gone beyond the terms of the Agreement. He contacted the Developer and heated arguments took place. There was an Arbitration Clause in the Agreement which was invoked by both the parties and the matter came up before the Bombay High Court.

The Hon’ble Judge hearing both the sides and seeing that both sides were agreeable to the appointment of Arbitrator an Order was passed for referring the matter for Arbitration. A preliminary meeting was held with the Arbitrator mentioning his fees and gave necessary directions for filing the papers. The son who had come from USA inquired from his Advocate whether he would be arguing the matter before the Arbitrator. The Advocate said that a Counsel is appearing for the Developer and hence he would have to engage a Counsel. Looking at the frightful expenses the son started inquiring from his friends and relatives as to how to go about with such huge expenses and with time frame for the Arbitration to come to an end. Someone informed him to come to my office for advice. When the aged parents, the son and his wife came to my office they were totally frustrated and angry with the Developer and were not willing to go in for an expensive Arbitration. I suggested to them that I conduct Conciliation and explained to them the process of Conciliation and the benefits arising from the same. They liked the idea and I contacted the other side Advocate and asked him if he would like to do co-Conciliation to resolve this matter. The Advocate did not want to have co-Conciliation but “Without Prejudice” meetings or direct negotiations to see if the matter could be resolved amicably between the parties as the Developer was also not inclined to incur huge expenses on Arbitration proceedings. Meetings were held and the process though termed as negotiation was in reality a co-Conciliation where joint and private sessions were held and gradually the parties were brought to an Agreement in about 12 to 14 meetings. The Sole Arbitrator was kept informed about the progress and Consent Terms were filed before the Sole Arbitrator who gave Consent Award after going through the Consent Terms. The situation was win-win situation for both parties and the Advocates also benefited in their professional work. The Arbitrator also charged for his one day hearing and that is how the matter came to a happy ending.

(CASE 6)

One case came up in Court when a woman after 28 years of marriage was seeking divorce from her husband. The husband was addicted to hard drinks and he used to come home late at night, use abusive language and beat his wife and children mercilessly. Ultimately being fed up the wife filed a case for divorce. The Court referred the matter to Conciliation of an experienced Conciliator. The Conciliator called a preliminary meeting, introduced himself to the Parties and thereafter asked the Parties who would like to make the Opening Statement. The husband stated that let his wife begin her Opening Statement. The Conciliator informed the husband that whilst the wife was making her Opening Statement, he should listen carefully and should not interrupt her.

The wife in her Opening Statement stated that for five years she was harassed and she and her children were beaten up and the husband was addicted to hard drinks. The husband did not provide any money for their maintenance and education of the children. She sought divorce from the husband, as she did not want to be humiliated, abused and beaten up and that her children too were fed up with the husband’s habits. The Conciliator asked the wife if she had anything to say and she said that she wanted only a divorce and nothing more. The Conciliator then looked at the husband and said that he could make his Opening Statement and Response to the wife.

The husband began by saying that five to six years ago he was a very responsible husband, had no vices and never used to drink or smoke. He was working in a Government office and had to travel from suburbs to his office. As he suffered from acidity as such, he could not take any canteen / hotel food. In those days upon his return his wife would serve him a hot dinner and then they would spend time together, eat together and would talk after the dinner. He loved his children very much and looked after their education and well being right from the day they were born. He further said that five to six years ago his wife had started watching Television and whenever he returned home by 8.00 pm she was glued to the Television set. The second time the husband repeated the term watching TV; the wife got up and slapped the husband in the presence of the Conciliator. The Conciliator had lost eye contact with the wife and if he had noticed the wife, this incident could have been prevented.

The Conciliator immediately pointed out that this was an abuse of the process of the Court and this indiscipline would not be tolerated and that he would make report to the Court that the Conciliation had failed and the Court could proceed with the matter. The wife realized her mistake and profusely apologized for her behaviour and assured that she would not repeat the mistake again. The Conciliator asked the wife to apologize to her husband which she did. Thereafter the Conciliator asked the husband to continue and he said that after returning home from office she did not serve him dinner or even offer a glass of water or tea. Looking at the behaviour of the wife the husband started going out and meeting friends and took up drinks. Then he got addicted to alcohol and in this manner he ruined his family life and his own happiness. He however desired to amend his mistakes.

The Conciliator tried to generate some options. Firstly, he asked the wife whether she could stop watching television for sometime and serve the dinner when her husband returned from work. She said that during the time her favourite serials would be coming and she would not like to miss them. The second option the Conciliator tried to generate was to ask the wife whether she could watch the serials which also come in the afternoon and at late night. She said that she is a teacher and she gets up early in the morning and goes to school by 8 am and returns home after 4 pm and thereafter her students come for tuitions which generates good income for her. By the time she takes tuitions it is 7 p.m. and thereafter she watches television for relaxation from the hard day of work. That is why she cannot see the serials in the afternoon as well as in the night. The husband was asked whether he could cooperate in any manner to save the marriage. He said that he was suffering from acidity problem and he looks forward to the home-cooked food when he comes back home from office.

