Draft Press and Periodicals Rules 2024

 Seeking public comments, India’s I&B Ministry issued draft rules for implementing the Press and Periodicals Registration Act 2023 passed recently. The rules outline the powers and processes for the Press Registrar.

Inspection Triggers for Media Houses

As per the draft, physical inspection of a publisher’s business premises can be taken up if annual statements are not submitted regularly or a desk audit flags issues requiring further verification.

Press Registrar’s Discretionary Powers

The Registrar can also initiate inspection after receiving complaints about a publication or if deemed necessary for other exceptional reasons. Justification for the same has to be recorded in writing.

Verification of Circulation Claims

Another provision enables verifying circulation numbers if a newspaper seeks central government ads or is subjected to complaints. Initial checking has to be via desk audit of submitted information.

Concerns Around Sweeping Powers

Some experts have criticized the discretionary physical inspection clauses as giving sweeping powers to the authorities with possibilities of misuse to harass media outlets.

About Press and Registration of Periodicals Act

The Press and Registration of Periodicals Act enacted by the Indian Parliament in 2023 aims to replace the archaic 1867 Press and Registration of Books legislation instituted during colonial rule. It was formally implemented from December 29 after getting legislative approval and presidential assent.

The 156-year-old Press Act was criticized as an obsolete legislation lacking required oversight mechanisms for digital age media platforms. By repealing and introducing updated provisions governing registration of publishers and norms compliance, the 2023 Act seeks to catalyze responsible journalism and curb misinformation proliferation enabled via modern technologies.

Who is a ‘puisne’ judge, and what does the term mean?

 

According to the dictionary, the word puisne has French origins, which means “later born” or younger.

While recommending two names for appointment as judges of the Supreme Court, the Collegium headed by Chief Justice of India D Y Chandrachud said in a statement on Tuesday (January 31) that the collegium had taken into “consideration the seniority of Chief Justices and senior puisne Judges…”

What does puisne mean, and who are puisne judges?

According to the dictionary, the word puisne has French origins, which means “later born” or younger. It is pronounced /’pjuːni/, like “puny”, the English word that means small or undersized.

Puisne is almost always used in the context of judges, and essentially denotes seniority of rank. The term puisne judge is used in common law countries to refer to judges who are ranked lower in seniority, i.e., any judge other than the Chief Justice of that court.

Common law is the body of law that is created by judges through their written opinions, rather than through statutes or constitutions (statutory law). Common law, which is used interchangeably with ‘case law’, is based on judicial precedent. The United Kingdom (UK) and the Commonwealth countries, including India, are common law countries.

Is a “puisne judge” in India the same as in the UK?

In the UK, puisne judges are judges other than those holding distinct titles. The Supreme Court of Judicature Act, 1877 defined a “puisne judge” as any judge of the High Court besides the Lord Chancellor, the Lord Chief Justice of England, and the Master of the Rolls.

In India, all judges have the same judicial powers. As the seniormost judge of a court, the Chief Justice has an additional administrative role. In India, there is a reference to a puisne judge only while considering the order of seniority for appointments, elevations to High Courts, etc., but it does not have a bearing on the exercise of a judge’s judicial power.

What did the collegium say about puisne judges?

On Tuesday, the Supreme Court collegium recommended Justice Rajesh Bindal and Justice Aravind Kumar, the current Chief Justices of the Allahabad and Gujarat High Courts respectively, for appointment as judges of the Supreme Court.

While giving reasons for its recommendation, the collegium said that the decision was made taking “into consideration the seniority of Chief Justices and senior puisne Judges in their respective parent High Courts as well as the overall seniority of the High Court Judges”. This was done because seniority is one of the several criteria that are considered while making appointments to the higher judiciary. 

In the Third Judges Case ruling in 1998, one of the two cases that led to the evolution of the collegium system, the Supreme Court clarified that “The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four seniormost puisne Judges of the Supreme Court.”

Source: Indian Express, 2/02/23

The judiciary should have annual performance reports, too

 In a rare exhibition of transparency, at least by the standards of the Indian judiciary, the Orissa High Court has published an annual report taking stock of its performance in a difficult year that was punctuated by the resurgence of the pandemic. By subjecting itself to the scrutiny of the common citizen, the court has shown exceptional humility.

The report provides a district-wise breakup of cases and availability of judges. It contains a section explaining the reasons for delays and backlog at the level of the district judiciary. The tendency of higher courts to “stay” proceedings, the uneven distribution of cases amongst judges in trial courts and the non-availability of witnesses due to transfers are among the major reasons cited by it for delays. This is a notable public introspection exercise by the judiciary which, at most times, is content with blaming delays on insufficient funds and shortage of judges.

