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Grace & Peace,
Prerana
Introduction:
Lokpal is an anti-corruption ombudsman organization in India and Lokayukta in the Indian states. Lokpal has jurisdiction over all the Members of Parliament and Central Government employees and Lokayukta is its counterpart in all states. Ombudsman is a public advocate usually appointed by the Government but with significant independence who is charged with representing the interest of public by insvestigating and addressing complaints of maladministration or violation of rights.
Lokpal and Lokayukta was formed for redressal of citizens’ grievances as a result of the special interim report on “Problems of Redressal of Citizens’ Grievance” submitted by The Administration Reforms Commission (ARC) headed by Morarji Desai submitted in 1966. Lokayukta Act was enacted for investigations into allegation and grievances in respect of administrative actions relatable to matters specified in List II and III of the 7th Schedule of Indian Constitution. Lokpal was formed in 2013 after passing The Lokpal and Lokayukta Act, 2013.
Karnataka Lokayukta was established in the Indian State of Karnataka. Ramakrishna Hegde, the then Chief Minister of Karnataka introduced the Lokayukta and Upalokayukta bill in the assembly on 1983. As per the Lokayukta Act, Lokayukta is the person appointed who, either held the office of a judge in the Supreme Court or Chief Justice of the High Court of any State. The Lokayukta is appointed by the Governor of Karnataka on advice of Chief Minister, in consultation with the Chief Justice of the High Court of Karnataka, Legislative Assembly, the leader of the opposition in both houses. He has the power to investigate Chief Minister, all other Ministers, members of State Legislature and all government employees.
Karnataka Lokayukta Fiasco:
However, just like the saying ‘power corrupts, absolute power corrupts absolutely,’ Karnataka Lokayukta, Y.Bhaskar Rao is himself accused with corruption charges. Ironically he was appointed as the Lokayukta a year and a half back after Justice Shivraj V.Patil was exposed in illegal land allotments and was forced to resign. Despite the huge hue and cry from civic agencies, lawyers and general public asking Bhaskar Rao to resign as Lokayukta, he has brazenly chosen to stick to his seat. Section 6 of the Lokayukta Act does not empower the government to remove the Lokayukta.
With initial reports accusing Lokayukta officials of extorting money from government officials came out, Justice Bhaskar Rao, chose to ignore it. When the subsequent report mentioned that these activities took place from the official residence of the Lokayukta, Upa Lokayukta directed the Superintendent of Police, Sonia Narang who initiated the investigation into this matter to continue to probe into this matter in his order dated June 23, 2015. However, Bhaskar ordered for fresh enquiry by City Civil Branch, which was refused forcing Bhaskar to embarrassingly retract the order. Subsequently, he requested the State Government to constitute independent investigative team, which was accepted with the constitution of Special Investigation Team (SIT). Meanwhile, Justice Bhaskar Rao’s son got a stay order against the investigation requested by Justice Bhaskar Rao making it plain about the ghastly drama that is to unfold in the coming weeks. The present case involving Bhaskar Rao is particularly worrisome, as the accusations are not directly leveled on him but on his son Ashwin Rao.
Karnataka Lokayukta (Amendment) Bill:
This entire episode has moved State Government to introduce a new law that gives it more power to remove Lokayukta from office. The bill was introduced on Friday, 24th July, 2015 and was discussed for two days from July 30, 2015. The bill seeks to give more power to State Government to remove Lokayukta from office, it recommends simple majority of both houses instead of the present two – third majority of members present and voting. Also, while currently the investigation for removal of Lokayukta is done under Judges (Inquiry) Act, 1968, the new law suggests investigation, hearing and framing of charges within 90 days by the Chief Justice of India or judge appointed by him, following which Lokayukta can be removed with simple majority.
Apart from this, it also restricts Lokayukta from tackling maladministration in the government and prevents Lokayukta from checking the functioning of the institution. The bill, thereby, seeks to restrict the power of the Lokayukta to tackling corruption. The absolute liberty given to them is deemed as the reason why the institution ran an extortion racket to seek monetary benefits. Moreover, the amendment bill seeks to reduce the qualification of Lokayukta to a Karnataka High Court judge not having less than 10 years experience. Various former High Court and Supreme Court Judges have criticized this move. Former judge, Shivraj Patil, was of the opinion that Act should not be changed with respect to appointment of Lok Ayukta and Upa Lokayukta as the amendment weakens the Act instead of strengthening it. Former Chief Justice, V.S.Malimath termed the amendment hasty and suggested that a committee should be formed to propose the amendments as a change liked this needs a lot of introspection.
Moreover, the amendment has removed entire section 10 of the Act which empower Lokayukta to police to search, break open lockers, seize property or seize anyone. Lokayukta can only conduct enquiries under the Amendment Act while leaves the institution handicapped. Opposition Jagdish Shettar has also mentioned that the amendment was proposed to make the removal process easier. However, the amendments introduced by the government weaken the institution.
Nevertheless, the Government passed the Amendment Bill on 31st July, 2015 with a minor change with regard to removal of Lokayukta. It accepted BJP Member, Jagdish Shettar’s argument that support of simple majority would make Lokayukta a footman under the Government. Therefore, amendment bill mandates the initiation of removal process of Lokayukta with 1/3rd of the members in either house signing the motion and presenting it before Vidhan Parishad or the Vidhan Sabha. After a probe by the Chief Justice of High Court of Karnataka, support of 2/3rd of the legislators is needed for removal of the Lokayukta.
No one is above the law and it is pretty reprehensible that Justice Bhaskar Rao has refused to resign from his position in spite of such weighty allegations, even though he has spent several years dispensing justice and has decided the fate of various people due to everyone’s faith on a Chief Justice’s ability to distinguish between right and wrong. Yet, he is associated with incapacitating the stature of the very institution that is supposed to keep corruption at bay. I think it is more crucial to have checks and balances in place for the office of Lokayukta. Along with empowering it to investigate cases involving government officials, the institution’s activities should be kept under constant supervision.
Trespass:
Trespass is a physical interference by a person in a property belonging to another person. It could be a tort of trespass when there is a direct interference with the peaceful enjoyment of the land in the form of unlawful entry, unlawful placing of things or inducing dangerous things or animals into the land or it could be a criminal act provided under Section 441 of Indian Penal Code, 1860 which defines ‘criminal trespass’ as ‘Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered and unlawfully remains there.’ Intention is an element as ‘mens rea’ is important for an act to be criminal. Punishment for the same is provided under Section 447, which includes imprisonment for upto 3 months; fine upto Rs. 500 or both.