Then the Conciliator suggested why don’t they buy Video Cassette Recorder (VCR) with a timer so that during the dinner time they could record the serials and later on or during the holidays could watch the serials together. The Conciliator requested them to try it out for two weeks and adjourned the matter. After two weeks both of them came to the Conciliator’s office with broad smiles on their faces and said that they have made up their minds and there is no need for divorce. They also said that they are now going out in the evenings after dinner and watch movies in the cinema theaters and on holidays see the serials which is convenient in their VCR. They thanked the Conciliator and said their Advocates would make the application to the Court for withdrawing the Divorce Petition. Thus the marriage was saved and disputes reconciled to the entire satisfaction of both husband and wife and the children.

(CASE 7)

There was a couple who had with their sweat and blood constructed a hotel on a prominent beach in Mumbai city and resided on the upper floor of the hotel. The husband was suffering from asthma and always required an inhaler whenever he had an attack of asthma. One night the husband and wife went to a wedding reception and returned home very late after midnight. Being tired they immediately went to sleep. They had a new housemaid who had forgotten to keep the inhaler near the bed. Sometime in the night at about 2 or 3 am the husband got a severe attack of asthma. He searched for the inhaler besides the bed, he crawled to the dressing table to find the inhaler and not finding it, he collapsed and died. On the husband’s death the wife was scared and also apprehensive about the future of her three minor daughters as the property was joint family property.

The family of the husband came to Mumbai and behaved rudely with the widow making all sorts of allegations against her. After few days, when the religious ceremonies were over, the widow came to my office to file a suit and safeguard her rights in the property. After discussing the matter at length, I asked the widow whether she had spoken about her frustration to any of the family members. She said that it was pointless as her father in law who is nearly 80 years old and three brothers in law would never allow the father in law to come to any settlement. I asked her if she could write a letter to her father in law expressing her difficulties and frustrations and if there was no response, legal proceedings would be adopted. Next day she brought a one paragraph letter without giving any details of her sufferings.

I asked her if I could redraft the letter to which she agreed. Since I knew the frustration and the pain she was going through, I was able to put in the letter, the entire frustration and anxiety for her three daughters and their future. The letter was sent to the father in law in Hyderabad and immediately within three days the widow received a telephone call from her father in law and the first question that was put to her was “Who had written the letter”. The widow mentioned that it was drafted by a Solicitor under her instructions. The father in law requested her to take an appointment as he along with his two sons would like to meet the Solicitor.

After few days they came to Mumbai and at my office, I explained to them the benefits of Conciliation and whether they would be agreeable to settle the matter through the process of Conciliation which would be without prejudice to their rights. I also convinced them that I would act as Conciliator impartially and with fairness to both the Parties and assured the father in law that in case the Conciliation fails, I would not act as an Advocate for the widow. I also told them that anything said during the course of the Conciliation would be totally confidential and nothing said in Conciliation or any proposals made would be revealed to the Court, nor I will come as witness for any of the Parties. This communication in the first meeting and the letter written earlier, convinced both the parties that Conciliation would be the best way to resolve the disputes between them and that if the Conciliation does not succeed, the parties would be at the liberty to adopt their own legal proceedings as they may feel appropriate.

The Conciliation process commenced and within three days the whole matter was resolved between the entire family and a Memorandum of Understanding was signed with all the members resulting into a win-win situation in which the entire relationship was maintained, as also an amicable settlement was arrived at between the parties only because of the communication which took place between the parties through the Conciliator.

(CASE 8)

In a well known case in USA, there was dispute between the black farmers and white farmers which is now known as “black farmer’s case” during the time tenure of President Bill Clinton. The white farmers have had received certain subsidies from Financial Institutions which black farmers did not receive. The black farmers strongly objected to the millions of dollars in subsidies given to white farmers and which was not given to the black farmers. A case was filed and proceedings were conducted. News Media published the matter in the Newspapers as a result of which the hostility between the black farmers and white farmers accelerated. Hatred, jealousy and enmity prevailed. Judges of the Supreme Court in their wisdom referred the matter to Conciliation.

Two Conciliators were appointed one on behalf of the white farmers and the other on behalf of the black farmers. Two Conciliators jointly worked for 2 to 3 months and brought about a win-win situation for both parties. In this case in respect of the finance, Financial Institutions representatives and all those concerned, participated in the process of Conciliation and reached a consensus by which the matter was resolved to the satisfaction of the parties, Government and Financial Institutions. If the matter were to be heard by the Court, then it would have further increased the enmity between the blacks and whites that could possibly have divided the country and have led to serious political consequences. Conciliation worked and the matter got resolved expeditiously to the satisfaction of all.

Property disputes in families often lead to bad relations and fights which at sometime might even turn into murders.

                                                                                                                     Name:Valeny D’cunha

                                                                                                                       Roll no:4256

                                                                                                                      Class:Journalism

Registrar of Newspapers for India

Registrar of Newspapers for India, more popularly known as RNI, is a statutory body of Government of India for newspapers in India. It was established on 1 July 1956, on the recommendation of the First Press Commission in 1953 and by amending the Press and Registration of Books Act 1867. The Office of the Registrar of Newspapers for India is headquartered in New Delhi, and has five regional offices at Kolkata, Mumbai, Chennai, Bhopal and Guwahati. RNI regulates and monitors printing and publication of newspapers based on the Press and Registration of Books Act, 1867 and the Registration of Newspapers (Central) Rules, 1956.[3] The registrar is designated as Press Registrar, and S M Khan a 1982 batch senior IIS officer is the current Press Registrar and Head of Department.