The report also sheds light on the administrative functioning of the court. Such disclosures are welcome because much of the judicial administration at the level of the state judiciary, lies in the hands of high court judges who execute these functions through small committees of judges. In addition to listing the judges on each administrative committee, the report acknowledges the work done by them. For instance, the committee that deals with the appeals by the employees of the district judiciary against orders passed by disciplinary authorities had 40 appeals, out of which it disposed of only 13 appeals. This is useful information if one wishes to assess the administrative workload of judges and the efficiency with which they discharge their tasks. Most HCs do not share this information with ordinary citizens even if requests are made for the same under the Right to Information Act. The Bombay High Court, for instance, recently ruled that its “file notings” on administrative matters are not required to be disclosed under the RTI Act.

Annual reports have traditionally been an important way of ensuring accountability of public bodies to Parliament and citizens. Each Union ministry is required to supply copies of these reports to the Lok Sabha Secretariat a week before the Demand for Grants of the ministries is taken up. The Ministry of Parliamentary Affairs has detailed instructions on the expectations regarding the timeline and content of such reports. These reports are examined by the Department Related Parliamentary Standing Committees and the Parliamentary Committee on “Papers Laid on the Table”, which regularly takes to task ministries for delays in tabling reports of the government companies and autonomous bodies under their control.

Unlike the executive, the judiciary is not under any legal obligation to prepare annual reports or table them before Parliament or the state legislature. A survey of the websites of the 25 high courts in the country revealed that only the high courts of Madras, Himachal Pradesh and Tripura had published an annual report in the last two years. The high courts at Punjab and Haryana and Gujarat had annual reports available till the year 2018 and 2019 respectively. Websites of the Delhi and Jharkhand high courts host a very dated report while other websites have nothing available on them. At most, all high courts submit short reports to the Supreme Court which compiles all the information into one annual report on the judiciary. But unlike the Orissa High Court’s report, the SC’s annual report is largely a self-congratulatory exercise, which does little to introspect on the challenges facing the institution.

It would, of course, be naive to expect that the courts will have a sudden change of heart in favour of even elementary transparency measures such as publication of an annual report. It’s up to Parliament to enact a law that mandates high courts to publish an annual report not just on their performance but also on the performance of the district judiciary under their administrative control. This law should clearly outline the expected content of the report (the Supreme Court’s annual report spends 35 pages on portraits of the hon’ble judges) and establish a clear timeline for its publication.

Written by Chitrakshi Jain , Prashant Reddy T

Source: Indian Express, 7/06/22

What is FCRA, the law related to NGO funding which certain MHA officials are accused of violating?

 The CBI on Tuesday (May 10) carried out searches at 40 places and questioned six officials of the Foreigners Division of the Ministry of Home Affairs (MHA) for allegedly accepting bribes to give clearances under the Foreign Contribution (Regulation) Act (FCRA), 2010 to certain NGOs.

A CBI spokesperson said the operation was conducted “to nab representatives of NGOs, middlemen and public servants of Foreign Contribution Regulation Act (FCRA) division of MHA for committing violations of FCRA provisions and facilitating illegal clearances in lieu of bribes”.

Sources in the investigating agency claimed some of the accused, including public servants, have been apprehended while exchanging bribes. “Around half a dozen public servants and others are being questioned. During searches so far, transactions of around Rs 2 crore through hawala channels have been found,” a CBI officer said.

FCRA clearances have been a fraught issue for several years, and the government has often been accused of targetting NGOs for political or ideological reasons by cancelling or not renewing their clearances.

Earlier this year, in a petititon filed by the NGO Global Peace Initiative, the Supreme Court had asked thousands of NGOs to go back to the government for redressal of their grievances on non-renewal of their FCRA registrations. The registrations of about 5,900 NGOs had ceased to be active after December 31, 2021, owing to either the NGOs not applying for renewal before the due date, or the MHA refusing their renewal for alleged violation of the FCRA.

On December 25 last year, the MHA refused to renew the FCRA registration of Mother Teresa’s Missionaries of Charity, based on “adverse inputs”. The registration was, however, restored on January 6, and Missionaries of Charity’s FCRA certificate was made valid until the end of 2026.

What is the FCRA?

The FCRA was enacted during the Emergency in 1976 amid apprehensions that foreign powers were interfering in India’s affairs by pumping money into the country through independent organisations. These concerns were, in fact, even older — they had been expressed in Parliament as early as in 1969.

The law sought to regulate foreign donations to individuals and associations so that they functioned “in a manner consistent with the values of a sovereign democratic republic”.

An amended FCRA was enacted under the UPA government in 2010 to “consolidate the law” on utilisation of foreign funds, and “to prohibit” their use for “any activities detrimental to national interest”.