The Supreme Court examined the definition of a ‘trespass’ in 2010 in Laxmi Ram Pawar v. Sitabai Balu Dhotre[1], in the context of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. The Supreme Court was of the opinion that, ‘A trespass is an unlawful interference with one’s person, property or rights. With reference to property, it is wrongful invasion of another’s possession.’
A person who unlawfully remains in the property of the other is also liable for ‘trespass by remaining on the land.’ This is when a person lawfully enters into another persons’ property but remains there even after the right ceases to exist. There is ‘continuing trespass’ as well, which means that trespass by way of personal entry continues as long as the wrong-doer is personally on the land. Or, if he has induced a thing, trespass continues for as long as the thing is removed from the land.
Ingredients:
It can be gathered that, the essential ingredients of a criminal trespass, therefore are:
1.Entry into or upon property in the possession of another;
2.If such entry is lawful, then unlawfully remaining upon such property;
3.Such entry or unlawful remaining must be with intent to commit offence, annoy or intimidate the person.
Also, the property has to be in actual possession of another person. ‘Actual’ means to the exclusion of all other people. It need not necessarily be in the possession of the owner, it could be with the tenant as well. Besides, the entry need not be forceful; it is enough if it is without permission. However, the owner needs to be diligent about a peaceful trespasser who is unaware of the title of the true owner since, if the owner does not assert his title within a prescribed period and trespasser is allowed to have peaceful, continuous possession, he acquires an absolute title over the land. The limitation period provided under Article 65 of the Limitation Act, 1963 for suit for possession of immovable property is twelve years.
This was observed by the Supreme Court in Nair Service Society v. K.C. Alexander[2] on the basis of which various propositions with regard to trespasser vis-a-vis a true owner were laid down. Some of the relevant propositions are mentioned below:
Therefore, if the acts of the person in possession of a property are irreconcilable with the rights of the true owner, such acts of the person in possession would constitute adverse possession/settled possession against true owner. As a consequence, it is always advisable for the owner to approach the court for remedy against any kind of trespass if repeated notices to the trespasser go ineffective.
The owner or tenant of the land in possession of the property is entitled to remedies in the form of:
(i) Injunction – to restrain trespasser from causing any further damage
(ii) Damages – compensation for all the losses you have incurred due to the trespass.
Precautions and Procedure:
It is important for a person to be primed in order to handle an instance of trespass in their land/property. First and foremost, one has to keep his/her title deeds viz mother deed, conveyance deed, upto date tax paid receipt, khata from the appropriate authority ready. In case of agricultural land, RTC extract (Record of Rights, Tenancy and cultivation) and MR extract (Mutation Register) from concerned Tahasil office and Akarbandh, Tippani copy, and Phodi sketch from the survey department. All the aforesaid documents show that the person has legal title and is the rightful owner and has been in peaceful possession and enjoyment of the subject property.
Apart from having all these legal documents in place, in order avoid trespass and to be at a safer side one has to place either compound wall or barbed wire fencing around their property and exhibit his ownership with board stating ‘This property belongs to XYZ, trespassers will be prosecuted. (with phone No.)’ This helps one to declare that he has the undisputed title to the property with no objections from anybody including the trespasser.
In spite of all this, if the trespasser enters one’s land repeatedly even upon asking them to leave, or damages his board or compound, then one must go ahead and lodge a police complaint under Section 441 of the Indian Penal Code. You could also plead for interim relief from the court restraining the trespasser from causing any further damage. Interim or temporary relief can be granted at any period of a suit. It is granted if it is proved by affidavit or otherwise, that the subject property is in danger of being wasted, alienated or if defendant threatens to dispose of the property with the intent to defraud creditors.
Further, one can also file a suit for declaration of title, as once it is declared that you have the title to the property, the trespasser cannot transfer the property illegally. It is also impertinent for you to know the particulars of the trespasser and make note of the instances of trespass. Details like the date, time, the number of times the person trespassed along with a photograph or video would add to your benefit.
These measures will help you eliminate the trespasser from your property.
[1] Civil Appeal No. 2789 of 2005.
[2] Nair Service Society v. K.C.Alexander, AIR 1968 SC 1165.
‘Surrogacy is technology’s way of saying life must go on’
Surrogacy means a contract wherein a woman carries a pregnancy for another couple. Surrogacy dates back to biblical times. There have been women throughout history who have faced infertility issues. But modern surrogacy kicked in, in the 1970s.
There are two kinds of surrogacy; (i) traditional surrogacy, where the surrogate mother and the commissioning father are the genetic parents and (ii) gestational surrogacy, where the commissioning mother and father are the genetic parents. Traditional surrogacy takes place by artificial insemination of father’s sperms in the surrogate mother. Gestational surrogacy was possible much later due to the introduction of in vitro fertilization (IVF), wherein, the ova of donor mother and sperm of donor father is implanted in a surrogate. Lawyer, Noel Keane was the first to assist in an agreement for surrogacy in 1976 and also created an Infertility Center. Subsequently, by 1992, the number rose significantly to over 5000 births.
The first Indian Council of Medical Research Guidelines on surrogacy was released in 2002. However, there was nothing in the guidelines that stipulated the consequences of violating such a contract. Due to the relatively low cost, India started emerging as a leader of surrogacy internationally. The Supreme Court of India held commercial surrogacy legal in 2008 in the Manji Yamada Case[1] where baby Manji was born under an agreement between a Japanese genetic couple and, an Indian surrogate mother. However, there is no uniform law in India to govern surrogacy.
As of now, the agreement between the parties and the guidelines passed by Indian Council of Medical Research on Assisted Reproductive Technique (ART) clinics are the guiding force. This is under the 228th Report of the Law commission of India submitted in 2009 as ‘Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy.’ However, these guidelines have been violated time and again. Most of the surrogate Indian mothers are from the lower class or lower middle class hankering to earn some money and even though the market sprang up due to the easy and cost-effective method of surrogacy in India, a lot of international couples have had to fight a long legal battle to get their child. Language barrier only adds to the problem. Furthermore, cross border surrogacy leads to a lot of problems like nationality, citizenship, rights of child with several occasions where children have been denied nationality by the countries. These are just some of the socio-legal problems faced due to uncertainty of surrogacy laws.
In one such case in India, Gujarat High Court[2] conferred Indian citizenship on twin babies born by compensated surrogacy of a German national in Anand District. The court observed that ‘we are primarily looking at the rights of the innocent new born twins more than the right of the biological parents or the surrogate mother.’ The court looked at the laws of the U.S and Japan in passing such a decision.