The Press and Registration of Books Act contains the duties and functions of the RNI. On account of some more responsibilities entrusted upon RNI during all these years, the office is performing both statutory as well as some non-statutory functions. Online registration system was formally inaugurated in 2004 by the Information and Broadcasting Mnister S. Jaipal Reddy.

Duties

Under statutory functions, RNI performs the following duties

·        Compilation and maintenance of a Register of Newspapers containing particulars about all the newspapers published;

·        Issue of Certificate of Registration to newspapers published under valid declaration;

·        Scrutiny and analysis of annual statements sent by the publishers of newspapers every year under PRB Act containing information on circulation, ownership etc.;

·        Informing district magistrates about availability of titles, to intending publishers for filing declaration;

·        Ensuring that newspapers are published in accordance with the provisions of PRB Act 1867 and the rules made thereunder;

·        Verification under Section 19-F of PRB Act, of circulation claims furnished by the publishers in their Annual Statements; and

·        Preparation and submission to the Government on or before 31 December each year, a report containing all available information and statistics about the press in India with particular reference to the emerging trends in circulation and in the direction of common ownership units etc.

The following fall under the non-statutory functions:

·        Formulation of Newsprint Allocation Policy – Guidelines and issue of Eligibility Certificate to the newspapers to enable them to import newsprint and to procure indigenous newsprint;

·        Assessing and certifying the essential need and requirement of newspaper establishments to import printing and composing machinery and allied materials.

Registration

Registrar maintains the legal procedures for registering a newspaper, which can be summarised as:

1.   As a first stage, the applicant applies for title verification of the publication to the jurisdictional District Magistrate. The District Magistrate will get the title verified from RNI.

2.   After receiving the title verification letter from RNI, the applicant needs to file a declaration for authentication before District Magistrate.

3.   After authentication, the newspaper must be published within 6 weeks if it is published once a week or oftener than that. In case of any other periodicity, the first issue should be published within 3 months from the date of authentication.

4.   After the first issue is published, the applicant needs to file an application for registration, enclosing the following documents

1.  Title verification letter

2.  Authenticated declaration

3.  An affidavit for no foreign tie-up

4.  First issue and latest issue of the publication

5.  Content intimation/ confirmation in the prescribed form

6.  Certificate intimating appointment of the printer

Registrar of Newspapers for India

Registrar of Newspapers for India, more popularly known as RNI, is a statutory body of Government of India for newspapers in India. It was established on 1 July 1956, on the recommendation of the First Press Commission in 1953 and by amending the Press and Registration of Books Act 1867. The Office of the Registrar of Newspapers for India is headquartered in New Delhi, and has five regional offices at Kolkata, Mumbai, Chennai, Bhopal and Guwahati. RNI regulates and monitors printing and publication of newspapers based on the Press and Registration of Books Act, 1867 and the Registration of Newspapers (Central) Rules, 1956.[3] The registrar is designated as Press Registrar, and S M Khan a 1982 batch senior IIS officer is the current Press Registrar and Head of Department.

The Press and Registration of Books Act contains the duties and functions of the RNI. On account of some more responsibilities entrusted upon RNI during all these years, the office is performing both statutory as well as some non-statutory functions. Online registration system was formally inaugurated in 2004 by the Information and Broadcasting Mnister S. Jaipal Reddy.

Duties

Under statutory functions, RNI performs the following duties

  • Compilation and maintenance of a Register of Newspapers containing particulars about all the newspapers published;
  • Issue of Certificate of Registration to newspapers published under valid declaration;
  • Scrutiny and analysis of annual statements sent by the publishers of newspapers every year under PRB Act containing information on circulation, ownership etc.;
  • Informing district magistrates about availability of titles, to intending publishers for filing declaration;
  • Ensuring that newspapers are published in accordance with the provisions of PRB Act 1867 and the rules made thereunder;
  • Verification under Section 19-F of PRB Act, of circulation claims furnished by the publishers in their Annual Statements; and
  • Preparation and submission to the Government on or before 31 December each year, a report containing all available information and statistics about the press in India with particular reference to the emerging trends in circulation and in the direction of common ownership units etc.

The following fall under the non-statutory functions:

  • Formulation of Newsprint Allocation Policy – Guidelines and issue of Eligibility Certificate to the newspapers to enable them to import newsprint and to procure indigenous newsprint;
  • Assessing and certifying the essential need and requirement of newspaper establishments to import printing and composing machinery and allied materials.

Registration

Registrar maintains the legal procedures for registering a newspaper, which can be summarised as:

  1. As a first stage, the applicant applies for title verification of the publication to the jurisdictional District Magistrate. The District Magistrate will get the title verified from RNI.
  2. After receiving the title verification letter from RNI, the applicant needs to file a declaration for authentication before District Magistrate.
  3. After authentication, the newspaper must be published within 6 weeks if it is published once a week or oftener than that. In case of any other periodicity, the first issue should be published within 3 months from the date of authentication.
  4. After the first issue is published, the applicant needs to file an application for registration, enclosing the following documents
    1. Title verification letter
    2. Authenticated declaration
    3. An affidavit for no foreign tie-up
    4. First issue and latest issue of the publication
    5. Content intimation/ confirmation in the prescribed form
    6. Certificate intimating appointment of the printer
Monopolistic And Restrictive Trade Practice Act 1969
Introduction
The Monopolistic and Restrictive Trade Practices Act, 1969, was enactedTo ensure that the operation of the economic system does not result in the concentration of economic power in hands of few,To provide for the control of monopolies, andTo prohibit monopolistic and restrictive trade practices.The MRTP Act extends to the whole of India except Jammu and Kashmir. Unless the Central Government otherwise directs, this act shall not apply to:Any undertaking owned or controlled by the Government Company,Any undertaking owned or controlled by the Government,Any undertaking owned or controlled by a corporation (not being a company established by or under any Central, Provincial or State Act,Any trade union or other association of workmen or employees formed for their own reasonable protection as such workmen or employees,Any undertaking engaged in an industry, the management of which has been taken over by any person or body of persons under powers by the Central Government,Any undertaking owned by a co-operative society formed and registered under any Central, Provincial or state Act,Any financial institution.
Restrictive Trade Practice
A restrictive trade practice is a trade practice, whichPrevents, distorts or restricts competition in any manner; orObstructs the flow of capital or resources into the stream of production; orWhich tends to bring about manipulation of prices or conditions of delivery or effected the flow of supplies in the market of any goods or services, imposing on the consumers unjustified cost or restrictions.INQUIRY INTO RESTRICTIVE PRACTICES The Commission may inquire into any restrictive trade practiceUpon receiving a complaint from any trade association, consumer or a registered consumer association, orUpon a reference made to it by the Central or State Government orUpon its own knowledge or informationRELIEF AVAILABLE The commission shall if after making an inquiry it is of the opinion that the practice is prejudicial to the pubic interest, or to the interest of any consumer it may direct that–The practice shall be discontinued or shall not be repeated;The agreement relating thereto shall be void in respect of such restrictive trade practice or shall stand modified.The Commission may permit the party to any restrictive trade practice to take steps so that it is no longer prejudicial to the public interestHowever no order shall be made in respect ofany agreement between buyers relating to goods which are bought by the buyers for consumption and not for ultimate resale;a trade practice which is expressly authorised by any law in force.
Unfair Trade Practice
WHAT IS UNFAIR TRADE PRACTICE ? An unfair trade practice means a trade practice, which, for the purpose of promoting any sale, use or supply of any goods or services, adopts unfair method, or unfair or deceptive practice. Unfair practices may be categorised as under:FALSE REPRESENTATIONThe practice of making any oral or written statement or representation which:Falsely suggests that the goods are of a particular standard quality, quantity, grade, composition, style or model;Falsely suggests that the services are of a particular standard, quantity or grade;Falsely suggests any re-built, second-hand renovated, reconditioned or old goods as new goods;Represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which they do not have;Represents that the seller or the supplier has a sponsorship or approval or affiliation which he does not have;Makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;Gives any warranty or guarantee of the performance, efficacy or length of life of the goods, that is not based on an adequate or proper test;Makes to the public a representation in the form that purports to be-a warranty or guarantee of the goods or services,a promise to replace, maintain or repair the goods until it has achieved a specified result,if such representation is materially misleading or there is no reasonable prospect that such warranty, guarantee or promise will be fulfilledMaterially misleads about the prices at which such goods or services are available in the market; orGives false or misleading facts disparaging the goods, services or trade of another person.FALSE OFFER OF BARGAIN PRICE-Where an advertisement is published in a newspaper or otherwise, whereby goods or services are offered at a bargain price when in fact there is no intention that the same may be offered at that price, for a reasonable period or reasonable quantity, it shall amount to an unfair trade practice. The ‘bargain price’, for this purpose means-the price stated in the advertisement in such manner as suggests that it is lesser than the ordinary price, orthe price which any person coming across the advertisement would believe to be better than the price at which such goods are ordinarily sold.FREE GIFTS OFFER AND PRIZE SCHEMESThe unfair trade practices under this category are:Offering any gifts, prizes or other items along with the goods when the real intention is different, orCreating impression that something is being offered free alongwith the goods, when in fact the price is wholly or partly covered by the price of the article sold, orOffering some prizes to the buyers by the conduct of any contest, lottery or game of chance or skill, with real intention to promote sales or business.NON-COMPLIANCE OF PRESCRIBED STANDARDSAny sale or supply of goods, for use by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by some competent authority, in relation to their performance, composition, contents, design, construction, finishing or packing, as are necessary to prevent or reduce the risk of injury to the person using such goods, shall amount to an unfair trade practice.HOARDING, DESTRUCTION, ETC.Any practice that permits the hoarding or destruction of goods, or refusal to sell the goods or provide any services, with an intention to raise