The law was amended again by the current government in 2020, giving the government tighter control and scrutiny over the receipt and utilisation of foreign funds by NGOs.

Broadly, the FCRA requires every person or NGO seeking to receive foreign donations to be (i) registered under the Act, (ii) to open a bank account for the receipt of the foreign funds in State Bank of India, Delhi, and (iii) to utilise those funds only for the purpose for which they have been received and as stipulated in the Act.

They are also required to file annual returns, and they must not transfer the funds to another NGO.

The Act prohibits the receipt of foreign funds by candidates for elections, journalists or newspaper and media broadcast companies, judges and government servants, members of legislature and political parties or their office-bearers, and organisations of a political nature.

How is FCRA registration granted?

NGOs that want to receive foreign funds must apply online in a prescribed format with the required documentation. FCRA registrations are granted to individuals or associations that have definite cultural, economic, educational, religious, and social programmes.

Following the application by the NGO, the MHA makes inquiries through the Intelligence Bureau into the antecedents of the applicant, and accordingly processes the application.

Under the FCRA, the applicant should not be fictitious or benami; and should not have been prosecuted or convicted for indulging in activities aimed at conversion through inducement or force, either directly or indirectly, from one religious faith to another.

The applicant should also not have been prosecuted for or convicted of creating communal tension or disharmony; should not have been found guilty of diversion or misutilisation of funds; and should not be engaged or likely to be engaged in the propagation of sedition.

The MHA is required to approve or reject the application within 90 days. In case of failure to process the application in the given time, the MHA is expected to inform the NGO of the reasons for the same.

For how long is approval granted?

Once granted, FCRA registration is valid for five years. NGOs are expected to apply for renewal within six months of the date of expiry of registration. In case of failure to apply for renewal, the registration is deemed to have expired, and the NGO is no longer entitled to receive foreign funds or utilise its existing funds without permission from the ministry.

The FCRA registration of close to 5,900 NGOs, including Oxfam India Trust and Indian Medical Association, lapsed on December 31 last year. According to sources, the registration of as many as 5,789 NGOs had lapsed after they failed to apply for renewal before the due date. The rest, who had applied for renewal, were refused as the MHA found their operations or accounts to be in violation of the FCRA, sources had said at the time.

According to the MHA, NGOs failing to apply before the due date can petition the ministry with cogent reasons within four months of the expiry of registration, following which their applications can be reconsidered.

Many NGOs do not apply for renewal for a variety of reasons, which include either completion of the project for which the FCRA registration had been taken or the NGO itself folding up.

On what basis is approval cancelled?

The government reserves the right to cancel the FCRA registration of any NGO if it finds it to be in violation of the Act.

Registration can be cancelled if an inquiry finds a false statement in the application; if the NGO is found to have violated any of the terms and conditions of the certificate or renewal; if it has not been engaged in any reasonable activity in its chosen field for the benefit of society for two consecutive years; or if it has become defunct.

It can also be cancelled if “in the opinion of the Central Government, it is necessary in the public interest to cancel the certificate”, the FCRA says.

Registrations are also cancelled when an audit finds irregularities in the finances of an NGO in terms of misutilisation of foreign funds.

According to FCRA, no order of cancellation of certificate can be made unless the person or NGO concerned has been given a reasonable opportunity of being heard. Once the registration of an NGO is cancelled, it is not eligible for re-registration for three years.

The ministry also has powers to suspend an NGO’s registration for 180 days pending inquiry, and can freeze its funds.
All orders of the government can be challenged in the High Court.

Which NGOs have been accused of violating FCRA provisions?

Several international and well-known NGOs such as Compassion International, Greenpeace India, Sabrang Trust, Lawyers’ Collective, Amnesty International, and Ford Foundation have come under the government’s scanner for alleged violations of FCRA.

Most have been accused of financial irregularities or “political activity” for cancellation of their registration. Amnesty was forced to shut its operation in India in 2020 following investigations launched by the Enforcement Directorate in 2018 into its financial dealings. Amnesty called the government action “witch-hunt of human-right activists…and a crackdown on dissent”.

Greenpeace India has scaled down its operations after its FCRA registration was cancelled in 2015 on grounds of opening multiple bank accounts, and movement of funds.

Lawyer Indira Jaising’s NGO Lawyers’ Collective is facing a CBI probe. In 2016, the MHA had cancelled the FCRA licence of the NGO for allegedly using foreign contributions for “political purposes”.

Activist Teesta Setalvad’s NGO Sabrang Trust had its FCRA registration cancelled in 2016 for allegedly mixing foreign and domestic funds, and for spending funds on publishing the Communalism Combat magazine.