Since, NRIs began thronging to India for surrogacy and as it was believed that a lot of poor women in need of money were being exploited as these women acceded to surrogacy only because of their vulnerability.The Government of India, therefore, felt a need to prepare a legal mandate and it placed the Assisted Reproductive Technology (Regulation) Bill, 2013 before the Parliamentin order to tackle with this social problem, which is yet to be passed. It addresses the number of pregnancies that can be allowed to a surrogate mother, her age, compensation to be paid, framework for punishment to violators and framework for letting foreigners hire Indian surrogate mothers. There were earlier versions of the draft as well prepared in 2008 and 2010.
The main difference is that the earlier versions relied on contract law to establish relationship between the clinic and the commissioning parents, whereas in the 2013 bill, professional surrogate will be hired by government recognized ART bank and not private fertility clinics which is currently being practiced. The 2013 bill is reportedly stuck because of the difference in the health ministry regarding single parent surrogacy. Infact, the 2013 bill tightened the restriction by restraining foreign same-sex couple from using Indian surrogate mothers. Only men and women who are married for 2 years are given visas.
In a significant breakthrough, the Delhi High Court on Friday, 17th July 2015 granted pre-natal and post-natal maternity leave to a mother having a child through surrogacy in a petition filed by Kendriya Vidyalaya Sangathan employee. Justice Rajiv Shaksher observed that ‘confining maternity leave to a female who herself carries a child would be turning a blind eye to the advancement made by science.’ ‘A commissioning mother needs to bond with the baby and at time take over the role of breast-feeding mother immediately after delivery of child.’ Also even though the commissioning mother does not under go physical changes during pregnancy, she is as emotionally connected if not more than the surrogate mother.’ ‘Therefore, commissioning mother’s entitlement to maternity leave cannot be denied.’
A woman goes through a lot of physical and hormonal changes through the process of pregnancy. It affects the health of a woman both temporarily or permanently. Too many pregnancies would cost in oodles to the woman’s health including loss of life. Studies have found that multiple pregnancies could lead to cardio-vascular problems in women. The sole reason why women ignore these factors and are ready to be surrogate mothers is money and in the absence of any legal framework, these women are subject to exploitation in the hands of scores of people. Surrogacy is about individuals and parenting of a child, so the law must linchpin choosing the right surrogate mother with the help of checks and balances. I think, the Government needs to regulate this keeping in mind the health of the surrogate mother and not restrict surrogacy based on whether it is a foreign single parent or a gay couple.
In the light of the above facts, not only should the Government come out with the framework for surrogacy laws as soon as possible but should also make the route for adoption easier. It is abominable to note that even after 68 years of Independence, the adoption laws in India are so vexed, that people opt for surrogacy instead. There is no comprehensive adoption law applicable to all citizens. Its different depending on the religion and country they live in, like for Non Resident Indian (NRI), Persons of Indian Origin (PIO) and Overseas Citizens of India (OCI). Hindu Adoption and Maintenance Act, 1956 does not allow non-Hindu couple to adopt a Hindu child. Guardian and Wards Act, 1890 permits guardianship and not adoption.
[1] BabyManji Yamada v. Union of India & Anr (2008) 13 SCC 518.
[2] Jan Balaz v Union of India, L.P.A. No. 2151 of 2009.
Land Acquisition in India means a process by which the Central or State Government acquire lands of the individual owners for the purposes of industrialization, development or infrastructure facilities by compensating them in return for the losses incurred by them. Land is specifically defined as ‘land includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth.’
Until 2013, the Land Acquisition Act 1894 governed the land acquisition process in India, which was introduced in the British era. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, replaced the 1894 Act. The Act tries to reduce some social problems by bringing about transparency in the acquisition process, provides fair compensation and rehabilitation to those affected as even though property is not a fundamental right anymore with the Forty Fourth Amendment Act of 1978, it is still is very much a legal right and the owners deserve to be compensated according to the market value of the property during the time of acquisition. The bill was introduced in the Lok Sabha on 7th September 2011, was passed by both the houses in September, 2013, received the President’s assent on 27 September 2013 and came into force on 1st January, 2014.
With the Modi Government coming to power in 2014, it decided to bring in certain amendments in the 2013 Act through an ordinance passed on 31st December 2014. These amendments became an apple of discord due to the nature of changes it made to the Act. They are:
These amendments are deemed to be against the farmer and adjudged to be the cause for a lot of social problems in India.
The reason why Modi Government is pushing for such amendments is because from the beginning Modi has been campaigning thrivingly for the ‘Make In India’ initiative to promote manufacturing in India itself but acquiring lands has become a problem. Industries cannot buy from the farmers directly as the records of the documents cannot be easily verified. Due to these hurdles, firms have been dropping their investment plans. On the flipside, however, the land owners’ have not been rehabilitated under the Act after acquiring their property. The draft of the government’s National Policy for Rehabilitation states that a figure around 75% of the displaced people since 1951 are still awaiting rehabilitation which demonstrates the pathetic situation of the land owners and acts as a pre-cursor of how much more worse this social problem could get in future.
Subsequently, the Government on July 24th to endorse the ordinance, introduced an amendment bill, which was passed by the Lok Sabha, but the same is still lying in the Rajya Sabha. On 30th May, 2015, the President promulgated the amendment ordinance for the third time. Congress has strongly opposed this amendment from the beginning blaming NDA Government of being a ‘suit-boot’ sarkar and being oblivious to the needs and benefits of the farmers of the country. Other parties JD(U), AAP etc also have strongly raised their voices against the bill.
Infact escalating problems for the Government, its own allies have opposed the bill. There has been news that the Government might make changes to the amendment in order to garner support of the opposition parties and if the bill is not passed by the Rajya Sabha, it might call for joint session but with its own allies against it, it seems like a hercules task for the BJP to get their bill passed.
Recently, in pursuance of this bill, a meeting was called in New Delhi on Wednesday in which Chief Ministers of 14 States were missing. In the second meeting nine states ruled by the Congress opposed the bill except Bihar Chief Minister, Nitish Kumar taking everyone by surprise. The Prime Minister was of the opinion that the land acquisition bill needs the consent of central and state governments as the delay is causing hurdles in programmes relating to rural empowerment like establishment of schools, colleges, hospitals, roads, rivers which is provided for by the new Act which not was not present in the previous legislation.