the cost of those or other similar goods or services, shall be an unfair trade practice.INQUIRY INTO UNFAIR TRADE PRACTICESThe Commission may inquire intoAny unfair trade practiceUpon receiving a complaint from any trade association, consumer or a registered consumer association, orUpon reference made to it by the Central Government or State GovernmentUpon an application to it by the Director General orUpon its own knowledge or information.RELIEF AVAILABLEAfter making an inquiry into the unfair trade practice if the Commission is of the opinion that the practice is prejudicial to the pubic interest, or to the interest of any consumer it may direct that–The practice shall be discontinued or shall not be repeated;The agreement relating thereto shall be void in respect of such unfair trade practice or shall stand modified.Any information, statement or advertisement relating to such unfair trade practice shall be disclosed, issued or published as may be specifiedThe Commission may permit the party to carry on any trade practice to take steps to ensure that it is no longer prejudicial to the public interest or to the interest of the consumer.However no order shall be made in respect a trade practice which is expressly authorised by any law in force. The Commission is empowered to direct publication of corrective advertisement and disclosure of additional information while passing orders relating to unfair trade practices.
Monopolistic Trade Practices
A monopolistic trade practice is one, which has or is likely to have the effect of:maintaining the prices of goods or charges for the services at an unreasonable levelby limiting, reducing or otherwise controlling the production, supply or distribution of goods or services;unreasonably preventing or lessening competition in the production, supply or distribution of any goods or services whether or not by adopting unfair method or fair or deceptive practices;limiting technical development or capital investment to the common detriment;deteriorating the quality of any goods produced, supplied or distribute; andincreasing unreasonably-the cost of production of any good; orcharges for the provision, or maintenance,of any services; orthe prices for sale or resale of goods; orthe profits derived from the production, supply or distribution of any goods or services.A monopolistic trade practice is deemed to be prejudicial to the public interest, unless it is expressly authorized under any law or the Central Government permits to carry on any such practice.INQUIRY INTO MONOPOLISTIC TRADE PRACTICES The Commission may inquire into Any monopolistic trade practice,Upon a reference made to it by the Central Government orUpon an application made to it by the Director General orUpon it own knowledge or informationRELIEF AVAILABLEWhere the inquiry by the Commission reveals that the trade practice inquired into operates or is likely to operate against public interest, the Central Government may pass such orders as it thinks fit to remedy or present any mischief resulting from such trade practice.On an inquiry report of the Commission, the Central Government may-Prohibit the owner(s) of the concerned undertaking(s) from continuing to indulge in a monopolistic trade practice; orProhibit the owner of any class of undertakings or undertakings generally, from continuing to indulge in any monopolistic trade practice in relation to the goods or services.The Central Government may also make an order:Regulating the production, storage, supply, distribution, or control of any goods or services by an undertaking and fixing the terms of their sale (including prices) or supply;Prohibit any act or practice or commercial policy which prevents or lessens competition in the production, storage, supply or distribution of any goods or services;Fixing standards for the goods used or produced by an undertaking;Declaring unlawful the making or carrying out of the specified agreement;Requiring any party to the specified agreement to determine the agreement within the specified time, either wholly or to specified extent;Regulating the profits which may be derived from the production, storage, supply, distribution or control of any goods or services; orRegulating the quality of any goods or services so that their standard does not deteriorate.
Powers of The Commission
The MRTP Commission has the following powers:Power of Civil Court under the Code of Civil Procedure, with respect to:Summoning and enforcing the attendance of any witness and examining him on oath;Discovery and production of any document or other material object producible as evidence;Reception of evidence on affidavits;Requisition of any public record from any court or office.Issuing any commission for examination of witness; andAppearance of parties and consequence of non-appearance.Proceedings before the commission are deemed as judicial proceedings with in the meaning of sections 193 and 228 of the Indian Penal Code.To require any person to produce before it and to examine and keep any books of accounts or other documents relating to the trade practice, in its custody.To require any person to furnish such information as respects the trade practice as may be required or such other information as may be in his possession in relation to the trade carried on by any other person.To authorise any of its officers to enter and search any undertaking or seize any books or papers, relating to an undertaking, in relation to which the inquiry is being made, if the commission suspects tat such books or papers are being or may be destroyed, mutilated, altered, falsified or secreted.PRELIMINARY INVESTIGATION Before making an inquiry, the Commission may order the Director General to make a preliminary investigation into the complaint, so as to satisfy itself that the complaint is genuine and deserves to be inquired into.
Remedies under The Act
The remedies available under this act are- TEMPORARY INJUNCTION Where, during any inquiry, the commission is satisfied that any undertaking or any person is carrying on, or is about to carry on, any monopolistic, restrictive or unfair trade practice, which is a pre-judicial to the public interest or the interest of any trader or class of traders generally, or of any consumer or class of consumers, or consumers generally, the commission may grant a temporary injunction restraining such undertaking or person form carrying on such practice until the conclusion of inquiry or until further orders. COMPENSATION Where any monopolistic, restrictive or unfair trade practice has caused damage to any Government, or trader or consumer, an application may be made to the Commission asking for compensation, and the Commission may award appropriate compensation. Where any such loss or damage is caused to a number of persons having the same interest, compensation can be claimed with the permission of the commission, by any of them on behalf of all of them.