In April 2015, the MHA put the Ford Foundation under the “prior approval category”, which meant that all funds from the organisation to recipients in India would have to be cleared by the government. The international NGO was also put on the Home Ministry’s watch list for some time in the interest of “national security”.

In 2016, Compassion International was barred by the government from funding NGOs in India over allegations of conversion.

Has the FCRA been used to target certain NGOs?

Until 2011, there were more than 40,000 NGOs registered under FCRA in India. That number now stands at 16,000.

Over the past few years, the government has faced allegations of targeting NGOs. Over the past seven years, the Narendra Modi government has cancelled the registration of more than 16,700 NGOs. Over 10,000 of these cancellations were carried out in 2015.

The previous UPA government had cracked down on NGOs following protests against the Kudankulam nuclear power project in Tamil Nadu. In 2012, the Manmohan Singh government cancelled the registration of almost 4,000 NGOs — up from just four the previous year.

It was under the UPA government that Greenpeace India first came under the scanner. Also, Amnesty International, which was first granted FCRA registration in 2000, was not allowed renewal of its registration by the UPA government.

Written by Deeptiman Tiwary

Source: Indian Express, 11/05/22

‘Section 124A of the Indian Penal Code’ in the News

 

Highlights

• As per a written reply to a question in Lok Sabha, Union Law Minister Kiren Rijiju stated that, on May 31, 2021 Supreme Court in its order on a writ petition had observed that “ambit & parameters of provisions of Sections 124A, 505 and 153A of the Indian Penal Code (IPC), 1860 requires interpretation, especially with respect to right of electronic & print media to communicate news”.
• As per minister, SC has also issued notice to Centre on a plea in which petitioners have asked for an appropriate writ, order or direction to declare Section 124A of IPC, 1860 unconstitutional and void.

What is Sedition law?

Section 124A of the Indian Penal Code (IPC) deals with the Sedition Law. This section defines sedition as an offence committed when “any person attempts to excite disaffection towards government established by law, by means of spoken or written words, or by signs, or by visible representation. Such disaffection includes disloyalty and feelings of enmity.  Sedition is a non-bailable offence. Its punishment ranges from imprisonment up to three years to a life term. Fines may also be added. A person charged with sedition law is barred from government job and they have to live without their passport.

History of the Sedition Laws

Sedition laws were enacted in 17th century. During that time, lawmakers believed that only good opinions towards government should survive, because bad opinions were detrimental to government and monarchy. Laws were first drafted by Thomas Macaulay in 1837. Original laws were inexplicably omitted when IPC was enacted in 1860.

Ambition without idealism is dangerous

 

CJI N V Ramana: Law students, young lawyers cannot remain aloof from social reality.

The father of our nation, Mahatma Gandhi, once remarked, “Youth are agents for transformation”. The history of modern India would be incomplete without acknowledging the role played by students and youth of this country.

Many social revolutions and changes were brought about through politically conscious and socially responsible students, who raised their voices against existing inequities. Students have been the face of the Indian independence movement. In fact, the youth have often taken up certain causes and inspired many political parties to take up the same subsequently.

Education has a social agenda. The agenda is to develop our human resources, which meet the requirements of society. An educated citizenry is the greatest asset for any democratic society. Students are known for their readiness to fight for all the right causes because their thoughts are pure and honest. They are always at the forefront, questioning injustice. Any keen observer of Indian society would notice that in the past few decades, no big leader has emerged from the student community. This appears to be correlated with diminished participation of students in social causes after liberalisation. The importance of students’ participation in a modern democracy cannot be played down.

It is necessary for you (students) to take part in current debates. You must have a clear vision. It is essential that more and more well-meaning, forward-looking, and upright students like you enter public life. You must emerge as leaders. After all, political consciousness and well-informed debates can steer the nation into a glorious future as envisioned by our Constitution. A responsive youth is vital for strengthening democracy.

It is, therefore, necessary for students to realise the importance of their relationship with society. Students are an integral part of society. They cannot live in isolation. Students are guardians of freedom, justice, equality, ethics, and social equilibrium. All this can be achieved only when their energies are properly streamlined. When the youth become socially and politically conscious, the basic issues of education, food, clothing, healthcare, shelter, etc. would come into focus in the national discourse. The educated youth cannot remain aloof from social reality. You have a special responsibility.

Consider this: Nearly one-fourth of our population still lacks access to basic education. Only about 27 per cent of those in the age group of university students are enrolling for university education. While most of you leave these institutes with degrees and titles, always be aware of the world that you are a part of. You cannot remain self-centred. Do not allow narrow and partisan issues to dominate the nation’s thought process. This will ultimately hurt our democracy and the progress of our nation.