Latest on Land Acquisition Bill:
Finally, the UPA seems to have won the battle on the Land Acquisition Bill after BJP drops almost all the amendments it envisaged to bring through its bill. in effect, restoring the provisions of the 2013 Act which was passed during the UPA tenure. With this, the Congress finally won a point against its arch rival BJP. Congress Vice President, also went and ahead and tweeted – ‘The Modi Govt will soon understand that truth cannot be silenced.The ppl of India&Congress Party have shown this in case of land bill.‘ On the other hand, BJP is treating it as a part of their strategy to resume Parliament proceedings as the bill was one of the major hurdles.
Amendments like introducing ‘private entity’ instead of ‘private company’ , the five exemptions that NDA had sought under Chapter 3A of the Act have been done away with. the politically vexed consent and Social Impact Assessment (SIA) clauses have also ben restored. This was possible due to leading BJP members who joined the parliamentary committee in recommending that the key amendments to the land bill be dropped. So, there have been consensus on a total of 12 clauses out of the 15. The remaning three are retrospectiv effecr of the bill, the clause which mentions that if the land is unutilised fr 5 yeas, it shall be returned to the original owner, and if compensation is deemed to have been paid of compensation is kept in dedicated account.
Well, seems like Government has realised that it doesnt have the required majority in the Rajya Sabha. Also, we must thank the BJP allies that stood against them in bringing about this positive outcome. Hopefully, the Government has realised how lopsided their proposed amendments were and the onerous position in which the farmers were put due to them.
‘Society is guilty if anyone suffers unjustly’: Justice V.R. Krishna Iyer
Legal Aid indicates free legal service to poor people who cannot afford to approach big law firms that advice opulent people or thriving companies. At times, these poor people do not even have the money to approach smaller law firms or individual lawyers and as it is spiteful to leave them in that position, the concept of legal aid was introduced. The idea was first run up the flagpole in Britain back in 1944.
The legal sanction for such a concept comes from Article 39A of the Indian Constitution that promotes justice on the basis of equal opportunities. Article 14 and 22(1) as well promote equality before law. The Indian Government started deliberating on giving free services to the poor in 1952. A committee was set up in 1980 at the national level with Justice P.N.Bhagwati as its chairman. Subsequently, Lok Adalats were instituted as one of the manmoth accomplishments in the history of Legal Aid. In 1987, Legal Services Authorities Act was enacted. Under the act, National Legal Services Authority (NALSA) was also constituted to provide free legal sevices to poor and to establish Lok Adalats for amicable settlement of disputes.
Justice P.N.Bhagwati and Justice Krishna Iyer have contributed immensely to this field. According to Krishna Iyer, ‘it is a catalyst to re-asset state responsibility’ and according to P.N.Bhagwati, its ‘equal justice in action.’ The Committee on legal aid headed by Krishna Iyer listed out the people eligible for legal aid in its report submitted in 1973. Further, the categories of people in Section 12 of Legal Services Authorities Act are as follows: poor in general, victim of human trafficking, mentally ill or disabled persons, victim of mass disaster, an industrial workman, person in custody, person with annual income of less than 9000 or such other prescribed amount if the case is before any court other than Supreme Court and 12,000 or such other prescribed amount if the case is before the Supreme Court. Now, the extent has been increased to Rs.50,000.
Article 21 was associated with Legal Aid in the Hussainara Khatoon Case, the court held that ‘there can be no doubt that speedy trial, and by speedy trial, we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21’. It was also held in Khatri and Ors v State of Bihar and Ors that the state is bound to provide legal service to the accused not just at the stage of trial but also when he is first presented before the Magistrate and from time to time when needed and this cannot be denied on the basis of financial constraints or administrative inability. Infact, the magistrate has to make sure that the accused is aware of such a right.
In Sukhdas v. Union Territory of Arunachal Pradesh, Justice Bhagwati made a very critical observation. He said ‘Now it is common knowledge that about 70% of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the rights conferred upon them by law. Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land….. This miserable condition in which the poor find themselves can be alleviated to some extent by creating legal awareness amongst the poor. That is why it has always been recognized as one of the principal items of the program of the legal aid movement in the country to promote legal literacy. It would be in these circumstances made a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal service, legal aid would become merely a paper promise and it would fail of its purpose.’ Therefore, due to a several judgements like these, there was beating of drum for legal aid as a fundamental right and not just as a service given to the poor.
There have been various amendments made recently to the Legal Services Authorities Act, 1987 with the establishment of Permanent Lok Adalats having a chairman and having jurisdiction over one more public utility services. Lok Adalat has percuniary jurisdiction of 10lakhs. Also, before the dispute is brought before court, an application should be filed before the Lok Adalat. Lok Adalat may formulate the terms of possible settlement and it shall be final and binding. These are some of the important amendments brought about.
Even though, the 1987 Act was enacted in order to diminish the wrench in the works of providing legal services, there are major drawbacks in the existing stratagem of Legal Services. Therefore, the Act has failed to tackle with this particular social problem completely. Some of the major impediments are lack of funding, infrastructure, transparency and accountability, poverty, illiteracy and ignorance. There are several ways in which some of these problems can be attempted to solve. I shall be discussing some of them below:
Increase funds:
It was mentioned by Mr. U.Sarathchandran, Member Secretary of NALSA in the Workshop Report, that the funds allotted to the Authority are not sufficient. Legal Services being one of the most crucial services and also one of the most intrinsic rights of an individual, the government must concentrate on allocating sufficient funds for proper functioning of the Authority.
Increase Transparency and Accountability:
It is important to make sure that NALSA monitor the expenses of State Legal Services Authorities since there have been instances where budget lapses and money remains unused. Mr. Sarathchandran expressed how help from the UNDP to go digital would help keep track of accountability.
Improve Infrastructure:
There have been complaints of insufficient infrastructure. Government should make sure that these legal services authorities are in correspondence with civil societies so that they could make available their resources.
Promote Alternate Dispute Resolution:
One of the major predicaments in Lok Adalats is that, the settlement is made based on the parties coming to a compromise or settlement. If they do not, then it is transferred to the regular courts. Instead, if Lok Adalats decide the cases on merits, then a major chunk of burden could be reduced from the regular courts. If the issue is about public utility services like electricity, water etc., it should be solved without having to litigate since these are important but petty cases and time should not be wasted by entering into litigation for the same.
If the Act is amended to encompass the above solutions, there could be some hope of bringing about a positive change in the dispensation of legal services. All these are some of the assumptions made by people as to reasons why the Act failed in achieving its object but it is necessary for the Government to research on the veritable quandary in the path of legal aid dispensation and jot it down systematically in order to bring about the necessary changes.