THE CONTEMPT OF COURTS ACT, 1971

An Act to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto.

Be it enacted by Parliament in the Twenty-second Year of the Republic of India as follows :

1. Short title and extent. ? (1) This Act may be called the Contempt of Courts Act, 1971.

(2) It extends to the whole of India:

Provided that it shall not apply to the State of Jammu and Kashmir except to the extent to which the provisions of this Act relate to contempt of the Supreme Court.

2. Definitions. ? In this Act, unless the context otherwise requires, ?

?(a)? ?contempt of court? means civil contempt or criminal contempt; ?(b)? ?civil contempt? means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court; (c)? ?criminal contempt? means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which ?

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner; (d) ?High Court? means the High Court for a State or a Union territory, and includes the court of the Judicial Commissioner in any Union territory. Comments

? Breach of an undertaking given to a Court by a person in civil proceedings, on the faith of which the Court sanctions a course of action is misconduct amounting to contempt of court. Noorali Babul Thanewala v. K.M.M. Shetty, AIR 1990 S.C. 464.

? The power to penalise an officer of the Court should be exercised in those cases where the order is deliberately not obeyed or compliance is not made. C.P. Singh v. State of Rajasthan, 1993 Cr.L.J. 125.

? Advocate making libellous allegations against sitting Judges of High Court amounts to interference with administration of justice. Pritam Lal v. High Court of M.P. 1992 Cr.L.J. 1269= AIR 1992 SC 904

? What it constitutes ? Scandalising Court or Judge, undermining people’s confidence in administration of justice and bringing or tending to bring the Court into disrepute or disrespect tantamount to criminal contempt ? Scurrilous attack on a Judge questioning his authority would amount to contempt. Dr. D.C. Saxena v. Hon’ble The C.J.I., J.T. 1996(6) S.C. 529 = 1996(5) SCC 216.

? Civil contempt ? Where action of contemner is wilful, deliberate and in clear disregard of Court’s? order, it amounts to civil contempt. Amar Bahadurising v. P.D. Wasnik and others. 1994 Cri.L.J 1359 =1994(2) Bom CR 464 (Bom)

? Contempt proceedings ? Initiated on basis of the report of an official ? Principles of natural justice require that the copy of the report should be furnished to contemner and opportunity be

afforded to put forth his? say against the report. A. Dharmarajan v. Collector of Kamarajar Distt. Virduhunagar Distt. and others. 1994 Cri.L.J 3585 (Madras)

? Contempt ? Consequential directions ? Can be issued for enforcing order. Dr. Subhash Chandra Pratihar v. Mr. Leena Chakraborty and others. 1995 Cri.L.J. 707 (Cal.)

? Contempt ? Sentence ? The fact that the petitioner is an I.A.S? officer is of no consequence so far as the sentence is concerned. J. Vasudevan v. T.R. Dhananjaya. 1995 Cri.L.J. 4192 (S.C)

? Criminal? contempt ? Illegal mining ? Petitioner environmental activists ? Visiting area of inspection along with Committee constituted by Supreme? Court ?? Petitioner manhandled by mine owner ? Mine owner guilty of criminal? contempt. Tarun Bharat Sangh Alwar v. Union of India? and others. 1993 Cri.L.J. 50 = AIR 1993 SC 293 = 1992 Supp(2) SCC 750 (SC)

? Breach? of undertaking ? Inability to vacate house as his son had become major ? Stand taken found to be? dishonest ? Conviction ordered. Venubai Saveleram Songaonkar v. Gajanan Savleram alias Sawalaram Songaonkar and other. 1992 Cri.L.J.? 1160 (Bom)

? Criminal contempt ? Advocates storming various court rooms ? Individually and collectively stood? on chairs, table and dias of Court ? Prevented various lawyers from discharging their judicial functions ? Are guilty of contempt of court. Court? of its own motion v. B.D. Kaushik and others. 1993 Cri.L.J. 336 (Delhi)

? Contempt proceedings ? Are not criminal proceedings ? Are proceedings of summary nature. Vidya Charan Shukla v. Tamil Nadu Olympic Association. ?1991 Cri.L.J. 2722 = AIR 1991 Mad 323 (Mad)

? Civil contempt ? Interim order passed by Supreme Court ? subsequent action in filing civil suit seeking injunction ? Amounts to contempt. Delhi Development Authority v. Skipper Construction and another 1995 Cri.L.J. 2107 (SC)

? Review ? Order holding person guilty of contempt cannot be reviewed, Senior Sub-Judge. Dharamsala v. R.A. Kansal. 1991 Cri.L.J 2432 = 1991(2) Rec Cri.R. 677 (H.P)

? Criminal Contempt ? Notice? containing allegations and? scandalour remarks ? Advocate who drafted notice cannot escape liability. Shamsher Singh Bedi v. High Court of? P & H. 1995 Cri.L.J. 3627 (SC)

3. Innocent publication and distribution of matter not contempt. ? (1) A person shall not be guilty of contempt of court on the ground that he has published (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at that time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending.

(2) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, the publication of any such matter as is mentioned in sub-section (1) in connection with any civil or criminal proceeding which is not pending at the time of publication shall not be deemed to constitute contempt of court.

(3) A person shall not be guilty of contempt of court on the ground that he has distributed a publication containing any such matter as is mentioned in sub-section (1), if at the time of distribution he had no reasonable grounds for believing that it contained or was likely to contain any such matter as aforesaid:

Provided that this sub-section shall not apply in respect of the distribution of ?

?(i)? any publication which is a book or paper printed or published otherwise than in conformity with the rules contained in section 3 of the Press and Registration of Books Act, 1867 (25 of 1867);

?(ii)? any publication which is a newspaper published otherwise than in conformity with the rules contained in Section 5 of the said Act. Explanation. ? For the purpose of this section, a judicial proceeding ?

?(a)? is said to be pending ?