The youth of today is driven by idealism and ambition. Idealism without ambition may not achieve any positive results. Ambition without idealism can be dangerous. Combine the two in the right proportion and enable our country to emerge as one of the most powerful and harmonious.

The learnings of my generation were different. In addition to formal learning in school and college, tough circumstances taught us many valuable lessons. When we left college in search of a livelihood, the change was not abrupt. There was freedom for us to experiment, work, play and learn from society.

Unfortunately, the focus nowadays is on professional courses to the total neglect of equally important subjects such as humanities and natural sciences. In an anxiety to secure highly remunerative and profitable job opportunities, children are sent to exile in privately-run residential schools and coaching centres. The formative years of budding talents are spent in a suffocating atmosphere that unfortunately resembles prisons. The harsh reality is that even after the students enter professional universities, the focus is on classroom learning, and not on the world beyond the classroom.

My general observations on the power and responsibility of students and the youth are even more relevant when it comes to all of you who are graduating today. You are all law graduates of one of the premier law universities in the country. All of you have a special responsibility to society.

Lawyers cannot be strangers to socio-economic and political realities. With countless tools at your disposal, all the knowledge and information in the world a click away, you are in a privileged position. While it is not wrong to choose a life of convenience, I hope that you choose a life of service as well, for the future of this nation.

Be aware of prevailing inequities and ask yourselves: Can I be a part of the solution? Particularly, in a country like India, you need to be social architects. The legal profession is not about profit maximisation. It is a service to your client. Remember your duty to the court and to the law. Carry out your sacred task with utmost sincerity and honour.

When you enter the profession you will take an oath on the Constitution. Always remember your solemn duty to uphold the Constitution. You all are aware, independence of the judiciary is sacrosanct in ensuring the rule of law. As officers of the court, you must always guard the institution during testing times. You must always remain vigilant about possible attacks. This is our collective responsibility towards the Constitution.

It is for you to shape the future of this country. The opinions you write, policies you draft, pleadings and submissions that you file in Court and the ethics that you hold dear, will have a far-reaching effect.

As the former US President John F Kennedy famously said: “Ask not what your country can do for you — ask what you can do for your country.”

Written by N V Ramana

Source: Indian Express, 10/12/21

Births and rights: On laws on reproductive rights

 

Laws on reproductive rights must recognise differences in orientation, relationship choices

A Bill that the government of the land intends to make law, cannot be exclusivist at the very outset; and at least, with the time of passage, it is imperative that it loses its biases. It cannot exclude certain categories of citizens from the benefits and rights that the law seeks to confer upon the people of the country. And, that is what the Assisted Reproductive Technology (Regulation) Bill, 2020, that was passed in the Lok Sabha on Wednesday, has done, by excluding two categories — LGBTQIA+ and single men. Undoubtedly, the time has indeed come for such a Bill; for government intervention to regulate the field of fertility treatments, and by seeking to establish a national registry and registration authority for all clinics and medical professionals in the segment, it will fill a vacuum. The Bill has provisions to protect the rights of the donors, the commissioning couple and the children born out of ART, to grant and withdraw licences for clinics and banks depending on performance factors. It proposes to make it impossible for outlaws to operate within the system and profit from it, while exploiting patients. It also plans to put an end to illegal trafficking in embryos, and mistreatment of the poor coerced by their circumstances into donating eggs or sperm.

It is unfathomable that a Bill, so progressive by its very nature, would glaringly exclude members of the LGBTQIA+ community and single men. As citizens, these groups too have the right to exercise reproductive rights. The omission is particularly baffling considering that the legislation has made provisions for single women too, apart from a commissioning heterosexual couple. The Union Health Minister said that several recommendations made by the Parliamentary Standing Committee had been considered. Unfortunately, despite expert recommendations to include both categories, the Committee recommended ‘it would not be appropriate to allow live-in couples and same sex couples to avail the facility of ART’ citing the best interest of the child born through ART. It also recorded that ‘given [the] Indian family structure and social milieu and norms, it will not be very easy to accept a child whose parents are together but not legally married’. While the law would do well to be cognisant of the sentiments of the people, its purpose is also to nudge retrograde social norms out of their freeze-frames towards broader acceptance of differences and preferences. Legislators have also pointed out that the Surrogacy Bill intrinsically connected with the ART Bill was pending in the Rajya Sabha, and that it would only be appropriate that both Bills be considered together before they are passed. The ball is now squarely in the court of the Upper House; legislators can still set right the omissions and introduce the spirit of justice in the letter of the law.

Source: The Hindu, 3/12/21

Justice now depends on technology,’ said SA Bobde. Indian judiciary has miles to go

 

Legal acumen doesn't translate to tech competence. We need adequate training to transit from paper briefs to screens.

Former Chief Justice of India S.A. Bobde said in his farewell address, “Access to justice now depends on access to technology.” Technological transformations in the Indian judicial ecosystem, which were brought about in the wake of the Covid-19 pandemic, have received both praise and criticism from the public. The courts’ inability to function physically pushed them to explore these technological capabilities in order to dispense justice. The Supreme Court acted promptly, issuing a set of guidelines for video conferencing to reduce physical interaction through a suo motu writ petition.

Other major technology-driven reforms included e-filing of petitions, virtual hearings, and live streaming of court proceedings. Data from the e-committee of the Supreme Court reveals that as of 30 June 2021 (for an average of three months), 40,43,300 and 74,15,989 lakh cases were dealt with through video conferencing by the high courts and the district courts, respectively. The e-committee drafted model rules defining the contours of these reforms, indicating that the Indian judiciary in the post-pandemic days is likely to be a hybrid of physical and virtual courts.

While these changes are a welcome step towards improving the efficiency of the system, it is critical to bear in mind that technology is not an elixir for the problems affecting the judiciary. It will bring with it a series of challenges that may make justice even more inaccessible for the common (wo)man.

Digital divide at Bar and Bench

Differential access to devices and technological infrastructure, bandwidth and connectivity issues, and varying levels of comfort and know-how in the use of technology are some of the challenges that affect all the stakeholders in the judiciary, especially those working closely with the district courts in rural parts of India. Preliminary findings from the ongoing survey of trial courts conducted by the office of the Chief Justice of India reveal that only 27 per cent of the courtrooms in the subordinate courts have computers on the judge’s dais and 10 per cent have no access to the Internet. This implies that most courts, especially in the district judiciary, are currently not equipped to function virtually.

Ever since the imposition of the first lockdown in March 2020, the Bar Council of India has expressed concerns over the deep-rooted inequality in access to technology — depriving advocates from certain demographics of their livelihood. A survey conducted by the Vidhi Centre for Legal Policy of 2,800 advocates across eight high courts revealed that there exists a large pay gap between the earnings of entrants and senior advocates in the litigation profession. Eighty per cent of practising advocates, who were part of the pilot survey in Delhi, responded that advocates with up to two years of practice earn anywhere between Rs 5,000 and Rs 20,000 monthly. Shockingly, 40 per cent of young advocates from the High Courts of Allahabad, Bombay, Kerala, Madras, and Patna earn only between Rs 2,000-5,000 monthly, while 50 per cent from the Calcutta High Court said that they earn less than Rs 10,000 a month.

This gives a realistic picture of what could likely be the state of affairs of advocates who practise in semi-urban or rural areas. It is unfair that the system expects these advocates to have access to the Internet, advanced digital equipment, and keep themselves abreast of the latest technological developments in the ecosystem. Undoubtedly, this results in litigation being dominated by a handful of elite advocates who have the privilege to log in from the comfort of their homes or chambers and attend hearings on multiple windows across different high courts and the Supreme Court simultaneously.

Connectivity and technological competence

Robust Internet connection and superior video conferencing facilities are other critical requirements for an uninterrupted virtual court proceeding. The 103 report of the Parliamentary Standing Committee identifies connectivity divide or access to broadband Internet as roadblocks to digital courts. Even the district judiciary in Delhi was unable to provide adequate bandwidth, network-attached storage, and routers for conducting virtual hearings. The high court had to direct the government to procure the necessary hardware to ensure access. The issue is not just confined to the courts, but extends to a substantial number of litigants and advocates as well, who are vulnerable to being excluded from the process of justice delivery due to heterogeneity in Internet penetration.

The last in this genre of challenges is the large proportion of judges, court staff, and advocates who do not have sufficient knowledge and skill to use technology. Legal acumen does not necessarily translate to technological competence, and it is vital that adequate training be imparted to ease the transition from traditional paper briefs to screens and systems.

A coordinated effort to address a gamut of issues

Access to foundational infrastructure, stable Internet connection, and the ability to use technology in the conventional work routines are only some of the teething problems that the justice system is facing. Ensuring secure video and audio conferencing without compromising the privacy of the litigants and adhering to the ‘open court’ principles are key challenges that will need the system’s due attention. On the criminal justice side, the judiciary has another gamut of issues to consider while integrating its processes with technology.

Better coordination between the judiciary and the government concerning the allocation of funds and procurement of necessary hardware and inclusion of experts to design and build the standards and specifications for the software to enable the digital transformation of the judiciary at all tiers are urgent requirements. The road ahead does not look easy unless all the stakeholders cooperate to overcome bureaucratic hurdles, prioritise funding to address the foundational problems, and build systems that are inclusive to ensure better access to justice.