Apart from these, it is cardinal to spread awareness to the poor and to people in the rural areas about their right to free legal services. Legal services should not be considered as something that is done as a favour, but it should also be made imperative for all the experienced lawyers to take up some cases of the poor for free. Also, it is essential to make sure that students in law schools are aware about the extent to which a service like this could help develop India, help the poor as well as lower the burden of regular courts after all most of these young minds join law school to help the society in one way or the other.
With all my social networking sites newsfeeds flooding with LGBT articles, how could I not nosedive into this mania? Cardinally, hearty congratulations to all the United States folks! More power to you! While you guys enjoy the latest U.S. Supreme Court decision that was so impertinent. We people in India, are busy debating whether changing colors of our DPs is actually beneficial or not to the current situation in India!
I am going to thrust my opinion too, about the same, but before that for those of you, who do not know, homosexuality has been declared as a ‘criminal offense’ by the Supreme Court of India in its decision dated 11, December, 2013. Section 377 of the Indian Penal Code criminalizes unnatural sex and homosexual activities have been interpreted to be included under it. Lord Macaulay enacted this way back in 1860 during the British colonial regime. The exact wordings of the section are as follows:
“377. Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
The problem with the section is that it does not mention what acts are considered being against the order of nature and therefore, it has been subject to various judicial interpretations. The ignominy surrounding homosexuality has caused various impediments to the homosexuals in India and inturn one of the most debated social problems. Naz Foundation (India) Trust, a Delhi based non-governmental organization realized that this kind of humiliation surrounding homosexuals is also causing hurdle in accessing medical services in cases of men having sex with men causing snag in HIV prevention.
The organization, therefore, filed a Writ Petition in the Delhi High Court, which was dismissed, then a review petition was filed before the Delhi High Court which was dismissed again. Further, a special leave petition was filed before the Supreme Court, which found merits in the claim remitting the matter back to the High Court to decide the case on merits. The Delhi Court in its historic judgement delivered on 2nd July, 2009 decided that Section 377 was unconstitutional.
The main ground for retention of Section 377 by the Home Ministry, Government of India was public morality. The fact that majority of the people in India have not shown tolerance towards homosexuality and it, therefore, should be criminalized even if it is done with consent as a private act because society and law should go together. The arguments against Section 377 is that firstly, LGBT is a highly HIV prone group of people. Also, criminalizing consensual sex due to archaic, religious notions of sex only for procreation is fortifying their ostracism increasing the instances of violence, rape, torture and exploitations against LGBT persons. The law violates LGBTs’ fundamental rights under Article 14, 19 and 21 of the Indian Constitution, as it shows them of less value than others, hinders their freedom of speech and expression and infringes their right to live with dignity. These fundamental rights have been violated only in the name of morality.
After hearing a plethora of cases from both sides, the court was of the opinion that sexual orientation is analogous to sex and discrimination on the basis of sexual orientation is not allowed under Article 15 of the Indian Constitution. The court therefore, applied the severability doctrine and declared Section 377 unconstitutional in so far as it criminalises consensual sex between two adults in private. It will, however, continue to apply to non-consensual sex involving minors.
Nevertheless, all was not well yet. After the decision, 15 special leave petitions were filed in the Supreme Court against the decision. Final arguments were made before a division bench consisting of Justice G.S. Singhvi and Justice S.J. Mukhopadhyay. The arguments against 377 included 172nd Law Commission Report which, had recommended deletion of Section 377 apart from the fact that the criminalisation of homosexuality condemns eternally a considerable section of society and forces them to live their lives in the shadow of harassment, exploitation, and degrading treatment at the hands of the law enforcement machinery.
The arguments raised against the High Court decision are that the respondents had not placed any tangible evidence to show that Section 377 was being used for prosecution of homosexuals as a class, that affidavits and reports of NGOs and academicians cannot be relied upon. That, Section 377 mentions carnal intercourse as sex with unnatural lust between people of same sexes or different sexes and that right to privacy does not include right to commit such offense.
Therefore, the Supreme Court of India was of the opinion that Doctrine of Severability or Reading Down should be done keeping the legislature’s intent in mind and that there should be a presumption of constitutionality towards all laws instead of holding them unconstitutional. As, there are amendments being made to sexual offences, most recent being in 2013, which includes Section 377 and since the Legislature did not consider the recommendation made by the 172nd Law Commission Report to repeal the Section, it is clear that the Parliament, which, represents the people, deems it fit to retain the Section. The Supreme Court however, left it open for the legislature to debate on the desirability to delete Section 377. The Supreme Court dismissed the review petition filed after this decision.
While, there is nothing one can do to change the said decision of the Supreme Court, what we can do is to rekindle the need for safeguarding LGBT community. It is true that the U.S. Supreme Court decision changes nothing in India and we cannot bail the LGBT community out by changing our profile pictures. However, it is also wrong to call it stupid or pointless.
Concurring to the fact that, there have been decisions in favour of gay rights in other countries before the United States did. For example, Netherlands was the first country to legalize gay marriage in 2001, followed by Belgium 2003, Spain and Canada in 2005 and a host of other countries with Luxembourg being the latest on 1st January, 2015 and on 22nd May, 2015, a referendum was approved in Ireland to legalise gay marriage. But, just because these instances were not celebrated does not mean that one cannot celebrate a decision made by the Supreme Court of one of the most powerful democracies. No one is trying to put United States on a higher pedestal, but why not celebrate our Prime Minister’s best friend’s achievement? 😉 Come to think of it, I think it is one of the best ways to slam our society’s hostility towards the community.
I also consent with those arguing that legalizing gay rights is far fetched in a country where marrying a person of your choice is also a problem. However, the point is to revamp the mindset of our society and even though changing DPs is not going to bring about an immediate benefit in the position of India. It is definitely a step towards showing that a majority of the people in India, approve of gay rights and would maybe help change the notion that Indian society is not ready to accept legalization of gay rights. In fact, I think social networking sites are best platforms to show one’s support to LGBT community since it is used by millions of people and is therefore, one of the fastest ways to spread the message. Maybe, the support would help some of our own friends come out of their closet. It is a way of showing that a country that is predominantly heterosexual does not feel there is anything wrong in being homosexuals. This could help some people out there open up and would ultimately help galvanize the whole idea of legalizing gay rights.