(A) in the case of a civil proceeding, when it is instituted by the filing of a plaint or otherwise, (B) in the case of a criminal proceeding under the i[1] [Code of Criminal Procedure, 1895 (5 of 1898], or any other law ? ?(i)where it relates to the commission of an offence, when the charge sheet or challan is filed, or when the court issues summons or warrant, as the case may be, against the accused, and ?(ii)in any other case, when the court takes cognizance of the matter to which the proceeding relates, and in the case of a civil or criminal proceeding, shall be deemed to continue to be pending until it is heard and finally decided, that is to say, in a case where an appeal or revision is competent, until the appeal or revision is heard and finally decided or, where no appeal or revision is preferred, until the period of limitation prescribed for such appeal or revision has expired; ?(b)? which has been heard and finally decided shall not be deemed to be pending merely by reason of the fact that proceedings for the execution of the decree, order or sentence passed therein are pending. 4. Fair and accurate report of judicial proceeding not contempt. ? Subject to the provisions contained in Section 7, a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof.

5. Fair criticism of judicial act no contempt. ? A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided.

Comments

Criticism of Court? when transgresses the limits of fair and bona fide criticism amounts to contempt of court. (Aswini Kumar Ghose v. Arbinda Bose, AIR 1953 S. C. 75).

6. Complaint agai nst presiding officers of subordinate courts when not contempt.? ?? A person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presiding officer of any subordinate court to ?

?(a)? any other subordinate court, or ?(b)? the High Court, to which it is subordinate.

Explanation. ? In this section ?subordinate court? means any court subordinate to a High Court.

7. Publication of information relating to proceeding in chambers or in camera not contempt except in certain cases. ? (1) Notwithstanding anything contained in this Act, a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding before any court sitting in chambers or in camera except in the following cases, that is to say, ?

?(a)? where the publication is contrary to the provisions of any enactment for the time being in force; ?(b)? where the court, on grounds of public policy or in exercise of any power vested in it, expressly prohibits the publication of all information relating to the proceeding or of information of the description which is published; ?(c)? where the court sits in chambers or in camera for reason connected with public order or the security of the State, the publication of information relating to those proceedings;

?(d)? where the information relates to a secret process, discovery or invention which is an issue in the proceedings. (2) Without prejudice to the provisions contained in sub-section (1), a person shall not be guilty of contempt of court for publishing the text or a fair and accurate summary of the whole, or any part, of an order made by a court sitting in chambers or in camera, unless the court has expressly prohibited the publication thereof grounds of public policy, or for reasons connected with public order or the security of the State, or on the ground that it contains information relating to a secret process, discovery or invention, or in exercise of any power vested in it.

8. Other defences not affected. ? Nothing contained in this Act shall be construed as implying that any other defence which would have been a valid defence in any proceedings for contempt of court has ceased to be available merely by reason of the provisions of this Act.

9. Act not to imply enlargement of scope of contempt. ? Nothing contained in this Act shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court which would not be so punishable apart from this Act.

10. Power of High Court to punish contempts of subordinate courts.? ? Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempts of itself:

Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860).

Comments

High Court can take action for contempt of subordinate court under Section 2 of? 1926 Acts for defamation of the Judge though the aggrieved officer may have remedies such as Sec. 499 I.P.C.? (Bathina Ramakrishna Reddy v. State of Madras, AIR 1952 S.C. 149)

High Court in exercise of its powers under Section 10 cannot interfere with the complaints filed for disobedience of breach of injunction order temporarily issued during the pendency of a suit.? Shaik Mohiddin v. Section Officer, Karnataka Electricity Board, Kaiwara.1994 Cri.L.J.3689 = ILR (Kar) 1994 2513 (kant)

11. Power of High Court to try offences committed or offenders found outside jurisdiction. ? A High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits.

12. Punishment for contempt of court. ? (1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:

Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

Explanation. ? An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

(2) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.

(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence

of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.

(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person:

Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.

(5) Nothwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.

Explanation. ? For the purpose of sub-sections (4) and (5) ?

?(a)? ?company? means any body corporate and includes a firm or other association of individuals; and ?(b)? ?director?, in relation to a firm, means a partner in the firm.

Comments

??Ad interim injunction limited to specific period?No extension?No contempt if violation is alleged after expiry of stipulated period. N.Rathinasabapathy v. K.S. Palaniappa Kandar. 1995 Cri.L.J. 3622 (SC)

??Criminal Contempt?newspaper article?Liability of editor extends to all acts committed pertaining to publication. B.A. Rather and another v. H.K. Dua and other. 1994 Cir.L.J. 3414 (J & K).??Illegal confinement during the period when appellant was on anticipatory bail?Act confining to prison not only atrocious but interfering with due course of justice and amounting to deliberate attempt to obstruct administration of justice?Simple imprisonment of one month awarded for illegal confinement.? Rajendra Kumar &anr. Versus State of Rajasthan and Other.? 1996 Cr. R. 852 (Raj). 13. Contempts not punishable in certain cases. ? Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice. 14. Procedure where contempt is in the face of the Supreme Court or a High Court. ? (1) When it is alleged, or appears to the Supreme Court or the High Court upon it own view, that a person has been guilty of contempt committed in its presence or hearing, the court may cause such person to be detained in custody, and, at any time before the rising of the court, on the same day, or as early as possible thereafter, shall ?

?(a)? cause him to be informed in writing of the contempt with which he is charged; ?(b)?? afford him an opportunity to make his defence to the charge; ?(c)? after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge; and

?(d)? make such order for the punishment or discharged of such person as may be just. (2) Notwithstanding anything contained in sub-section (1), where a person charged with contempt under that sub-section applies, whether orally or in writing, to have the charge against him tried by some Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, and the court is of opinion that it is practicable to do so and that in the interests of proper administration of justice the application should be allowed, it shall cause the matter to be placed, together with a statement of the facts of the case, before the Chief Justice for such directions as he may think fit to issue as respects the trial thereof.