Reshma Sekhar is Senior Resident Fellow with the Justice, Access and Lowering Delays in

Source: The Print, 1/11/21

Copyright and Trademark Offences – Bailable or Not?: Bombay HC Also Weighs In

 Recently, the Bombay High Court was faced with a controversial question of law while hearing an anticipatory bail application. The bail application was filed in response to a criminal report registered, inter alia, under Section 63 of the Copyright Act and Section 103 of the Trade Marks Act. The primary issue addressed by the court was whether these offences are bailable in nature or non-bailable. The court ruled on the side of the latter, holding these offences to be non-bailable. In this post, I shall analyse this order and situate it in the context of its implications for free speech in the country.

Background

The above mentioned provisions deal with the infringement of copyright and trademarks respectively. Both of them prescribe a punishment of “not less than six months but which may extend to three years” in addition to the fine. The First Schedule of the Code of Criminal Procedure (‘CrPC’) provides for a three category classification of offences as bailable or non-bailable in accordance with the prescribed punishment. The second category in this classification states that offences “punishable with imprisonment for 3 years, and upwards but not more than 7 years” are non-bailable. The third category, on the other hand, states that offences “punishable with imprisonment for less than 3 years or with fine only” are bailable in nature. As the offences of copyright and trade marks have a maximum possible punishment of 3 years, it has led to a confusion as to which category they will fall under (see earlier posts on the blog here and here for more detailed context). Accordingly, different high courts have reached contrasting conclusions on this. While Andhra Pradesh High Court and Delhi High Court (here and here) have held these offences to be bailable due to the possibility of less than 3 years of punishment, they have been held to be non-bailable by Gauhati High Court, Kerala High Court (here and here), and Rajasthan High Court, in light of the possibility of a 3 year punishment.

The Order

In the proceedings before the Bombay High Court, the State submitted that “this issue is no more res-integra” as different courts have held that offences punishable with up to 3 years of imprisonment are non-bailable in nature. The court sided with this interpretation, by relying upon a series of its earlier decisions dealing with the Prevention of Insults to National Honour Act, 1971, the Prevention of Corruption Act, and the M.R.T.P. Act, 1966, where the classification was decided based on the maximum possible punishment. It also referred to the recent Division Bench decision of the Rajasthan High Court in Nathu Ram v. State of Rajasthan, where on a reference it was held that offences for which imprisonment “may extend to three years” would fall in the second category, and thereby non-bailable and cognizable.

Missed Points

The above assessment of the Bombay High Court selectively considers only authorities supporting the final outcome arrived at by it, and ignoring the authorities that arrive at a contrary result. Two particularly relevant arguments raised in these orders that were not considered by the court are as follows.

First, the decision of the Supreme Court in Rajeev Chaudhary v. State (N.C.T.) of Delhi (‘Rajeev Chaudhary’) has not been addressed. The decision was rendered in the context of Section 167 of the CrPC and the court held that “imprisonment for a term of not less than ten years” will not include the offence of extortion that provides “imprisonment of either description for a term which may extend to ten years”. This has been distinguished by the Delhi High Court by considering that the language of the classification of offences in the First Schedule is “materially different” to the term “not less than” used in Section 167. The Rajasthan High Court similarly distinguished this decision considering it to be “in different context”. This, however, involves a discussion that does not consider the specific wording of the First Schedule. To reiterate, it uses the phrase “punishable with imprisonment for 3 years, and upwards but not more than 7 years.” (emphasis supplied). There is a deliberate use of the term ‘and’ in the classification. This possibly implies that the concerned offence must be punishable for 3 years and above, and not merely 3 years. A different interpretation would render the term ‘and’ redundant. If the view of the courts classifying these intellectual property offences in the second category were correct, then the term ‘and’ would have to be instead read as an ‘or’ which cannot be the case here. Accordingly, if the use of ‘and’ is considered deliberate, this makes the provisions in line with that in Rajeev Chaudhary since the effective interpretation of both provisions is the same. This interpretation should be favoured, as rightly pointed out by the Andhra High Court, in light of the fact that criminal provisions are required to be interpreted strictly.

Second, the Supreme Court decision in Avinash Bhosale v. Union of India has not been discussed. This was rendered in relation to Section 135(1)(ii) of the Customs Act, 1962. It prescribes for a punishment of “imprisonment which may extend to three years” (identical to the intellectual property offences being discussed in this post). The apex court had held this to be a bailable offence. As the language of both the copyright and the trademark offences is identical, this interpretation would squarely apply to them and they must be considered as bailable. A similar view was also taken by the Delhi High Court.

In light of the non-consideration of the above Supreme Court judgments, it appears that the Bombay High Court order might be considered per incuriam and not good law.

Impact on Free Speech

Holding copyright and trademark offences to be cognizable and non-bailable in nature has a significantly high impact on freedom of speech and expression in the country. Six particular issues need consideration in this regards.

Dissuading Creativity

First of all, as Bhavik rightly argues, the essence of copyright law is to spur creativity and facilitate access to works. With the threat of a police arrest and the absence of bail as a right, creators would indulge in self-censorship lest they might need to serve jail time for their actions. This is particularly true in the modern day hostile environment in the country where creators are regularly targeted for their content. Particularly, there has recently been an increase in what are known as SLAPP litigation (‘strategic lawsuit against public participation’) where several cases have been filed against creators such as comedians.

Silencing Criticism

Secondly, this will also lead to suppression in criticism of unfair practices or government’s policies for fear of retaliation. This is because copyright law in the present day is being used as a means of censorship by both private players and the government. The excessive and unreasonable copyright infringement claims raised by WhiteHateJr to shut down all negative comments are an example of the former. The latter can be seen from recent reports hinting towards false invocation of copyright infringement by the Bangladesh government to take down content criticising the government’s functioning. This would, thus, further reduce the already narrowing boundaries of free speech in the country.

Hampering fair use

Thirdly, this would also dissuade carrying out activities which can be covered within the exceptions to the copyright law as provided in Section 52. This is because the determination of whether the concerned activity falls under the exception or not will happen only at a later stage of trial. Until such determination takes place, the threat of being booked under a cognizable, non-bailable offence and thereby the possibility of serving jail time looms large. For instance, consider an individual who runs a photocopying shop in Delhi where they photocopy entirety of books for the aid of students of a nearby university. If a copyright infringement suit is filed against them invoking Section 63, then there is a high probability that they will not be held guilty for the same in light of the D.U. Photocopy judgment. However, until the court rules so, the individual can be potentially arrested and put behind bars without any fault of theirs.

Trademark Bullying

Fourthly, even in context of trademarks, similar concerns persist. As the recent BigBasket-Daily Basket dispute indicates, big players regularly indulge in trademark bullying to drive smaller players out of the market or to make their business suffer. If such measures are resorted to, then legitimate trade mark owners also are exposed to the threats of being booked by a cognizable, non-bailable offence. A determination of whether there was indeed any infringement or not, or even whether the original mark itself is a generic mark and hence not protected, will only take place later during the trial. The situation is worsened by the absence of a consistent principle-based approach taken by Indian courts while dealing with issues such as likelihood of confusion. This further raises the possibility of harassment being suffered by legitimate trade mark owners.

Redundancy of Differentiated Culpability Model

Fifthly, it must be noted that both the legislations provide for differentiated punishment levels in that punishment of less than six months of imprisonment could also be imposed in adequate and special circumstances. The Copyright Act to this end, specifies that a precursor to this is that the “infringement has not been made for gain in the course of trade or business”. Hence, both the legislations envision that certain actions are at a lower level of culpability than others and should be treated liberally. This provision of lesser penalty, however, would become redundant if the offence is considered a cognizable, non-bailable one. This is because in such circumstances the process itself would be highly challenging and excruciating even if the final punishment awarded is minimal. This is because the alleged infringer would need to undergo unreasonable prison time at the whims of the police, thereby probably suffering more than what the punishment would have subjugated them to.

Impact on Vulnerable Groups

Finally, this has special implications for a country like India where the majority of the population is unaware of the functioning of intellectual property legislations. In such a scenario, if police is given unbridled power to arrest individuals without warrant and if bail for the same is made difficult, it could potentially be used as a weapon for harassment with no available remedy for the victims. The large extent of possible intellectual property violations in India and the lack of interpretive clarity on their defences just sets up a system where vulnerable groups can selectively be targeted. It could, thereby, become a mild version of sedition laws with even the private players with high social capital being able to unduly harass their critics.

Conclusion

The constant widening of the scope of criminal provisions concerning intellectual property rights poses significant challenges to the growth of both creativity and freedom of speech in the country. If this is coupled with making these offences as cognizable and non-bailable, it further entrenches the problems posed by this criminalisation. It raises additional questions about the shaky grounds on which criminalisation of intellectual property rights raises as possibly the harms sought to be reduced are countered by much higher harms that are caused by criminalisation in the first place. It is, thus, hoped that a shift towards decriminalisation of intellectual property offences takes place soon. Additionally, it is necessary that some certainty is provided in the interpretive exercise involving the classification of offences under the CrPC, particularly for those offences that do not strictly fall within the ambit of any of the prescribed categories.

by Nikhil Purohit

Source: spicyip.com, 25/03/21