It is a small step but an essential one. Therefore, I really think people should stop calling each other ignorant or stupid and posting memes ridiculing people who have changed their display pictures. It is not about depicting oneself as more erudite or realistic. Instead, it is about doing whatever little you can even if it seems laid back and sluggish. The point is to help influence the thinking of our society and to lead the way to introspection.
A marriage in India does not take place on pen and paper. It is solemnized duly in a ceremony by chanting a number of holy mantras. There are plentiful variations in marital practices but generally R.N.Sharma’s definition of marriage is considered as one of the most appropriate definitions of a Hindu marriage. He said it is “a religious sacrament in which a man and a woman are bound in permanent relationship for the physical, social and spiritual purposes of dharma, procreation and sexual pleasure.” It is one of the most sanctified ceremonies that brings, two consenting souls together.
However, there is an upsurge in the number of divorce cases in India. The stumbling block is the incompatibility between the partners due to not having known each other scrupulously or for that matter sometimes, marriages just fail to survive certain adversities that, life brings along. Either ways, human beings are complex creatures and the decision to spend the rest of their lives together is one of the most difficult decisions to make. With both arranged and love marriages ending bitterly, it is important to understand the maintenance laws in India, what with rumors rolling out that Suzanne Khan is asking for Rs 400 crores in alimony!!!
The laws that govern maintenance in India are provided in Section 24 of the Hindu Marriage Act, 1955 under which either the husband or the wife is entitled to be paid for the expenses of any proceedings under the Act. Also, under Section 25, the court may direct the respondent to pay maintenance or to pay such gross sum or monthly or periodical sum for a term not exceeding the life of the applicant. The other relevant provisions are Section 18 and 19 of the Hindu Adoption and Maintenance Act, 1956 and Section 125 of the Code of Criminal Procedure, 1973.
However, it is crucial to note that Section 13 of the Hindu Marriage Act lays down various grounds for divorce but does not include irretrievable breakdown of marriage as one of the grounds. Irretrievable breakdown of marriage means that the man and wife cannot live together any longer. It has to be proved to the court that their relationship is so faulty that there are no chances of getting back together. There are many instances in today’s world where couples are living together but their marriage is commensurate to a separation and there is no codified law to govern a situation like this. Ideally people face one of the three situations, (i) where both the parties believe that the marriage is failing, they can apply for divorce, (ii) when both agree that the marriage is failing, they can file divorce by mutual consent but what if (iii) one party believes that the marriage is failing but the other party refuses to believe it. Not including the third point in our Divorce law has catapulted divorce as one of the most major social problems.
In the light of this, a Law Commission Report was forwarded to the Government of India in 2009, in order to add irretrievable breakdown of marriage as a ground for divorce under Section 13 of the Hindu Marriage Act, 1955. This was mainly brought to rumination by the Supreme Court’s recommendation to the Government to amend Hindu Marriage Act in the case of Naveen Kohli v. Neetu Kohli[2]. It has also been observed in V. Bhagat v. D. Bhagat[3] by the Supreme Court that, irretrievable breakdown of the marriage is not a ground for divorce by itself but, while scrutinizing the evidence on record, if the court deems fit, divorce should be granted. Ensuing several years of discussion, the UPA Government introduced Marriage Laws (Amendment) Bill, 2013 proposing amendments to the Hindu Marriage Act, which was passed by the Rajya Sabha but could not be taken up for discussion by the Lok Sabha. Notwithstanding the fact that the present Government had decided to introduce the bill again, Law Minister Sadananda Gowda issued a statement saying that the Government has contemplated against the Bill since as much as 70 representations have been made against the Bill. Objections have been raised by, senior citizens and various non-governmental organisations like Save Indian Family contesting that the amendment would bring down the marriage rate in India.[4]
Nevertheless, this amendment can be a boon in terms of maintenance as it entitles wives to husband’s share of the immovable property that he acquired in the course of their marriage in cases of irretrievable breakdown of marriage. However, this benefit is only limited to cases of irretrievable breakdown of marriage and not in other cases which, manifests Government’s hiccup in fostering gender equality as there is no rationale behind why it should not be availed in all cases of divorce. The Goan family law allows wives to have a share in both self-acquired and inherited property in all cases of divorce.
Further, the Amendment Bill provides that a woman can oppose the divorce claiming financial hardships while the husband cannot do so. Also, wife can claim property acquired by the husband both before and after the marriage. There can be no line of reasoning to include such provisions. At the same time, there have been squabbles that, the divorce rates have gone down in the last few months because women are waiting for the winter session so that the Bill is passed by the Lok Sabha and it is made into an Act. I am pretty confident that, for majority of the women, getting out of a bad marriage would be a priority rather than to wait and claim right over property. However, even if some women are intending to misuse the law, the court can avoid such a mishap by examining the facts and circumstances of the case and the grounds for her claim over the property. The limitations in the Bill, some of which I discussed above, are highly disquieting and I therefore, do not completely support the 2013 Amendment Bill. However, it is un-varnished that a divorced woman should not just be safeguarded from hardships as is stated in the law but should be given a share in the assets. I am not even being relatively feminist by saying that a man and a woman both fabricate a family. It is true when said that, men make house and women make it home, men bring provisions and women make meal. So, marriage is a combined effort of both man and woman and it is only fair for both to get the shares they deserve.
Giving a share of the property to women would be a huge milestone in the laws of a country that is mainly known for having a patriarchal outlook and would overshadow the belief that women have been subjugated in our society. Be that as it may, the Bill needs to undergo a lot of changes for it to be accepted by all.
[2] AIR 2006 SC 1675.
[3] AIR 1994 SC 710.
Medical termination of pregnancy has been a time-honored practice. Approximately 26 million pregnancies are terminated legally throughout the world, and 20 million are terminated illegally, with more than 78,000 deaths. In India alone 10-12 million abortions take place annually, resulting in 15-20 thousand maternal deaths, mainly due to illegal abortions.[1] So these abortions don’t just take away the innocent infant’s life but also pose a threat to the mothers’ lives insinuating one of the most major social problems.
An abortion is the removal or expulsion of an embryo or fetus before it can live independently. It could be a spontaneous process referred to as miscarriage or artificially induced medicines, surgery etc. usually before 20 weeks of gestation.[2]
The law relating to abortion is provided in the Indian Penal Code under Section 312 which punishes the mother or any person who causes miscarriage except if it is done in good faith in order to protect a more precious life that is, the mother’s life. On the bright side, however, the Government enacted Medical Termination of Pregnancy Act, 1971 which was a pretty modern step for that age. The Act legalized medical termination of pregnancy up to 20 weeks of gestation by medical practitioners. The purpose of the Act was to protect women who wanted to undergo abortion from legal hassles. In the process, it aimed to regularize institutions relating to abortion and reduce the number of illegal abortions.
However, the purposes of the Act did not materialize and the counts of illegal abortions only increased after its enactment in 1971. One may ask how an Act that provides for place of termination, time of termination, qualifications etc., fail to execute its aims. I have discussed some of the reasons below:
One of the major drawbacks of the MTP Act, 1971 was that the women weren’t in control of the decision making process. There are two eventualities under which a women can undergo abortion. They are:
In the first eventuality, termination can be conducted only with a good faith of the medical practitioner that the continuation of the pregnancy is a danger to the woman or that there is substantial risk that that the child would be physically or mentally ill whereas the second eventuality requires the good faith of atleast two practitioners. Therefore, ultimately the decision as to whether she can undergo abortion lay with the doctors. This shifted the entire attention to a woman’s right to choose the conditions of her own child-bearing.
This aspect of the law conveyed to the world that while the Act was enacted to promote public health by reducing unnecessary births leading to over-population, it gave less importance to the rights of the women. So, the law in India differed from similar laws abroad like in US, which had a more feminist approach, associated with giving women equal status in the society.
Another major problem was that while the Act provided for the qualification a doctor or practitioner needed to have in order to carry out the procedure, lack of proper infrastructure, planning and awareness lead to large number of illegal abortions. These qualified doctors are available only in urban areas and extremely few in the rural areas. The National Level Facility Service revealed that out of all the primary health centers, only 15% have MTP trained doctors.[3] Moreover, so many women in rural areas still think that abortion is illegal. Due to all these reasons, women in the rural areas approach midwives or untrained doctors and undergo illegal abortion posing serious risks to their lives.
With some comforting prospect, the Government of India released the draft of the Medical Termination of Pregnancy (Amendment) Bill on 29th October, 2014. The bill increased the gestation limit from 20 weeks to 24 weeks. This was mainly engendered due to the case filed by Niketa and her husband Harsh in the Bombay High Court seeking an order allowing her to abort her foetus that was suffering a congenital hear disease, which was found in her 22nd week of pregnancy. The court refused her plea. However, she later suffered a miscarriage and gave rise to a nationwide debate on abortion laws. Several doctors were of the opinion that heart anomalies or other kinds of defects in the foetus can be identified only during 20-24th week and parents should be allowed to opt for abortion if it is safe.
The 2014 Amendment also gives the women complete autonomy on abortion in the first trimester and provide for only one practitioner’s approval instead of two in the second trimester. It also expands the base to midwives and non-physician practitioners. These changes are a positive move towards recognizing women’s rights, preventing their suppression and, it shifts the law from being pro-practitioners to pro-women. The expansion to midwives and practitioners will hopefully cut down the number of illegal abortions tremendously if they are well trained. The authenticity of its success can only be proved once the rules are out and also on how the Government implements these ideas.
[1] http://medind.nic.in/maa/t05/i2/maat05i2p151.pdf
[2] http://www.legalserviceindia.com/articles/adp_tion.htm
[3] http://www.thehindu.com/sci-tech/health/policy-and-issues/a-strong-case-for-amending-mtp-act/article5142398.ece
Freedom of speech and expression is guaranteed under Article 19(1)(a) of the Indian Constitution. It means the right to express oneself freely by words of mouth, writing, printing, pictures or any other mode. So, it includes representation of ideas through communication or visual representation like gesture, signs etc.[1] This fundamental right is however, restricted under Article 19(2) of the Indian Constitution. It reads as follows: “Nothing in sub-clause (a) of clause 1 shall affect the operation of any existing law insofar as it relates to or prevents the state from making any law relating to libel, slander, defamation, contempt of court or any matter which offend against decency or morality or which undermines the security of the state or tends to overthrow the state.”[2]
Further, in mid 1990s, there was an impulsion in the globalization and computerization with almost all nations computerizing their governance and with the magnificent growth of e-commerce. Due to this growth of international trade and internet communications, there was a need felt to recognize electronic documents that is stored in a computer or in an external storage.[3] The General Assembly of the United Nations resolved in December 1966 to create the United Nations Commission on International Trade Law (UNCITRAL), with a mandate to promote progressive harmonization and unification of the law of international trade.[4] Keeping this in mind, the United Nations Commission on International Trade Law (UNCITRAL) adopted the Model Law on e-commerce in 1996.[5] Therefore, in 2000, India enacted its first Information Technology Law namely Information Technology Act, 2000 in order to give legal security to the electronic transactions. It was based on the Model Law adopted by the United Nations Commission.
This Information Technology Act, 2000 divulges three important objectives: First, to provide legal recognition for electronic communications. Second, to assist in electronic filing of documents with government agencies. Third, to amend certain Acts like the Indian Penal Code, 1860, Indian Evidence Act, 1872 etc. The Central Government also has the power to appoint the adjudicating authority to decide if an act that is in contravention with the provisions of the Act has been committed and has all the powers of a Civil Court.[6]
However, with the passage of time, people found new ways of committing crime on Internet and it became difficult to deal with all these activities due to which it was felt that the Act needs certain Amendments. It was vividly visible that the 2008 Act was introduced to tackle cyber crimes creating social problems like internet fraud, pornography, data theft, phishing etc. that were not expressly covered under the old legislation. They are covered mainly under Section 66 and 67 of the IT Act, 2000.[7] However, the problems with some of the provisions are as follows:
Section 66A has phrases like ‘menacing character’ which is primarily to deal with instances of threat mails or cyber talking. However, the word has not been defined and could be interpreted so broadly so as to include any kind of harsh tone under it. For instance, when an employer mails his employee saying he will beat him up if he does not get the tickets, which is clearly a joke but could fall under the phrase ‘menacing character.’ Similarly, the section uses words like ‘annoyance’, ‘obstruction’ or ‘ill will’ in clauses (b) and (c) which are again not defined even in the 2008 Amendment Act leading to uncertainty.[8] The Section was however, repealed in March this year as it criminalised anything publishing information that is”false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”.
Section 66E provides for voyeurism but it mentions wrongful conduct but not ‘observation.’ Similar legislation like the Sexual Offences Act, 2003 in the United Kingdom and the Canda Criminal Code criminalise even observation of such acts. Looking at the objective of Information Technology Act, 66E should declare viewing of such images or videos through online streaming or computer resource also illegal.[9]
Section 66F was included with the Amendment in 2008 and has been one of the most controversial sections. In the first clause, it includes acts that cause damage to property and cause deaths but do not include private property. As far as the general definition of terrorism is concerned, it does not restrict the destruction to government property, it includes private property as well. In the second clause, it deals with access to data or information and computer databases but it does not specifically mention acts that involve Internet banking, use of internet channels to make terrorist plans, hacking governmental or non-governmental websites etc. It is undesirable is to have an overlap of definitions in the IT act, IPC and the Unlawful Activities Prevention Act. Therefore, the Section must include act that involve unlawful conduct with the help of Internet.[10]
Model of Governance:
At the Internet Governance 2012, held in Baku, Azerbaijan, India expressed its willingness to working with ICANN and was represented by the Minister of State for Telecom. This was a turnabout from its earlier stand of having a UN body for Internet regulation. Then at the Internet Governance Forum 2013, held in Bali, Indonesia, India did not send any ministerial representation but sent some beauracrats who did not make any remarkable contribution.[11]
However, at this point, it is very important to examine India’s role during Netmundia held in April 2014. It was organized by the Brazilian Government in order to design a open and participatory method of regulation of Internet. India did not sign the meeting’s outcome statement, which was participated by the various stakeholders of the Internet like government, civil society, academia, business and technical community. This was in the wake of the fact that the United States of America had used National Security Agency (NSA) to spy on its own citizens.[12]
In the meeting, India was of the opinion that Internet is a shared resource and recommended that it should have a ‘globally acceptable legal regime,’ with intergovernmental organization or multilateral approach. It was also of the opinion that there should be a new cyber jurisprudence to combat cyber crimes that goes beyond the limits of political boundaries.[13] However, the final statement of the meeting did not have these suggestions incorporated in it, instead it focused on protecting human rights, cultural and linguistic diversity and it backed multi stake holder approach, thereby ignoring India’s suggestions. With regard to cyber jurisdiction, it ruled that it can only be effective through the co-operation of all stakeholders and not through a single organization.[14]
It is not clear why India did not sign the final statement even though it proposed for an open Internet. In fact, it did not even send any Minister for the ICANN meeting in June 2014 in London and the diplomats sent did not really participate much in the six-day event. India must utilize the present method of international Internet governance that is multi stake holder approach by making outstanding policy interventions which is only possible if they come up with national objective concerning global governance.[15] Recently, in October 2014, Mr. Samiran Gupta was appointed as the Head of India who will be the primary representative of India for ICANN meetings. It is being hoped that he will work towards solving this conflict with the Indian Government.
Internet Governance through out the world has been indeterminate. With the materialization of the Internet and occurence of various social problems, States came up with several ways to regulate the Internet. The various models split the world into two and soon there were extensive debates held in order to co-ordinate the efforts of all the countries in order to regulate the Internet. The problem of regulation ensued because, unlike the real world, cyberspace does not have any boundaries and there is free flow of information across all the countries in the world, thereby, bringing up jurisdictional problems. These jurisdictional problems bring about the challenges of diverse social, cultural, political and economic beliefs.
However, the analysis of the various models of governance that are active currently in all the countries, it seems that the States are going to play a major role in Internet Governance. This is even though, there is an acute necessity of having an international body that could regulate the Internet by heeding to the needs of all the individual national governments. Along with the efforts by the national governments to keep the Internet safe, there is also a requirement to make sure that private players and governments of the developing countries also have their say in the regulation of the Internet as it is important to guarantee that every users’ voice be heard before making any sort of decision with regard to governance of cyberspace.
I am of the firm opinion that multi stakeholder approach needs to be adopted in the regulation of Internet. There needs to be an International Framework in this regard to preserve freedom of speech along with an establishment of an international body for the same. Internet Governance will remain a work that is in progress and a final solution for it seems unlikely in the near future. It is not an easy road ahead. It will be difficult to assimilate norms and policies that are acceptable by all. Attempts such as G-*8 Digital Opportunity Task Force and the UN Information and Communications Technologies Taskforce already shed some light on the path ahead. Both were set up by Governments but had the participation of business, individuals and non-profit organizations as well.[16] However, if efforts are taken now, the international community could soon come up with uniform specifications to bring about a balance between Internet Governance and Freedom of Speech and Expression on the Internet.
[1] Dheerendra Patanjali, Freedom of Speech and Expression, India v America – A study, 3(4) India Law Journal (2007).
[2] The Constitution of India, 1950, art. 19(2).
[3] Indian Institute of Banking and Finance, Cyber Laws in India, M/s Taxmann Publishers, (Jul. 2012), http://www.iibf.org.in/documents/Cyber-Laws-chapter-in-Legal-Aspects-Book.pdf.
[4] United Nations Commission on International Trade Law, Dec. 17, 1966, Resolution 2205 (XXI).
[5] Indian Institute of Banking and Finance, Cyber Laws in India, M/s Taxmann Publishers, (Jul. 2012), http://www.iibf.org.in/documents/Cyber-Laws-chapter-in-Legal-Aspects-Book.pdf.
[6] Karnika Seth, IT Act 2000 vs 2008- Implementation, Challenges, and the Role of Adjudicating Officers, National Seminar on Enforcement of Cyber Law, New Delhi (May 8 2010), http://catindia.gov.in/writereaddata/ev_RVNRBv111912012.pdf.
[7] Amlan Mohanty, New Crimes Under the Information Technology (Amendment Act), 7 The Indian Journal of Law and Technology 104 (2011).
[8] Id. at 109.
[9] Id. at 113.
[10] Id. at 115.
[11] Id.
[12] Borger Julian, Brazilian President: US Surveillance, A Breach of International Law, The Guardian, (Sept. 24 2014), http://www.theguardian.com/world/2013/sep/24/brazil-presidentun-speech-nsa-surveillance.
[13] Government of India’s Initial Submission to Global Multistakeholder Meeting on the Future of Internet Governance, (Apr. 23-24, 2014), http://mea.gov.in/Images/ pdf/official_submission_to_the_conference.pdf.
[14] Mahima Kaul, Global Internet Governance: India’s Search for a New Paradigm, 74 Observer Reseach Foundation, (August 2014).
[15] Id.
[16] Zoë Baird, Governing the Internet: Engaging Government, Business, and Nonprofits, Foreign Affairs, 81(6) Council on Foreign Relations 15-20 (Nov. – Dec., 2002).
legalparley 