(3) Notwithstanding anything contained in any other law, in any trial of a person charged with contempt under sub-section (1) which is held, in pursuance of a direction given under sub-section (2), by a Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, it shall not be necessary for the Judge or Judges in whose presence or hearing the offence is alleged to have been committed to appear as a witness and the statement placed before the Chief Justice under sub-section (2) shall be treated as evidence in the case.

(4) Pending the determination of the charge, the court may direct that a person charged with contempt under this section shall be detained in such custody as it may specify:

Provided further that the court may, if it thinks fit, instead of taking bail from such person, discharge him on his executing a bond without sureties for his attendance as aforesaid.

15. Cognizance of criminal contempt in other cases. ? (1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by ?

?(a)? the Advocate-General, or ?(b)? any other person, with the consent in writing of the Advocate-General, ii[2] [or] ?iii [3] [(c)? in relation to the High Court for the Union territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer.] (2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court on a motion made by the Advocate-General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.

(3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty.

Explanation. ? In this section, the expression ?Advocate-General? means ?

?(a)? in relation to the Supreme Court, the Attorney-General? or the Solicitor-General; ?(b)? in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court has been established. ?(c)? in relation to the court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf. 16. Contempt by judge, magistrate or other person acting judicially. ? (1) Subject to the provisions of any law for the time being in force, a judge, magistrate or other person acting judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply accordingly.

(2) Nothing in this section shall apply to any observations or remarks made by a judge, magistrate or other person acting judicially, regarding a subordinate court in an appeal or revision pending before such judge, magistrate or the person against the order or judgment of the subordinate court.

Comments

????Contempt proceedings against Judicial Officer are maintainable. Baba Abdul Khan v. Smt. A.D. Sawant. J.M.F.C., Nagpur and other, 1994 Cir.L.J. 2836 (Bom.)

17. Procedure after cognizance. ? (1) Notice of every proceeding under Section 15 shall be served personally on the person charged, unless the court for reasons to be recorded directs otherwise.

(2) The notice shall be accompanied ?

?(a)? in the case of proceedings commenced on a motion, by a copy of the motion as also copies of the affidavits, if any, on which such motion is founded; and ?(b)? in case of proceedings commenced on a reference by a subordinate court, by a copy of the reference. (3) The Court may, if it is satisfied that a person charged under Section 15 is likely to abscond or keep out of the way to avoid service of the notice, order the attachment of his property of such value or amount as it may deem reasonable.

(4) Every attachment under sub-section (3) shall be effected in the manner provided in the Code of Civil Procedure, 1908 (5 of 1908), for the attachment of property in execution of a decree for payment of money, and if, after such attachment, the person charged appears and shows to the satisfaction of the court that he did not abscond or keep out of the way to avoid service of the notice, the court shall order the release of his property from attachment upon such terms as to costs or otherwise as it may think fit.

(5) Any person charged with contempt under Section 15 may file an affidavit in support of his defence, and the court may determine the matter of the charge either on the affidavits filed or after taking such further evidence as may be necessary, and pass such order as the justice of the case requires,

18. Hearing of cases of criminal contempt to be by Benches. ? (1) Every case of criminal contempt under Section 15 shall be heard and determined by a Bench of not less than two Judges.

(2) Sub-section (1) shall not apply to the Court of a Judicial Commissioner.

19.? Appeals. ? (1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt ?

?(a)? where the order or decision is that of a single judge, to a Bench of not less than two Judge of the court; ?(b)? where the order or decision is that of a Bench, to the Supreme Court. Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.

(2) Pending any appeal, the appellate court may order that ?

?(a)? the execution of the punishment or order appealed against be suspended; ?(b)? if the appellant is in confinement, he be released on bail; and ?(c)? the appeal be heard notwithstanding that the appellant has not purged his contempt. (3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2).

(4) An appeal under sub-section (1) shall be filed ?

?(a)? in the case of an appeal to a Bench of the High Court, within thirty days;

?(b)? in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against.

Appeal?No appeal lies to a Division Bench against the order of a leamed single Judge dismissing the application filed for contempt of Court. S. Sammaiah and Other v. Andhra Pradesh State Electricity Board. 1994 Cri. J. 3830 = 1994(2) Andh LT 729= 1994 (2) APLJ 264(A.P.)

20. Limitation for actions for contempt. ? No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.

Contempt proceedings?Power of High Court?Is absolute and unfettered. A. Mayilswami v. State of kerala (FB) 1995 Cri.L.J. 3830 (Kerala)

21. Act not to apply to Nyaya Panchayats or other village courts. ? Nothing contained in this Act shall apply in relation to contempt of Nyaya Panchayats or other village courts, by whatever name known, for the administration of justice, established under any law.

22. Act to be in addition to, and not in derogation of, other laws relating to contempt. ? The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law relating to contempt of courts.

23. Power of Supreme Court and High Courts to make rules. ? The Supreme Court or, as the case may be, any High Court, may make rules, not inconsistent with the provisions of this Act, providing for any matter relating to its procedure.

24. Repeal. ?The Contempt of Courts Act, 1952 (32 of 1952), is hereby repealed.?

error: