EDITORIAL ADVISORY BOARD
CHAIRMAN
Hon'ble Dr. Justice B.S. Chauhan
Chairman, Law Commission of India
Former Judge, Supreme Court of India
MEMBERS
Hon'ble Justice P.S. Narayana, Member, Mahadayi Water Disputes Tribunal
Prof. Mizanoor Rahman, Chairman, National Human Rights Commission, Bangladesh
Prof. H.J.F. Silva, Vice president, CLEA/Professor of Law, United Kingdom
Mr. R. Venkataramani, Senior Advocate, Supreme Court of India
Prof. (Dr.) A. Lakshminath, Vice Chancellor, CNLU, Patna
Prof. (Dr.) R. Venkata Rao, Vice Chancellor, NLSIU, Bangalore
Prof. (Dr.) P.S. Jaswal, Vice Chancellor, RGNUL, Patiala
Prof. (Dr.) Iswara Bhat, Vice Chancellor, NUJS, Kolkata
Prof. (Dr.) B. C. Nirmal, Vice Chancellor, NUSRL, Ranchi
EDITORIAL COMMITTEE
CHAIRMAN
Prof. (Dr.) S. Sivakumar, Member, Law Commission of India
Hony. Chairman, Academic Advisory Board, Lloyd Law College, Greater Noida
MEMBERS
Prof. (Dr.) Tara Prasad Sapkota, Dean, Faculty of Law,
Tribhuvan University, Nepal
Prof (Dr.) Wadir Sa, Dean, Kabul University, Afghanistan
Prof. (Dr.) Manjula Batra, Former Dean, Faculty of Law,
Jamia Millia Islamia, New Delhi
Prof. (Dr.) Satish Chandra Shastri, Dean, College of Law & Governance, Mody University Rajasthan
Prof. (Dr.) D.K. Sharma, Dean, Department of Law, Banaras Hindu University, Uttar Pradesh
Prof. (Dr.) R.K. Chaubey, Dean , Department of Law,
Allahabad University, Uttar Pradesh
Dr. Manish Arora, Director, Universal Law Publishing Co., New Delhi
Prof. (Dr.) Kameswari Gowda, Prof., Lloyd Law College, Greater Noida
Dr. Md. Salim, Director, Lloyd Law College, Greater Noida
LEXIGENTIA
MANAGING EDITORMr. Manohar Thairani
President, Lloyd Law College, Greater Noida
EDITORDr. Lisa P Lukose
Associate Professor, University School of Law & Legal Studies,
Guru Gobind Singh Indraprastha University
CO- EDITORMr. Akhilesh Kumar Khan
Head of Department (B.A., LL.B- 5 years) Lloyd Law College,
Greater Noida
ASSOCIATE EDITORAnjali Prabhakaran
Assistant Professor, Lloyd Law College, Greater Noida
ASSISTANT EDITORSDr. Vikram Singh Jaswal
Assistant Professor, Lloyd Law College, Greater Noida
Meera Mathew
Assistant Professor, Lloyd Law College, Greater Noida
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Contents
1. Freedom of Speech and Expression Justice B. S.Chauhan 1
2. Is Expression Free? A. Lakshminath 10
3. Fair Use for Educational Purpose : S. Sivakumar 39
An Analysis Lisa P. Lukose
4. Liability of the Vehicle Insurance Rajesh Kumar 48
in the Class of Fake and Inappropriate
Driving Licenses
5. Decriminalization of Attempt to Suicide : Rituraj Sinha 65
A Move from Retaliation Sonali Roy Choudhary
to Rehabilitation
6. Does Privatization Serve the Public Prakash Sharma 80
Interest? An Assessment of the
Risks and Benet of Prison Privatization
7. Press Clause and Speech Clause Meera Mathew 98
Constitutional Interpretation in India
and America : Comparative Analysis
8. Law of Sedition : History and Practice N. Jayalakshmi 111
9. Good Governance and its Challenges Sougata Talukdar 130
in India : An Overview
10. Corporatization of Agriculture and Tejendra Meena 154
Its Effect
11. The Trend of Media Trial in India: Vaishali Arora 174
Its Contours and Juxtaposition
With the Norms of Journalistic
Ethics and Self-Regulation
1
FREEDOM OF SPEECH AND EXPRESSION
*Justice B S Chauhan
Abstract
The freedom of speech and expression is the rst and foremost human right to make the life
meaningful. This right is enshrined in all international legal instruments on human right.
This right undoubtedly is the cornerstone of democracy which enables the citizen to take part
in democratic process. Free ow of information cannot be guaranteed without protecting and
enforcing freedom of speech and expression. This article aims to discuss the limitations and
reasonable restrictions the state can impose on the freedom of speech and expression and the
logic behind such reasonable restrictions.
I Introduction
The freedom of speech and expression is regarded as the rst condition of 1
liberty. It occupies a preferred and important position in the hierarchy of
the liberty, it is truly said about the freedom of speech that it is the mother
of all other liberties. Freedom of speech and expression means the right to
express one’s own convictions and opinions freely by words of mouth, 2
writing, printing, pictures or any other mode. It thus includes the
expression of one’s ideas through any communicable medium or visible
representation, such as, gesture, sign and the like. In modern time it is
widely accepted that the right to freedom of speech is the essence of free
society and it must be safeguarded at all time.
II Essence of right o freedom of speech
There are three notions which are essential in appreciating the essence of
right o freedom of speech:
i. Discussion,
ii. Advocacy, and
iii. Incitement.
* Chairman, Law Commission of India.1 Subhramanyam Swami v. Union of India, W.P. (Crl) 184 of 2014.2 John Milton, “Freedom of Speech and Expression India v America - A study” 2007 India L. J.
Freedom of Speech and Expression
2 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
Indisputably, any plain discussion or even advocacy of a specic matter
attracts protection article 19(1) (a) of Indian Constitution. It is just while
such discussion or advocacy arrives at the point of incitement that article
19(2) inevitably comes into question. The advocacy is protected from
regulation unless it takes the form of incitement. For illustration,
advocacy can have various forms and it can range from the modest to the
bullying, and the manner at which the advocacy is designed can similarly
array from the permissible or harmless to the inacceptable or forbidden
one. For this, it is very vital that a speaker or communicator to have a
clear-cut perception of what is right and what is wrong, what is nationalist
and what is anti-national; what connotes the offending to state. Though
there are various theories on speech exist, the modern theories justifying
the freedom of speech are dominated by a utilitarian vision: speech is
protected because it is necessary to achieve some greater, often ultimate,
social good. This leads to the philosophy of necessity in maintaining and
preserving freedom of speech and expression in tune with prevailing
social order.
J Frankfurter observes’: “Not every type of speech occupies the same position on the
scale of values. There is no substantial public interest in permitting certain kinds of
utterances ....” Here comes the relevance of regulating the speech. Even our much learned
Constitution drafting committee members also realised that no freedom can be absolute or
completely unrestricted. It is undeniable that freedom is like oxygen. In the unforgettable
words of Charles Bradlaugh “Better a thousand fold abuse of free speech than denial of free
speech. The abuse dies in a day but the denial slays the life of the people and entombs the 3hopes of the race.”
“Ley dey key apney paas faqat ik nazar to hai
Kyon dekhen zindagee ko kisee kee nazar sey hum.”
- Sahir Ludhiyanvi
(I have nothing but only a vision of my own, why to view life with
someone else’s vision).
3Jewish Supremacism, Freedom of Speech and My Book Jewish Supremacism, available at http://davidduke.com/freedom-of-speech/
3
In a constitutional democracy, a highly sensitive law which encroaches
upon the citizen’s rst freedom - the freedom of speech and expression-
must be in accordance with the basic spirit of the Constitution
guaranteeing such right. Freedom of speech and expression given under
article 19 of the Indian Constitution is often considered as primary right
which is not only fundamental but takes precedence over other rights.
The Supreme Court has always relied upon the relationship between free 4speech and the promotion of democracy. In Rangarajan, the court held
that democratic form of government itself demands (from) its citizens:
- An active and intelligent participation
- Public discussion with people’s participation is a basic feature
- And rational process of democracy which distinguishes it from all
other form of government.
III Reasonableness
For the criterion for test of reasonableness is whether the law strikes
proper balance between social control and the rights of the individual.
The following aspects are taken into account:
1. Nature of the right infringed;
2. Evil sought to be remedied by the law, its extent and urgency;
3. Whether restrictions are proportionate to the evil; and prevailing
conditions at the time.
However, under article 19(2), reasonable restrictions are provided. The
Supreme Court have justied the restrictions on free speech imposed by
article 19 (2) on utilitarian grounds: some restrictions on freedom may be
necessary so that others may also enjoy their liberties. As noted by the 5
Supreme Court in A. K. Gopalan case:
“Man, as a rational being, desires to do many things, but in civil society
his desires have to be controlled, regulated and reconciled with the
4 S Rangarajan v. P Jagjivan Ram, 1989 SCC (2) 574 which laid down that while there has to be a balance between free speech and restrictions for special interest, the two cannot be balanced as though they were of equal weight and Romesh Thappar v. State of Madras, 1950 AIR 124. 5AIR 1950 SC 27.
Freedom of Speech and Expression
4 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
exercise of similar desires by other individuals… Liberty has, therefore,
to be limited in order to be effectively possessed”.
6In the famous article titled “Dignity and the Visibility of Hate”, the
author, Jeremy Waldron explained how and why restrictions to speech
further the legitimate public interest in maintaining a “well-ordered
society. He categorically says:
“When people call for the sort of assurance to which hate speech laws
might make a contribution, it is not on the controversial details of justice.
Instead, it is on some of the most elementary fundamentals—that all are
equally human and have the dignity of humanity, that all have an
elementary entitlement to justice, and that all deserve protection from the
most egregious forms of violence, exclusion, and subordination”..
IV The law of sedition
The law of sedition was made so as to protect the state from those who
excite disaffection towards, the Government established by law and also 7
includes disloyalty and all feelings of enmity. The state is empowered to
punish those who jeopardize the safety and stability of the State, or
disseminate such feelings of disloyalty as have the tendency to lead to the
disruption of the State or to public disorder. Also, any element that has
tendency to disturb the tranquility of the State and lead ignorant persons
to endeavour to subvert the Government and laws of the country need to
be taken action against. The objects of sedition generally are to induce
discontent and insurrection (revolt, rebellion).
However, to call an act seditious it is important to note that it is an
intentional act that causes class hatred. Hatred implies an ill-will, hatred
and contempt are the state of mind in relation to the object. Also, when the
debates or discussion crosses the limits of fair and honest criticism
against the government may be considered as Seditious. There must be a
direct and immediate object of incitement to violence and even the mere
talk of armed revolution in Russia or even in India in theoretical terms
62010, Harv. L. Rev.7 Indian Penal Code 1860, section 124 A.
5
and the verbal demand for a national government and a national army to
resist, say, Japanese aggression, is anything but an incitement to violence.
Hence, when an act of speech has a reasonable chance of catalyzing or
amplifying violence by one group against another, given the
circumstances in which it was made or disseminated, such are not
legitimate one, but is dangerous speech. Under the common law system,
such speech had been treated as a ‘sui generis’ that is, ‘outside the realm
of protected discourse’. It can be observed that violent acts of hate are
generally preceded by hate speech that is expressed publicly and
repeatedly for years, be it by politicians, journalists, so-called activists, or
even the state. Many assassinations, terrorism, genocide, ethnic
cleansing have had happened in many places due to this provocation. We
have witnessed the dangers of racial invective and defamatory hate
speech as experienced in places ranging from Western Europe to the
former Yugoslavia, in Eastern Europe, and down to Rwanda. The efforts
to proscribe and punish speech, although taken to promote the dignity
and self-worth of every individual and protect against the evils hate
speech triggers, ultimately fail to attain the requisite level of legality on 8an international level.
Indisputably, offensive speech has real and devastating effects on
peoples’ lives and risks their health and safety. It’s harmful and divisive
for communities and hampers social progress in ghting discrimination.
Left unchecked, hate speech can lead to war and genocide.
Speech can harm directly or indirectly, or both. It may directly offend,
denigrate, humiliate or frighten the people it purports to describe – such
as when a racist shouts at a person of colour. Speech can also bring about
harm indirectly – and with equal or even greater brutality – by motivating
others to think and act against members of the group in question.
Although the right to free speech is a fundamental value, it should not be
allowed to outweigh the basic human rights of other people, especially
their right to life.
8 See, David Bauman,Hate Speech and Human Rights , avai lable at http://today.uconn.edu/2014/07/hate-speech-and-human-rights/
Freedom of Speech and Expression
6 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
As legal and judicial reforms advance in many countries, it is clear that
there is a parallel need for attention towards Indian legal aspect. The
American Constitution though forbids apparent restrictions on speech,
there are various doctrines that are practised to avert hate speech. The 9 10
doctrines such as- “reasonable listeners test,” “present danger test,” 11 12“ghting words” are just examples. The chilling effect concept had
been recognized most frequently and articulated most clearly in
decisions chiey concerned with the procedural aspects of free speech
adjudication.
Currently, with the onset of internet, smart phones and advanced digital
media the mass communication’s availability has become so unrestricted
and largely unedited scale. Any distasteful, disagreeable, and even
violent or dangerous posts are published just as easily as their more
stimulating and likeable counterparts. It is undeniable and inevitable that
not all of that speech and expression will be pleasant or tolerable to all
who view it, but it is a long-standing tenet of democracy that even
distasteful views and opinions deserve a measure of protection.
Many foreign courts also have made a similar point in an opinion
upholding a restriction on hate propaganda. However, it does not mean
that the government cannot be criticized when the decisions taken by it
are wrong and arbitrary. With our democratic set up, every institution
including government has to be held accountable for its laws and
policies. And this can be done only by the citizens of the country who
have the right to express their assent or displeasure over an issue. By
imposing regulations and reasonable restrictions, it does not mean that
state is creating an environment where the dissenting opinion is heard and
9 Whether or not a reasonable recipient of the statement would believe it constituted a true threat.10 whether the words are used in such circumstances as to create a clear and present danger.11 As rstly established by US Court In Chaplinsky v. New Hampshire. This doctrine is another limitation to freedom of speech (1942). 12 This doctrine denotes a situation where a speech or conduct is suppressed by fear of penalization at the interests of an individual or group.
7
respected; the government today is annihilating the masses from
expressing their views.
It has been seen that the youth in India keep appreciating the American
jurisprudence on freedom of speech for its so-called liberal
interpretation. One can notice the changing paradigm of legislative and
judicial opinions after 9/11 attacks. It had been severely exacerbated the
then prevailed notions of personal liberty and freedom. Surveillance and
Supervision had crept in to weed out the greatest threats to civil liberties.
Hence one nation cannot simply follow the libertarian tradition today.
Nation, sovereignty, the very subsistence of state etc. are to be valued
rst.
Now the policies of government and the state for the very subsistence of
its nature cannot be devalued for private person’s liberty and freedom.
The state comes rst and then only people. Let us analyze this with a
hypothetical example especially for those who glorify the European and
American liberty. A tourist tries to check into any hotel. He must show
his passport or required identity card, and personal data goes directly to
the national police or internal security service for whatever checks on
him they want to make. Hence, every nation has its own internal security
policies and regulations. There is no point in holding a suspicion about
everything- be it on government, be it on fellow human beings, or even on
any institutions. With such a mistrust and doubt, nothing can be worked
out. A patient trusts the doctor and takes the medicine, a client trusts the
advocate and gives his case, a student trusts the teacher on what he or she
teaches, then why governed population lacks such a trust on government?
Further, we have undoubtedly a vigorous and active judiciary that keep
watching and examining such situations. We also have an active press
and media to report such matters. In the intimidation of having a possible
mishandling, a proposed law that is need for the time cannot be
disregarded.
V Conclusion
Much to the concern of despots everywhere, nonetheless, is that today’s
Freedom of Speech and Expression
8 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
Internet is sprouting – at least literally – to everyone having access to their
own shortwave-like potential to be able to talk to anybody anywhere in
the world. With the social media - tweets and posts are creating biggest
threats. They are becoming more complicated to handle than other means
of propagation like newspapers, broadcasting, telecasting etc. Millions
and millions of people are accessing social media at a time. Imagine the
volume of information and data they write and post that can be a mere
opinion or view or comment but can also be an inciting comment. The
legal system cannot leave such chance of any of its citizen posting any
malicious messages and transmitting it across which others keep sharing
and circulating. The interesting aspect on this is as to how government
could restrict this mode of speech! And this sort of restriction should not
be like the misuse we had seen earlier on section 66A of Information 13Technology Act. Secondly, how to determine the impact upon the reader
since the psychological question relating to the reaction of the reader
arises through desktop or laptop or smart phones.
For example, we have seen the exodus of poor North East students after
such threatening posts; we have seen many riots taken place due to such
obnoxious and abhorrent messages being circulated. In other countries,
there are proper legal proviso to proscribe similar situations. They have
ltering process via content regulation. Some countries even adopted the
extreme regulations. For instance, in China, government regulate internet 14
through censoring some information and websites.
Now in Bolivia a Bill is pending that seeks to ban anonymity online;
punish collecting and processing personal information without consent
and so on, hence government specically proposed a new department to
be created so as to monitor social networking sites. Similarly, in most
other parts of the world – democratic or not – the communications
infrastructures are mostly government owned or operated there is content
13 This section has been struck down in Shreya Singhal v. Union of India, AIR 2015 SC 1523.14 Beina XU, Media Censorship in China, Council on Foreign Relations available at http://www.cfr.org/china/media-censorship-china/p11515.
9
surveillance and monitoring of Internet based trafc by one or more
government intelligence or law enforcement agencies – and usually
without any threshold showing or requirement for probable cause or
reasonable belief to look at the substance of the communication.
Unless our mental barriers towards reforms are mellowed, all doses of
external remedies are bound to fail. Hence it is the need of the time to
have review on present laws pertaining to speech and expression in the
light of social media boom and many cases of ghting words being
reported. It is worth to quote John G. Roberts J, the earlier Chief Justice of
the United States:
“Speech is powerful. It can stir people to action, move them to tears of
both joy and sorrow, and . . . inict great pain. Hence it is to be delivered
rightfully.”
Freedom of Speech and Expression
10 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
IS EXPRESSION FREE?
* A. Lakshminath
Abstract
This article discusses and analyzes the jurisprudential point of view of the right of freedom
and expression in depth by referring to literature and various aspects of modern and post-
modern view of human rights and human dignity. It has also referred to the practice or
approach of courts and contribution from the different quarters of fourth estate. The article
points out the disturbing features of the contemporary times relating to religious
conservatism, advanced communication technology which threatens the humanity and
individual freedom. It has further stressed on the need of reinvention and re-articulation of
the foundational principles to save the world from holocaust and suggests reinvention of the
principles of Hindu philosophy for preservation and ensuring human dignity while asserting
or guaranteeing or enforcing freedom of speech and expression.
I Introduction
1WRITING IN 1859, J.S. Mill in On Liberty emphasized that ‘the only
purpose for which power can rightfully be exercised over any member of
a civilized community, against his will, is to prevent harm’… In the part
which merely concerns himself, his independence is of right absolute
over himself, over his own body and mind, the individual is sovereign.
Yet whatever mischief arises from their use is greatest when they are
employed against the comparatively defenceless; and whatever unfair
advantage can be derived by any opinion from this mode of asserting it,
accrues almost exclusively to receive opinions.
Content and viability are essential for the assertion of right in the wider
sense. Content includes ethical assertion which forms the critical
importance of certain freedoms, viz., freedom from (torture) and
correspondingly about the need to accept some social obligation to
promote or safeguard these freedoms. Viability includes open
impartiality or open and informed scrutiny. Viability in impartial
reasoning is central to the vindication of rights even if such reasoning is
ambiguous or dissonant as in the case of American Declaration, French
Declaration and Universal Declaration of Human Rights.
* Pro-Chancellor-Emeritus/Vice-Chancellor, Chanakya National Law University, Patna.1John Stuart Mill, On Liberty (Longman, Robert & Green, London, 1869).
11
II Human rights
The acceptance of a class of human rights will still leave room for further
discussion, disputation and argument that is indeed that nature of
discipline. The validity is ultimately dependent on the presumption of the
claims of survivability in unobstructed discussion. It is extremely
important, as Amartya Sen puts to understand this connection between
human rights and public reasoning especially in relation to demands of 2objectivity.
The universability of human rights relates to the ideas of survivability in
unobstructed discussion – open to participation by persons across
national boundaries. Partisanship is avoided not so much by taking either
a conjunction, or an intersection, of the views respectively held by
dominant voices in different societies across the world … but through an
interactive process, in particular by examining what would survive in
public discussion, given a reasonably free ow of information and
uncurbed opportunity to discuss differing points of view.
3Human rights are thus seen by Sen as “pronouncements in social ethics,
sustainable by open public reasoning”. And he emphasizes that “the
understanding and viability of human rights are … intimately linked with
the reach of public discussion, between persons and across borders”. For
Kant the core of what makes judgment possible is our “common sense” 4shared by other judging subjects. It is this shared sense that allows us to
exercise an “enlarged mentality” by imagining judgments from the
standpoints of others. For Kant the ground for our “common sense” is the
identical cognitive faculties of imagination and understanding that all 5
human beings share.
The UDHR is intended as a minimum standard which should nd
universal acceptance in order to prevent the expected “clash of cultures
2Amartya Sen, The Idea of Justice (Penguin Books, 2010).3 Supra note 3.4 Immanuel Kant, Critique of Judgment (Hackett Publishing Company, Indianapolis, 1987).5Ibid.
Is Expression Free?
12 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
and civilizations”. One of the consequences of rights being the point of
departure for constitutional law is that phenomenon like social rights
(which are in fact duties or responsibilities of the states) have been
drafted as individual claims in national constitutions despite their non-
justiciability (e.g., directive principles and fundamental rights). Hardly
two decades later, the UDHR gained the status of an obligatory (albeit
non-justiciable) document for all the countries of the world.
Brian Berry has ably demonstrated why Rawls theory of “justice as
mutual advantage,” being inadequate to consider the intergenerational
question, must be expanded to include the notion of “justice as 6
impartiality”. Amartya Sen acknowledges “the inuence of Theory of
Justice had extended by the early 1980’s, beyond the realm of political 7
philosophy to that of welfare economics. Rawls’ conception of justice
should include the internal justice of the family and the individual,
assuring adequate protection of human rights, in his wider conception of
moral development. The irony of the Rawlsian legacy is that the
difference principle and the pragmatic conception of ‘overlapping
consensus’ aroused maximum interest in countries where social welfare
policies and human rights protection have been the most developed -
whereas in developing countries like India this aspect of Rawls’ early
work has been virtually ignored.
This includes any act of seeking, receiving and imparting information or
ideas, regardless of the medium used. In practice, the right to freedom of
speech is not absolute and is commonly subject to limitations such as
libel, slander, obscenity, sedition (including, for example inciting racial
hatred), copyright violation, revelation of information that is classied.
The right to freedom of expression is recognized as a Bill of Rights under
article 19 of the UDHR and is recognized in international human rights
law in the International Covenant on Civil and Political Rights. Article 19
of this states that “[e]veryone shall have the right to hold opinions
6 T.S.N. Sastry, India and Human Rights: Reections (Concept Publishing Company, New Delhi, 2005).7 Ibid.
13
without interference”, and “everyone shall have the right to freedom of
expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media of his
choice”. Article 19 of Indian Constitution adds that the exercise of these
rights carries “special duties and responsibilities” and may “therefore be
subject to certain restrictions” when necessary “[f]or respect of the rights
or reputation of others: or “[f]or the protection of national security or of
public order (ordre public), or of public health or morals”.
Concepts of freedom of speech can be found in early human rights
documents. England’s Bill of Rights in 1689 granted “freedom of speech
in Parliament”. The Declaration of the Rights of Man and of the Citizen,
adopted during the French Revolution in 1789, specically afrmed
freedom of speech as an inalienable right.
Article 19 of the UDHR, adopted in 1948, states that:
Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and
regardless of frontiers.
International, regional and national standards also recognize that
freedom of speech, as the freedom of expression, includes any medium,
be it orally, in written, in print, through the internet or through art forms.
This means that the protection of freedom of speech as a right extends to
not only the content, but also its means of expression. The English poet,
John Milton offered one of the earliest defences of free speech (in early
modern times). His essay on the right to divorce had been refused a 8
licence for publication. He then published in 1644 Areopagetica, which
is one among history’s most inuential and impassioned philosophical
defences of the principle of a right to freedom of speech and expression,
without a licence.
8 John Milton, Areopagetica: For the Liberty of Unlicensed Printing (The Grolier Club, New York, 1644)
Is Expression Free?
14 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
Today, we nd two main arguments used to defend free speech. There are
instrumental arguments that free speech results in tangible benets. A
good example is Meiklejohn’s argument that it promotes the sort of 9
discussion that is a precondition to the functioning of democracy. This
argument appeals to consequences and is, theoretically, testable by
reference to empirical evidence. More commonly today, moral
arguments are preferred in defence of free speech. Some arguments tend
to move from what it is to be a person to the idea that it is an infringement
of autonomy or dignity to remove or restrict speech.
One of the most interesting challenges to free speech today is Holocaust
denial. It is particularly useful to test out Mill, who we saw emphasized 10
the truth or falsehood of statements. The Holocaust – the planned and
systematic extermination of European Jews by the Nazis – is a “fact” – it
is, however, one beset by controversy. There are “Holocaust deniers”
(they prefer the term “revisionists”) who doubt that it happened or who
see the orthodox view that 6 million perished as a gross exaggeration (an
MEP elected in 2014 is on record as saying it was “merely” 340,000).
Some deny there were gas chambers in Auschwitz (a common allegation
is that Jews put them there after the war to assist in the creation of the state
of Israel). Like those who believe the sun goes round the earth and those
who believe the earth is at and those who believe the world was created
in six days, Holocaust deniers are wrong. It is not even a subject worthy of
debate. The Holocaust is an incontestable fact. A number of countries
have criminalized Holocaust denial. UK has not done so.
What then of hate speech? This typically degrades people because of
their race, religion or sexual orientation. It targets minorities. Hate speech
is intended to “compromise the dignity of those at whom it is targeted… it
aims to besmirch the basics of their reputation, by associating descriptive
characteristics like ethnicity or race, or religion with conduct or attributes
that should disqualify someone from being treated as a number of society
9 Alexander Meiklejohn, Free Speech and its Relation to Self- Government (Harper Bros., New York, 1948) 10 Will Cartwright, “ John Stuart Mill on Freedom of Discussion” 5 RJP (2003)
15
in good standing”. It invariably involves acts of extreme racism delivered
provocatively.
It is questionable whether protecting hate speech protects the wrong
people: those with the power of communication at the expense of the
vulnerable. But some liberals believe this is a price to be paid to uphold
their cherished principle of free speech. Some argue that “Hate Speech”
degrades people because of their race and religion targeting minorities
intended to compromise the dignity of those who are targeted. It can only
be countered by more speech citing Nazi march in Chicago which was stheld as protected under 1 amendment freedom. Some liberals believe
that this is price to be paid to uphold the cherished principle of free
speech.
Human rights developed as a concept mainly within Western societies.
But Beitz emphasises that justication needs to be “valid across the 11religious, moral and political societies in today’s pluralistic world”.
Catharine A. Mackinnon asserts that the law of equality and the law of 12freedom of speech are on a collision course. In the United States, the law
of freedom of expression has grown as if a commitment to speech were no
part of a commitment to equality and as if a commitment to equality had
no implications for the law of speech. Issues at the equality–speech
interface are not framed as problems of balance between two cherished
constitutional goals, or as problems of meaningful access to either right
in the absence of the other, but as whether the right to free speech is
infringed acceptably or unacceptably, whether what is called freedom
will give way to an imposed equality. Equality–promoting provisions in
the United States concerning hate crimes, campus harassment, and
pornography, […] for example, tend to be attacked and defended solely in
terms of the damage they do, or do not do, to speech. At the same time,
issues such as racial segregation in education, with its accompanying
illiteracy and silence, are framed solely in equality terms, rather than also
11 Charles Beitz, The Idea of Human Rights (Oxford University Press, New York, 2009).12 Catharine A. Mackinnon, Only Words (Harvard University Press, Cambridge, 1993).
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as ofcial barriers to speech and therefore as violations of the First
Amendment freedoms.
When pornography and hate propaganda explode, as they are in what
Yugoslavia was and elsewhere in Eastern Europe, they tend to be met
with indifference or afrmatively embraced as freedom under US-style 13
speech theory. As pornography and its defense as ‘speech’ take over
more of the world, pervading law and consciousness, desensitizing
whole populations to inhumanity, and sexualizing inequality, legal
attempts to reverse rising racial, ethnic, and religious discrimination,
harassment, and aggression – often ending, as in Croatia and Bosnia-
Herzegovina, in genocide – may be disabled. The ofcial history of
speech in the United States is not a history of inequality – unlike in
Europe, where the role of hate propaganda in the Holocaust has not been 14forgotten.
The evil to be avoided is government restricting ideas because it
disagrees with the content of their political point of view. The terrain of
struggle is the mind; the dynamic at work is intellectual persuasion; the
risk is that marginal, powerless, and relatively voiceless dissenters, with
ideas we will never hear, will be crushed by governmental power. This
has become the ‘speech you hate’ test: the more you disagree with
content, the more important it becomes to protect it. The marketplace
becomes the battleeld when we are assured that truth will prevail while
grappling in open encounter with falsehood, as Milton is often 15
paraphrased.
The existing law against pornography was not designed to see harm to
women in the rst place. It is further weakened as pornography spreads,
expanding into new markets (such as video and computers) and more
legitimate forums and making abuse of women more and more invisible
as abuse, as that abuse becomes more and more visible as sex. So the
13 Jessica Spector, Prostitution and Pornography: Philosophical Debate about the Sex Industry (Stanford University Press, 2006).14 Id.at 83.15 Supra note 8.
17
Court became increasingly unable to tell what is pornography and what is
not, a failing it laments not as a consequence of the saturation of society
by pornography, but as a specically judicial failure and, nally, as an
area in which lines cannot be drawn. The stage is thus set for the
transformation of pornography into political speech: the excluded and
stigmatized ‘ideas’ we love to hate. The way this protects what
pornography says and ignores what it does – or, alternatively, protects
what pornography says as a means of protecting what it does – is
obscured. Thus, can a law develop which prohibits restricting a lm
because it advocates adultery, but does not even notice a lm that is made
from a rape.
Child pornography is not considered the speech of a sexually dissident
minority, which it is, advocating ‘ideas’ about children and sex, which it 16does. Perhaps the fact that boys were used in the lm in the test case has
something to do with it. The ability to see that child pornography is
harmful has everything to do with a visceral sense of the inequality in 17
power between children and adults, yet inequality is never mentioned.
A new principle can be dened in terms of specic experiences, the 18
particularity of history, substantively rather than abstractly. It will
notice who is being hurt and never forget who they are. The state will
have as great a role in providing relief from injury to equality through
speech and in giving equal access to speech, as it now has in disciplining
its power to intervene in that speech which manages to get expressed.
No one seeks “a uniform ethical system”, but everyone wants “necessary 19
minimum of shared ethical values”. “When a state utterly or egregiously
fails to protect the rights of the people residing within its jurisdiction the
rest of humanity must have capacities to do more than sit idly by until the
16David Dyzenhaus, Sophia Reibetanz Moreau, et.al. (eds.)Law and Morality: Readings in Legal Philosophy 950 (University of Toronto Press, Toronto, 2007).17 Ibid.18 Supra note 12.19 Hans Kung, A Global Ethic: Development and Goals, Available at: http://www.interreligiousinsight.org/January2003/Jan03Kung.html (last visited on Sept. 12, 2016).
Is Expression Free?
18 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
slaughter is nished or merely assist the victims after they are
violated…….”
Others committed to moral cosmopolitanism also explore its
implications. What institutions will result world government? States
being given only “conditional sovereignty”? Pogge offers us the fullest
exploration of institutional cosmopolitanism, Falk presents the most 20
convincing case for international humane governance.
21James Nickel in Making Sense of Human Rights denes human rights
as basic moral guarantees that people in all countries and cultures have
simply because they are humans. Tobin says human rights protect human
dignity. Human Rights are interdependent and indivisible.
As Camus suggested there does not seem to be an absolute meaning to
life, for human beings, to nd something useful to do and some reason to 22
live. The post-modern future will be one in which our idea of justice will
be reformed so as to reect a world of ‘small contingent facts’ rather than
an ephemeral illusion of large necessary truths (Rorty). Rorty’s post-post
modernism or post-Nietzschean world will not be quite so ironic or
whimsical or playful as its post-modern predecessor. The stakes in terms
of human sufferings are too high and too immediate as can be seen with
the rising of ‘ethnocentrism’. Rejection of absolute contingency of
Neitzschean post-modernism leaves one with either Kantian
universalism or some kind of murky middle ground. Ethnocentrism
represents privileging of localized group moralities and political values
which is dangerously anti-liberal and liable to justify any number of
undesirable and un-liberal ethnocentrism forms of exclusionary politics.
However, both Unger and Rawls seem to support ethnocentrism. But
such danger can be avoided, as Rorty suggests, by employing strong
liberal political institutions which can preserve procedural justice and
20 Richard Falk On Humane Governance (American University, 1998).21 James W. Nickel Making Sense of Human Rights (Georgetown University Press, Washington D.C., 2004).22 Albert Camus “Stanford Encyclopedia of Philosophy”, available at: https://plato.stanford.edu/entries/camus/ (last visited on Sept. 12, 2016).
19
thereby prevent the state from slipping into a kind of modernist liberalism
of Kant.
Freedom is important; Happiness is important; Autonomy is important
are all ethical assertions. Assessment of viability depends on public
scrutiny – validation of ethical claims from other types –utilitarian, 23
Rawlsian or Nozickian. People speak of moral rights while advocating
their incorporation in a legal system. Self-legislative will of Kant comes
as justication for such limitation. Uncurbed critical scrutiny is essential
for dismissal as well as for justication.
The General drift in Society in our age is that the troubled intellectual in
India today is being asked to choose between Freedom of Expression that
can lead to intellectual murder or a silence that can end in intellectual 24
suicide.
Anyone who can reach Wikipedia enters a digital haven of freedom of
expression. Curbs on free speech are growing tighter. Without the contest
of ideas the world is timid and ignorant. Free speech is under attack by
Governments, non-State actors and by some people and groups asserting
that they have right not to be offended. Repression by governments has
increased in several countries like Russia, China, Middle East
particularly after the overthrow of despots during the Arab spring.
In some cases non-State actors are enforcing censorship of assassination
as was done to Reporters in Mexico who investigated crime or corruption
were tortured and murdered. Secular bloggers in Bangladesh are hacked 25to death in the street. The offence of violating the groups such as ethnic
and religious groups and even people holding political beliefs being
subjective, the power to police it is both vast and arbitrary. It is
23A. Lakshminath and Mukund Sarda, “From Human Rights to Human Dignity: An Unending Story” Available at: http://bvpnlcpune.org/Article/FROM%20HUMAN%20RIGHTS%20TO%20HUMAN% 20DIGNITY.pdf (last visited on Sept. 12, 2016).24 Gopalkrishna Gandhi, “The General Drift of Society” The Hindu, Oct. 18, 2016.25 “Free Speech under Attack”, The Economist, June 4, 2016, Available at: http://www.economist.com/news/leaders/21699909-curbs-free-speech-are-growing- tighter-it-time-speak-out-under-attack (last visited on June 10, 2016).
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unfortunate that the University of California suggests that it is racist
“micro-aggression” to say that “America is a land of opportunity”. Hate
speech is another inroad into the freedom of expression. China locks up
campaigners for Tibetan independence for “inciting ethnic hatred”;
Saudi Arabia ogs blasphemers; Indians can be jailed for up to three
years for promoting disharmony “on grounds of religion, race, caste etc.
Germany and other 10 countries bar insults against their own heads of
State. In many countries free speech is lukewarm and conditional. A
group of Islamic countries are lobbying to make insulting religion a crime
under International Law.
Laws against hate speech are unworkable, subjective and widely abused.
Banning words or arguments which one group nds offensive does not
lead to social harmony. On the contrary it gives everyone an incentive to
take offence - a fact that opportunistic politicians with caste based
support are quick to exploit as is happening in India in recent times. It’s
better not to try silence views with which you disagree and answer all
objectionable speech with more speech which alone ensures greater
freedom.
Many countries have introduced “defence of terrorism” etc., recently that
are often very broad and vague. Such laws are handy tools for those in
power to harass their enemies and particularly become dangerous when
cynical politicians who rely on votes from certain group often nd it
useful to demand the punishment of someone who has allegedly insulted
its members before elections as it has happened in the case of Ashish
Nandi, an intellectual who made a subtle point at a literary festival in
2013 where local politicians preferred outrage and he was charged under 26Prevention of Atrocities Act.
But ethnocentrism offers the best hope for pragmatic liberalism because
it redenes freedom as ‘interdependence’ and as constituent of
‘solidarity’. This idea of pragmatic or relative solidarity, Rorty uses as a
model with which to describe a non-foundational idea of human rights –
26 Supra note 19.
21
one that bears a striking resemblance to that advocated by the likes of 27Douzinas. One feels clearly the pull of contemporary anxieties
regarding the need to devise some kind of philosophy for the emergent
‘new world order’. Such a non-foundational human rights is human right
of consciousness, a response to hearing sad and sentimental stories rather
human right founded on moral knowledge or any other illusion. It is,
Rorty adds, a human right that might be Kantian in spirit, but which is 28Derridean in execution. What matters for pragmatists is devising ways
of diminishing human suffering and increasing human equality
increasing ability of all human children to start life with dignity.
In the ‘End of Human Rights’, Douzinas impressed the natural
progression from the politics of critical legal studies to the aesthetics of 29
post-modern legal thought. The problem with jurisprudential
conceptions of human rights, at least in the modernist tradition, is their
overzealous interest in ‘rights’ at the expense of the human. While the
identity, the social imaginary supports a social organization in which
human relationships will respect and promote the uniqueness of the
participants. The idea of a ‘human rights imaginary’ impresses the non-
essential nature of rights. Rights are merely instruments. What has
essence is humanity, the mutually determining relations of ‘self’ and
‘other’. The Derridian resonance is obvious, perhaps never more so when
Douzinas acknowledges that such a humanism must focus once again on
the nature of love and affection, ‘pity and friendship’ as political concepts
(eg., in cases of Iraq, Afghanistan, Syria, Libya, Yemen and recently 30abandoned Rohingya Muslims, Minorities etc.).
It is not necessary to believe in God to be a good person. In a way, the
traditional notion of God is outdated. One can be spiritual but not
religious… ”Some of the best people in history did not believe in God,
27 Ian Ward, Introduction to Critical Legal Theory 178(Cavendish Publishing, Great Britain, 2004).28 Ibid.29 Costas Douzinas, The End of Human Rights: Critical Thought at the Turn of the Century (Hart Publishing, United Kingdom, 2000).30 Supra note 23.
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22 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
while some of the worst deeds were committed in His name.” These are
not the words of a free-thinking rationalist that religious fanatics are 31gunning for. They are the words of Pope Francis. The backlash against
religion has been spearheaded by scientists like Richard Dawkins and
Sam Harris who have cogently and eloquently argued that far from being
a negation of moral codes and an ethical life, atheism as a form of
consciousness-raising is an afrmation of spiritual transcendence. When
the French philosopher-mathematician Pierre-Simon Laplace presented
a copy of his monumental work on the creation of the universe,
Mecanique Celeste, to Napoleon, the soldier-emperor asked, why there 32
was no mention of God in the book. Laplace replied “I had no need of
that hypothesis.” Is it time we outgrew that ‘needless hypothesis’? Those
who say it is, can do so with the blessing of Pope Francis. More than a
century after Nietzsche proclaimed his demise, is humankind beginning
to feel that – like an adolescent who outgrows childish clothes – we have
outgrown the psychological, emotional and spiritual need of God?
J. S. Mill made three main arguments on freedom of speech: the argument
from Truth, the argument from Democracy, and the argument from
Autonomy or Self-Expression. John Stuart Mill’s celebrated study On
Liberty also sustained with the traditional liberal arguments on the 33benets of freedom of speech and the press on the breakthrough of truth.
Mill extended the liberal tradition commenced by Milton and Locke
ideas in the course of a broader notion of freedom of the press. Wellington
states that freedom of the press derived from his concept of individual
liberty when Mill illustrated ‘liberty of thought, from which it is 34impossible to separate the cognate liberty of speaking and writing’. Mill
pursued the track of Milton and had an immense inuence on the
deliberation on press freedom. However, it was criticised that Milton’s
31 “Pope Francis said Belief in God is Not Necessary to be a Good Person” Available at: http://www.snopes.com/politics/quotes/popeatheist.asp (last visited on July 10, 2016).32 Jug Suraiya “God as a Needless Hypothesis”, Available at: http://new.modernrationalist.com/2015/10/god-as-a-needless-hypothesis/ (Last visited on June 12, 2016).33 Supra note 1.34 Ibid.
23
views in favour of freedom of press from state or any other structure to
manage were based on the idea that censorship of ideas inevitably
resulted in a loss of an element of truth. Kathleen M. Sullivan stated that
speech is embodied in a kind of ideological hierarchy in which
mainstream ideas held widely at any given time by majorities or the
socially powerful predominate over the systematically subordinated 35voices of dissent. Thus, protecting speech by dissidents and dissenters
from regulation serves to equalize the relative opportunities.
The freedom of expression is considered as an integral part of a
democratic regime, i.e., one based on some form of institutional
arrangements designed to ensure signicant responsiveness of
government to the wishes of the governed. Members of the public in
general, be the infants or convicts without the vote, or without a right to
free expression, have an interest in the prosperity of democracy, hence, its
existence is, in part, the existence of the right to free public political
expression. The dilemma arises as to what level are there general
principles of freedom of expression, and to what amount is freedom of
expression category-dependent? It is stated that interference by
government to discontinue the publication of what it regards as a false or
misleading view seems contrary to freedom of expression whether the
view concerns anything such as politics, religion, sex, health or the
relative desirability of two kinds of automobile. Freedom of expression,
as a philosophical crisis, is an example of a more general crisis about the
nature and status of rights is to be tested. The interests with which
freedom of expression is concerned especially deals with the interests
that are the basis of special concern with expression.
There are three important justications for freedom of expression:-
1) It helps in sighting of truth by open discussion. That is to say, it
helps out in the detection of truth.
2) Free speech is a phase of self- realization and progress. Freedom of
expression is a central part of each individual’s right to self-
35 Kathleen M. Sullivan, “Two Concepts of Freedom of Speech” 124 Har. LR 143 (2010).
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24 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
advancement and self-fulllment.
3) Freedom of expression shields the right of all citizens to identify
with political issues so that they can partake in better working of
democracy. Freedom of speech therefore forties the competence
of an individual in taking part in decision-making.
III Media
The media plays a critical role in stimulating debate about important
issues, presenting facts and reporting news, uncovering corruption and
misconduct and providing a vehicle for diverse perspectives. Therefore,
it) is) considered as a) lynchpin) of) democracy. This freedom carries
with it the right to receive and communicate ideas orally or written
through any medium. Regarding the justication for press freedom, it is
observed by Jennifer Whitten-Woodring that free media will act as a 36
watchdog over the government. Speech serves as a central means of
potentially cooperative and presumptively nonviolent human
interaction. It generates inuence and commune. Press and the electronic
media have obligations different from those that pertain to individuals
and the freedom of speech with regard to individual may have an
objective such as personal development or promotion of autonomous
decision making. Such an objective has no direct relevance to press.
Think hard, work harder. If you dream of making a difference to the lives
of the underprivileged, can retain your cool under stress, are willing to be
non-judgmental and are amiable with different kinds of people, then free
press is an option to explore. “one world is a product of journalism”.
Today the stress is not only on information but ‘credible’ information.
The onus is much more on broadcast journalist. The right of free
expression, once the province of intellectuals, now becomes a matter of
concern to all who favour socio-economic advances like adequate
education, social justice and access to the news media. Freedom of
expression is no longer a political nicety but a precondition for social
36 Jennifer Whitten-Woodring, “Watchdog or Lapdog? Media Freedom, Regime Type, Government Respect for Human Rights” 53 ISQ 595 (2009).
25
competitiveness. This lays down the foundation for an unusual political
condition of the future of intellectuals, scientists, promoters of social
justice and advanced managers of power, all of whom will now nd that
their interest depends on revolutionising the education system, widening
the access of the entire population to computers and other news media,
and protecting even extending freedom of expression. Such a coalition is
the best guarantee of both intellectual and social advances in the steconomics of 21 Century. For Marx freedom was the recognition of
stnecessity. 21 Century social structures can be built on media’s
commitment to social justice. Necessity is the mother of such
commitment of a free and fearless media to secure the ends of social
justice and liberty.
The print and electronic media are essential ingredients of democratic
dialogue. They are participants and not referees in the realisation of
constitutional ideals and aspirations. They need constant feedback. Their
myopia amuses. Their size worries. Their errors hurt. Their arrogance
angers. Like other institutions they profess ideals that exceed their very
human capacities. Gwynne Dyer while writing on Free to Lie laments 37that India is one of ve most ignorant countries in the world. He further
states that in the century and a half when there have been free mass media
(and now social media as well), nobody has come up with a solution for
this problem. “Free” includes free to make mistakes, and free to distort
facts and tell outright lies. Are the media just pandering to existing
popular fears, or are they actually creating them? The unsatisfactory but
inevitable answer is: a bit of both.
IV Free expression and social responsibility
Now a days, journalism persuades journalists and newspaper
entrepreneurs to reconsider accepted ideas of newsworthiness, editorial
policy, and professionalism. Broadcasters’ should respect the public’s
right in broadcasting ‘to receive suitable access to social, political,
37 Gwynne Dyer, “Free to Lie”, The Telegraph, Available at: http://www.telegraphindia.com/1160808/jsp/opinion/story_101143.jsp#.WEfOedR97Dc (Last visited on Aug.8, 2016).
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26 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
aesthetic, moral and other ideas and experiences’. This works on fairness
regulation, that the public interest requires opportunities for expression
of contrasting viewpoints on issues of public importance, dates back
more than half a century. Under this, the broadcasters retain discretion to
“decide what issues are ‘important,’ how ‘fully’ to cover them, and what
format, time and style of coverage are ‘appropriate’. This poses the most
potent threat to guarantees of free speech and press. Fairness regulation at
its constitutional worst, therefore, creates gradations of speaking rights
and restricts the speech of some members of society to magnify the
relative voice of others.
Whether anonymity should come under the purview of free speech and
expression? There are several reasons for placing anonymous political
advertising within the category of the press rather than speech First, as a
matter of technological necessity, during the founding era anonymity was
predominantly a feature of the press rather than of speech. In US, press
freedom protected commercial, scientic, artistic, and religious writings
every bit as much as it protected political writings, however, the legal
doctrine of freedom of the press was never unlimited. There is
widespread recognition that the press could be abused, and that the law
should prescribe remedies for abuse. Thus, an author, and sometimes a
printer, could face unpleasant legal consequences if responsible for
breach of parliamentary privilege, defamation, blasphemy, obscenity,
perjury, sedition, or treason. Whether anonymity is protected should not
depend on a court’s calculus of whether disclosure would suppress free
expression in a particular case. The First Amendment of US Constitution
protects an author’s privacy for its own sake.
Internet allows for new means of communication and thus tracking a
user’s internet activity seems intrusive because companies can exploit 38
intimate information. The example is that of cookies, that are
commonplace today because they can ‘remember’ log-in information,
personal preferences, and can be used for security purposes. But cookies
38 Richard M. Marsh Jr, “Legislation for Effective Self-Regulation: A New Approach to Protecting Personal Privacy on the Internet” 15 MT&TLR 543 (2009).
27
are capable of much more: they can store, and later transmit, personally
identiable or sensitive information. This data could include an
individual’s name, credit card number, health condition, social security
number, or lifestyle preference. Cookies are, by design choice and not by
coding constraints, largely invisible to consumers and encrypted to be
unintelligible to any user wanting to know what the cookies are saying
about him or her. Thus these encroachments seem even more dangerous
because ISPs already have users’ billing information in their database and
could combine the data. It is all the more dangerous since smart phones
take up all net banking facilities. This sort of behavioral advertising
violate personal privacy and compromise personal autonomy because the
consumer has no idea how he has been categorized and may be induced to
act in ways he would not have chosen if he knew about his prole. To
resolve this dilemma, some scholars argue that privacy should be
enforced through civil litigation by creating a property right in personal
data or by using tort law to remedy harms from exploited information.
But it may be less effective than legislative and regulatory solutions in
protecting personal privacy. Self-regulation provides exibility and
commercial success but seems to suffer from a poor incentive structure
and inadequate enforcement. Legislation can provide enforcement and
mandate nation-wide policies in the current political atmosphere which
may get widespread support for a legislative remedy.
The defamation law apparently puts a ceiling on freedom of expression
and the law should reconcile defamation law and freedom of expression.
According to Sally Walker, any law which restricts freedom of 39expression should be made to satisfy three minimum standards:
1. The courts and the legislature, must be able to reconcile freedom of
speech with defamation. Recently there is demand that the law of
defamation needs a change;
2. The law should go no further than is indispensable to guard the
interests justifying its subsistence; and
39 Sally Walker, “Regulating the Media: Reputation, Truth and Privacy” 19 MULR 729(1994).
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28 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
3. The law should be adequately obvious that those who are involved
by it are procient to resolve what is and what is not allowable by the
law.
Cyberspace being the prospect of the information industry is a place
where everybody is meeting, regardless of gender, age, race, or
association. Since there is no regulatory body policing the Internet, the
extent to which an individual is capable of acting without restriction is a
mystery. Article 19 (1) (a) is a local provision in cyberspace, users all over
the world often pray to its talismanic force against those endeavouring to
hamper free and robust speech. The assumed needs of the budding
mercantile area of the Internet and therefore it is making on governments
is the furthermost menace to the active libertarian theory in cyberspace.
The Communications Decency Act, 1996, is one such hoofmarks that
may in the process of protecting individuals in cyberspace obliterate free
and vigorous speech. This shows that governments already have the
authority to standardize cyberspace that is coterminous with their
geographical boundaries. But, it is not clear that they can effectively
regulate that portion of cyberspace without denying their citizens its
benets. Therefore the need for today is a rule making, fact-nding,
adjudication, and enforcement process that is accepted as legitimate and
is enforceable both in cyberspace and in the real world. The major legal
issues in cyber world are on access, distribution, contract and tort. As
models of governance, three possible models for regulation exist: no
regulation, government regulation, and self-regulation. The alternative is
not between a tranquil state of no regulation, self-regulation, and
government regulation, but the blend of the three.
The unique nature of the cyberspace requires a uniform global system of
regulation should bar nation-states from enacting inconsistent national 40
legislation. Considering each in turn and comparing different forms of
rulemaking that are least restrictive, most decentralized, and cost
40 Tanya L. Yarbrough “Connecting the World: The Development of the Global Information Infrastructure”, Available at: http://www.repository.law.indiana.edu/ cgi/viewcontent.cgi?article=1272& context=fclj (Last visited on Sept. 12, 2016).
29
effective to those that are more centralized, restrictive, and cost
inefcient. Through this process, we reach at the third model - private
law, self-regulation, through a contract law paradigm which is best suited
to govern cyberspace. The contract law model is most frequently offered
as the governing paradigm for cyberspace. It is stated that for those
threats from which technology and individual proposal do not present
enough security, contract law or social enforcement methods endow with
a good basis for generating a law of cyberspace. The users therefore need
to submit their substantial rights during contract to government;
consequently, the contracts must be essentially just due to consensus ad
idem. Hence, the current vogue of shrink-wrapping contracts in
cyberspace must end. Contracting parties must take advantage of the
technological options in cyberspace that reduce the transaction costs of
negotiating contracts so that each contract represents the unique meeting
of the minds - or at least a meeting of the electronic agents. About dealing
with the dispute part it is stated that it should be resolved initially through
negotiation, mediation and arbitration.
Social media differs in several important respects from conventional
print or television ads, and even other websites. These distinctions bring
social media outside the commercial speech realm, and as such,
restrictions on their use will be more highly scrutinized than those on
advertising. Thus regulation necessarily will be exible, thereby
allowing the technology to reach its potential within legal framework. It
is a fact that Social media is not merely a marketing but is a human
connection. To the lawyers and attorneys it is said to be all the more
advantageous as it is virtually cost-free podium from which lawyers can
express, speak, comment on legal news, law rm issues, and experiences
in court. Attorneys can make contacts quickly, exchange information,
and collaborate across jurisdictional boundaries. Moreover, publically
commenting on the law requires that practitioners keep current with new
developments. Social media provides a valuable way to interact within
the community and build a network. For this reason social media is
quickly replacing alumni contacts as an important source of referrals.
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30 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
There lies the real signicance of social media.
Lawyers already operate in a highly-regulated environment, and there are
several standing ethics rules that could be construed as ambiguous as to
their applicability in the virtual world. Suddenly applying these rules to
social media use without further clarication could implicate due process
concerns. Ethics rules are drafted to govern the substance, not the
medium, of attorney behaviour. The rules should be clear that the
traditional behavioural restrictions apply equally to social media. Instead
of blatantly bringing in regulations, there should be criteria on posting
news on condentiality of information, duties to prospective clients,
responsibilities regarding non-lawyer assistants, advertising etc. This
approach presents the best balance between regulatory ends and
attorneys’ freedoms. It applies all the client protections already embodied
in the current rules to the social media forum. The social media has a
variety of benets that attorneys can use to improve their practice and
understanding of the law. These tools also give clients the ability to
access information about the profession that was previously difcult to
obtain. For all these reasons, any regulations placed on its use by lawyers
should be reasonable and better serve social media to the legal 41profession.
V Digital media
Social media being not simply the digital media, but the modern media,
is considered as the best medium for bonding your lost associations, good
opening to discover jobs, provides a podium of entertainment by posting
pictures, sharing jokes, also partaking relevant articles on various
aspects. With the proliferation of countless users and consumers, social
media has become a platform to express opinions to a wider audience,
ending the individual’s and society’s reliance on traditional media. With
information owing across networks and servers straddling several
41 Kellen A. Hade, “Not All Lawyers Are Antisocial: Social Media Regulation and the First Amendment” Available at: https://www.scribd.com/document/104341010/Not-All-Lawyers-Are-Antisocial-Social-Media-Regulation-and-the-First-Amendment (Last visited on Aug.8, 2016).
31
countries around the globe, there is a growing need to protect information
pertaining to personal and national security. Unlike in the real world,
where social etiquette and manners can sometimes seem restrictive and
limiting, people feel they have a greater sense of freedom of expression
and/or of speech when using online networks.
While traditional websites continue to exist, the robust and responsive
utilisation of the tools that social media offers has improved their efcacy 42and visibility. The law in this area is still relatively unsettled and
constantly changing, but some recent developments have created
intriguing precedent, and the application of existing legislation promises
to keep things interesting for the foreseeable future. Though the social
media has global media platforms, the applicable legal systems are
presently conned to national borders. If one is surng on these sites and
putting some personal details on it, there is a chance of misuse of
information also. There is also a fear of hacking, stalking and online
crime. There may be some people who are so much humourous; they may
download your posted photos. There is no guarantee of such activities.
Many people tend to go too far in sharing their lives and do not remember
that the very real consequences that can occur. Thus in order to overcome
these misuses in social networking sites, one should be aware about the
legal implications i.e., what laws are there to get protection, if any
misuses are occurred in social networking sites and what legal
obligations are there both for the user and the site.
The main areas when users can get themselves into difculty are through
the posting of defamatory content or contents that infringes the
intellectual property rights of someone. Since no statutory immunity
exists to shield users, the standard laws pertaining to defamation and
infringement apply. Likewise, if a user is found to have posted
defamatory contents, the user will be liable, even if the sites can escape
42 Jessica Bosari, “The Developing Role of Social Media in the Modern Business World”, Available at: http://www.forbes.com/sites/moneywisewomen/2012/08/08/ the-developing-role-of-social-media-in-the-modern-business-world/#559165b74189 (Last visited on July 10, 2016).
Is Expression Free?
32 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
liability unders. 230 of Communication Decency Act and s. 79 of
Information Technology (Amendment Act), 2008. Similarly, if a user
posts materials infringes on another’s copyright, the user will face
liability for the infringement. Several of the most prominent cases
regarding user’s liability for material posted on social networking sites
have dealt with students suffering criminal charges or adverse
consequences at their schools as a result of allegedly defamatory,
threatening or indecent messages posted on social networking sites.
Given the limited information Facebook provides and the absence of
meaningful choice with regard to certain processing operations, it is
highly questionable whether Facebook’s current approach satises these
requirements. It is opined by Brendan Van Alsenoy and other researchers
that Facebook combines data from an increasingly wide variety of
sources (eg., Instagram, Whatsapp etc.). By combining information from
these sources, Facebook gains a deeper and more detailed prole of its
users. Facebook only offers an opt-out system for its users in relation to
proling for third-party advertising purposes. The current practice does
not meet the requirements for legally valid consent. Likewise, Facebook
has not made any changes to their privacy policy as part of its 2015
model. Its existing default settings with regards to behavioural proling
and marketing, in real meaning ‘opt-out’ stay beyond challenge.
Facebook’s responsibilities as data controller exist independently of the
responsibilities of website operators. As a result, Facebook should design
its social plug-ins in a way which is privacy-friendly by default, so that
website operators are able to provide users with the convenience of social
plug-ins, but without unnecessarily exposing data to Facebook. Thus the
right to information, right of access, rights to object and erasure etc need
to be precisely recognized.
Three predominant ethical duties must be dened in relation to informal 43discovery of social media data. They are: (1) the duty to afrmatively
consider social media data when determining if claims or defenses are
43Agnieszka McPeak, “Social Media Snooping and Its Ethical Bounds” 46 Ariz. St. L.J. 845 (2014).
33
well-grounded in fact, or otherwise performing factual investigations; (2)
the duty to refrain from contacting represented parties or from engaging
in misleading or deceptive conduct to gain access to private social media
content; and (3) the duty to consult clients on their own social media
usage and to preserve evidence.
The ethical aspect even applies to what one writes in social media.
Lyrissa Barnett Lidsky examines ‘dangerous speech’ issues as occurring
around the world due to the handling of Facebook and various other 44social media sites. One such incident was an insulting tweet and
YouTube video ended up in a hostile audience to riot and murder (the
Terry Jones incident), and the other in which a blogger urged his
unidentied, anonymous audience to murder federal judges (the Hal 45
Turner incident). An assessment of these happenings discloses probable
harms with Free speech theory. How spectators react to provocation,
intimidation, or hostility expressions, are bewildered by the new reality
social media create since unmediated character of social media speech
also increases its potential for sparking violence. Apart from that, the
anonymity of many social media interactions also cultivates violent
behavior, and the rate of communications authorize provocative speech
to reach individual audience members at the point when they are most
vulnerable to engaging in violent action.
Dealing with Indian aspect, the Internet has made an unimaginable
impact on the fundamental right to freedom of speech and expression
guaranteed under Article 19(1)(a) of the Constitution of India. The
Internet democratizes article 19(1)(a). Sec. 66A of the Information
Technology Act penalises the misuse of internet device and the
government can interfere in that, from such misuse danger is ‘clear and
present’. In the recent past the misuse has caused 70 deaths and mass
migration of several people from North East from south India. Misuse of
internet created several law and order problems threatening social fabric
44 Lyrissa Barnett Lidsky, “Incendiary Speech and Social Media” Available at: http://scholarship.law.u.edu/cgi/viewcontent.cgi?article=1216&context=facultypub (last visited on Aug.8, 2016).45 Ibid.
Is Expression Free?
34 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
and national security. The government has justied in seeking the
provision as a reasonable restriction on freedom of expression under 46article 19 (1) (a). The Supreme Court, however, in Shreya’s case
invalidated sec. 66A of the IT Act, though on different grounds.
The ‘clear and present danger test’, as stated by Holmes, “served to
indicate the importance of freedom of speech to a free society but also to
emphasize that its exercise must be compatible with the preservation of
other freedoms essential to a democracy and guaranteed by our 47Constitution. When those other attributes of a democracy are threatened
by speech, the Constitution does not deny power to the [government] to
curb it.” As characterized by Justice Brandies in a later case, the Holmes
test “is a rule of reason. Correctly applied, it will preserve the right of free
speech both from suppression by tyrannous, well-meaning majorities and
from abuse by irresponsible, fanatical minorities.”With information
owing across networks and servers straddling several countries around
the globe, there is a growing need to protect information pertaining to
personal and national security as they have a greater sense of freedom of
expression and/or of speech when using online networks.
The distinctive nature of the new media technologies, principally the
features that fuse the technologies under a sole umbrella can be summed
up by the 5 C’s: communication, collaboration, community, creativity,
and convergence. Despite the easy entry into this eld, many users of
social media are not aware of the enormous legal risks involved in their
online activities. These risks include violating state and federal
advertising laws, copyright laws, privacy laws, securities laws,
trademark laws, and tort laws such as defamation. Many people engaged
in social media marketing are regularly posting on websites belonging to
others without understanding how such a website’s terms of use could
affect them. In addition to liability for their own posts, there is also the
potential to become liable for third-party content posted to their own
46 Shreya Singhal v. Union of India, AIR 2015 SC 1523.47 Ronald K.L. Collins (ed.), The Fundamental Holmes: A Free Speech Chronicle and Reader 359(Cambridge University Press, 2010).
35
sites. The jurisdictional issues alone are mind-boggling
Data protection and privacy laws aim to achieve a fair balance between
the privacy rights of the individuals and the interests of data controllers
such as banks, hospitals, e-mail service providers. These laws search for
tackling the challenges to privacy caused by collecting, storing and
transmitting data using new equipment. The ample range in types of data
transfers across international borders that occur daily might give rise to
different problems that require different solutions at different times. In
the end, an approach to regulation based on careful attention to
technology and business developments, coupled with genuine respect for
cultural differences, is most likely to produce satisfactory, workable
international solutions. Inaction, however, is not an option as the conict
has already manifested itself in the tensions that exist between the
approach to regulation taken in the European Union and the approach
taken in the United States.
As the greatest mode of forming associations through Facebook and
other social networking websites, the Internet revolutionizes the
fundamental right to freedom of forming associations under article
19(1)(c) of the Constitution. But the necessity has arisen so as to ask
‘whether social media needs regulation’? There is no need of any specic
regulations as they can be found in reasonable restrictions mentioned in
article 19 (2) and (4). The jurisprudence of the court should strike a
balance between demosprudence and legisprudence.
VI Conclusion
There is no yardstick to determine which are moral and which are
immoral. H.L.A. Hart and Lord Devlin’s debate was concluded with the
shared morality which we require in society for balancing democracy as 48
well as morality. It has to be left to Jurisprudence of the court as it is
more prudent to determine moral standards than the legisprudence.
New communication convergence technology is being misused and
48 Ronald M. Dworkin, “Lord Devlin and the Enforcement of Morals”, Available at: http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4612&context= ss_papers (Last visited on June 5, 2016).
Is Expression Free?
36 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
abused by criminals in cyberspace. Cyber pornography, online child
pornography, cyber spamming, cyber hacking, cyber fraud, cyber
terrorism, owing of viruses, phishing etc. are cybercrimes. These are
proliferating at a lightening speed in the age of information technology
uprising. There is a need to adopt uniform legal system and co-operation
worldwide. There is need to adopt specic laws on jurisdiction at
international level. To test online transaction or transmission Judiciary
may use the community standards of the place where it is originated or the
place where it is downloaded. There is need of international co-operation
and active international Cyber crime cell. Spam is horrible and
threatening act. We need anti-spam law.
Cyber cafes, ISPs and parents must use lter software, timer clock of
internet protocol and rewall to prevent minors from viewing and using
objectionable websites and images. Cyber cafes and ISPs must demand
photo identity cards, and use biometric ltering machine to identify every
user and to help investigations in realistic sense. There is a need to spread
awareness among minors, parents, adults and institutions about misuse
and abuse of new technology and effects on society. About social
networking e-mail etc. If the contents are transmitted in private between
two or more consenting adults without causing any harm to society or
maintaining decency and morality then it should be allowed as freedom
of speech and expression in the age of communication convergence
technology.
The fact that the law in India is yet to attain clarity in relation to the
liability of intermediaries is true. Certain changes are required to be made
to the law as well as additional changes must be bought in the system of
working of the legal institutions as well as intermediaries. It is essential to
balance the interests of ISPs and the public at large. This can be done by
making laws imposing minimum mandatory fair obligations on ISPs by
providing immunity for their actions taken in good faith. It is essential to
ensure collective efforts of all legal enforcement authorities involving
both public as well as private players including ISPs based on
cooperative models.
37
Cyber security expert Ms. Hathaway recently stated that it will be very
difcult to get a common view of the (cyber security) law across 196
countries; because there are different approaches, cultures, history on
how we think about freedom of speech; the right to privacy and freedom 49
& security.” No country should demand that the technology is
weakened. Stating that “crimes happen too fast” on the internet,
Hathaway said “by denition international cooperation is too slow at the
speed of the internet”. “We should be able to work on machine speed on
some of these things. And, not at the speed of the bureaucracy.”
The last century, despite its extra-ordinary scientic and technological
achievements has been one of the most lethal in human rights
performance. A disturbing features of the contemporary times are the
revival of religious fanatism and the abuse of Advanced Communication
Technology which are posing a major threat to the humanity and
individual freedoms. It is therefore necessary to reinvent, to rearticulate
the foundational principles to save the world from holocaust. It may not
be out of place to reinvent the principles of Vedanta of Hindu philosophy
which suggest some fundamental and foundational principles for
preservation and ensuring human dignity while asserting or guaranteeing
or enforcing freedom of speech and expression by injecting the following
universal truths into the human minds.
i) ‘Amrutasya Sishu’- children of immortality.
ii) ‘Vasudhaiva Kutumbakam’ – The entire world is a family
iii)‘Sarve Janah Sukhinobhavantuh’ – Welfare of all beings.
Today, when narrow domestic walls and general drift in society are
emerging all over the globe, dividing people into ever smaller groups
engaged in hating and ghting each other and encouraging intellectual
murder or suicide, Rabindranath Tagore’s voice must resonate on the th 50
occasion of his 75 death anniversary:
49 Abhishek Law, “Difcult to Get Common View on Cyber Security” The Hindu: Business Line, Oct. 23, 2013.50 Rabindranath Tagore, “Where the Mind is Without Fear”, Available at: https://allpoetry.com/Where-The-Mind-Is-Without-Fear (Last visited on Aug. 8, 2016).
Is Expression Free?
38 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
Where the world has not been broken
up into fragments by narrow domestic walls.
Where tireless striving stretches its arms towards perfection
into that heaven of freedom, my Father, let my country awake.
People keep hurting us, intentionally or not, by words or deeds. Our
world is populated by a multitude of opposing mindsets. They clash and
hurt each other but also have an inbuilt mechanism to manage hurt. It we
stop expressing our opinions because someone will be hurt by them, if we
curb the growth of scientic knowledge, if we forcibly try to stall the
march of civilization, we will end up inhabiting a stagnant quagmire
instead of basking in a raging cascade of knowledge and plenitude.
Freedom of speech is the freedom to say something someone else might
not like to hear. Those who never hurt another’s sentiments to do not need
freedom of speech. A state that chooses to side with those who seek to
oppose such freedoms, instead of ensuring that they are brought to book,
will be responsible for its own eventual annihilation. As Taslima Nasrin
emphasizes this crisis is not India’s alone; it is being felt across the world.
It’s not so much a battle between two faiths but a war between two
opposing worldviews – the secular and the fundamentalist, the
progressive and the prejudiced, the rational and the superstitious.
39
FAIR USE FOR EDUCATIONAL PURPOSE: AN ANALYSIS
* **S. Sivakumar and Lisa P Lukose
Abstract
This article analyses the judgement in The Chancellor, Masters & Scholars of The University
of Oxford v. Rameshwari Photocopy Services. It also tries to examine the difference between
fair dealing and fair use. The article scrutinises what is the extent and scope of reproduction
under section 52 (1) (i) as an exception in Indian copyright law which can be used as fair use
defence for educational purposes.
I Introduction
LAW OF copyright aims at protecting original works of authors.
Copyright law ensures that an author or creator of a work derives benets
from his product of creativity. In other words, copyright law forbids
unauthorized use of copyrighted contents. Copyright system is very
much needed to encourage the creators to engage into creative activity.
However, there are limitations and exceptions in the copyright system
itself to ensure dissemination of knowledge and access to creative works.
Doctrine of fair use is one among such exceptions to exclusive right of the
copyrighted content owners. In this article, the authors critically examine
the decision given by the Delhi High Court in Rameshwari Photocopy
Services case (which is popularly known as Delhi University Photocopy
case) with reference to fair use for educational purposes.
II Brief facts
The ve plaintiffs publishers: Oxford University Press, Cambridge
University Press, United Kingdom, Cambridge University Press India
Pvt. Ltd., Taylor & Francis Group, U.K. and, Taylor & Francis Books
India Pvt. Ltd., instituted a suit for the relief of permanent injunction
restraining the two defendants - Rameshwari Photocopy Service
(carrying on business from Delhi School of Economic, University of
Delhi) and the University of Delhi from infringing the copyright of the
plaintiffs in their publications by photocopying, reproduction and
distribution of copies. The plaintiff had complained that at least four
* Member, Law Commission of India.* Corresponding author, Associate Professor, GGS Indraprastha University, Delhi.
Fair Use For Educational Purpose: An Analysis
40 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
course packs were sold by the defendant based on syllabi issued by the
Delhi University for its students containing photocopies of portions of
plaintiffs’ publication varying from 6 to 65 pages. It was also alleged that
the faculty teaching at the defendant University is recommending the
students to purchase these course packs instead of legitimate copies of
plaintiffs’ publications. The libraries of the defendant University are
issuing books published by the plaintiffs stocked in the said libraries to
the defendant shop for photocopying to prepare the said course packs.
The Commissioner appointed by the Court found that as many as 45
course packs containing photocopied articles comprising of 1 to 22
copies of varying number of pages of the books and 8 books being
photocopied cover to cover.
The defendants on the other hand argued that the university does not
recommend the entire publication but only certain extracts; the students
are reluctant to buy the entire publication just for reading a particular
extract therein and cannot afford to buy 35 to 40 books prescribed in the
syllabi, and to ease the nancial burden on students, limited copies of the
majority of the titles prescribed in the syllabi are housed in the library.
These limited copies are insufcient to cater to the needs of the students
and the faculty and hence they photocopy the relevant extracts. In order to
save the original work from being damaged from repeated photocopy, the
faculty of DSE has compiled various master copies of books, the
photocopying shop is not commercially exploiting the author‘s copyright
but is giving copies to students at nominal rates of 40 paise per page to aid
their education and as such they acted in good faith within the meaning of
Section 76 of the Copyright Act, 1957. It was also contented that world
over universities permit students to copy limited pages from any work for
use in ‘research /teaching and for use in the classroom by a student or
teacher’ and this is recognised in India by sections 52(1)(a) & (i) of the
Copyright Act.
1 th Decided on 16 September, 2016 (CS(OS) 2439/2012, I.As. No. 14632/2012 (of the plaintiffs u/O 39 R-1&2 CPC), 430/2013 (of D-2 u/O 39 R-4 CPC) & 3455/2013 (of D-3 u/O 39 R-4 CPC).
41
III Judgment
The Delhi High Court while dismissing the suit in The Chancellor,
Masters & Scholars of The University of Oxford v. Rameshwari 1Photocopy Services held that ‘making of course pack as suggested
reading by photocopying of sections of various prescribed reference
books for the use of students does not violate the copyright of the
publishers’. The court considered this question as a question of law 2requiring no trial. The judgement also held that there is no copyright
3except as prescribed in the Act and Section 16 converts copyright from a 4natural or common law right to a statutory right.
Photocopying vis a vis the exclusive right of reproduction
Section 14 of the Indian Copyright Act, 1957 grants certain exclusive
rights on the copyright owner for the commercial exploitation of the
work. The right to reproduction is the exclusive right of the owner of the 5
literary work within the meaning of Section 14. Making photocopies of a
work amounts to reproduction. As per the court, section 14(a)(i)
constitutes right to reproduce literary work per se as copyright and
section 51(a)(i) constitutes such reproduction per se as infringement of
copyright and section 2(m) constitutes the copy so reproduced as
2 Para 2.3 S. 16: No copyright except as provided in this Act:- No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or condence.4 Para 28.5 S. 14. Meaning of copyright - For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:(a) in the case of a literary, dramatic or musical work, not being a computer programme,—(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;(ii) to issue copies of the work to the public not being copies already in circulation;(iii) to perform the work in public, or communicate it to the public;(iv) to make any cinematograph lm or sound recording in respect of the work;(v) to make any translation of the work;(vi) to make any adaptation of the work;(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specied in relation to the work in sub-clauses (i) to (vi)...
Fair Use For Educational Purpose: An Analysis
42 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
infringing copy. Photocopies made in violation of section 14 constitute
infringing copy within the meaning of section 2(m) unless such act is
listed under Section 52 as an act not constituting infringement. The
judgement holds that if any provision of the Act permits any person other
than the owner to reproduce any work or substantial part thereof, such 6reproduction will not amount to infringement. It is worth mentioning
that in the realm of copyright law, author and owner are two different 7concepts though authorship and ownership may vest on the same person.
The court also took note of the difference in the language in the statute –
between sections 52(1)(i) and 52(1)(j); while section 52(1)(i) using the
words teacher and pupil, section 52(1)(j) uses the words staff and
students of educational institution. In the opinion of the court, the scope
and ambit of section 52(1)(i) cannot be so restricted. The court could not
nd reason to interpret section 52(1)(i) as providing for an individual 8teacher and an individual pupil. The court took note of the fact that in
section 32(6) explanation (d), The phrase purposes of teaching, research
or scholarship‘ (though for the purpose of that Section only), has been
dened as including instructional activity at all levels in educational
institutions, including Schools, Colleges, Universities and tutorial
institutions and all other types of organized educational activity. As per
the court, ‘instruction‘is not conned to educational institutions or
establishments but it embraces any form of instruction wheresoever and 9
not necessarily in educational institutions. The court, by marking the 6 Para 27.7 Authorship and ownership are, in relation to copyright, two distinct concepts, each of which attracts its own peculiar rights: the author having moral rights, and the owner of the copyright possessing economic rights. Sometimes, the author of a work will also be the owner of the copyright in the work, but this is not always so. Many works have separate authors and owners as far as copyright is concerned. Ownership ows from authorship. The person who makes the work is normally the rst owner of the copyright in the work, provided that he has not created the work in the course of employment. 8The court relied on S.P. Gupta v. President of India, 1981 Supp (1) SCC 87 and The State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601 wherein it was held that interpretation of every statutory provision must keep pace with the changing concepts and it must, to the extent to which its language permits, or rather does not prohibit, suffer adjustments so as to accord with the requirements of fast growing society.9 Para 56.
43
10difference between the clauses (i) and (h) of section 52 (1) held thus:
The use of the word publication‘ in Section 52(1)(h) as distinct from the
word reproduction‘ in Section 52(1)(i) further brings out the difference
between the two words. While the word publication‘ used in Section
52(1)(h) connotes making available to the public for the rst time‘ or by
way of further editions‘ or e-print‘ i.e. the activity in which plaintiffs are
involved, the word reproduction‘ used in Section 52(1)(i) entails ‘for
copying’ for limited use, i.e., for an individual or for a class of students
being taught together by a teacher.
Copies not being already in circulation
Section 14 confers on the owner, inter alia, the right to issue copies of the
work to the public not being copies already in circulation. The
Explanation to section 14 provides that for the purpose of section 14, a
copy which has been sold once shall be deemed to be a copy already in
circulation. The plaintiffs’ books were purchased by the defendant and
hence by virtue of the said Explanation, these are deemed to be a copy
already in circulation within the meaning of section 14(a)(ii) and the
exclusive right to issue the same to the public does not vest in the owner
of the copyright. By applying the principle of exhaustion the court hold
that: “the principle of exhaustion… the genesis of libraries, not only of
Universities and other educational institutions but run and operated
otherwise and commercially also, and of the business of resale of 11books.”
According to the court, “if the words ― to issue copies of the work were
to be read also as ― making copies of the work, the same would
tantamount to the owner of copyright after having once sold a copy
thereof, being left with no right to restrain the person who has purchased
the copy from making further copies thereof and selling the same.... Once
the acts listed in section 52 are declared as not constituting infringement
of copyright and the reproduction of work resulting from such acts as not
10 Para 57.11 Para 35.
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44 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
constituting infringing copy, it follows that the exclusive right to do the
acts mentioned in section 52 has not been included by the legislature in
the denition in section 14; of copyright, once that is so, the doing of such
act cannot be infringement under section 51 and the question of taking the 12
same out by way of proviso or exception does not arise”.
Fair use vis a vis fair dealing
Promotion of creativity through sufcient protection is the basic
rationale of copyright system. Copyright law also cares for dissemination
of knowledge and access to copyrighted material through the doctrine of
fair dealing or fair use. The copyright law of UK uses the term fair deal
and the USA copyright law adopts fair use. Indian copyright statute uses
the term ‘fair dealing’ following the UK model. Under fair use system,
the list of purposes or types of use is merely illustrative where as in fair
dealing system, listed purposes are statutorily embedded and fair dealing
defence can be allowed only if the use is for one of the prescribed
purposes. Article 13 of the TRIPS Agreement states that members shall
conne limitations or exceptions to exclusive rights to certain special
cases which do not conict with a normal exploitation of the work and do
not unreasonably prejudice the legitimate interests of the right holder.
The fair dealing doctrine is essential for research and academic purpose,
private study and for dissemination of knowledge. The term fair dealing
is nowhere dened in the Indian Copyright Act; hence, determination of
the scope of fair dealing is to be done in a case to case basis, which is
always a difcult task for the judiciary. The judiciary in India and abroad
have developed some tests and doctrines to determine whether a
particular dispute is a case of infringement or an instance of fair dealing.
Thus, the copyright Act seeks to maintain a balance between the interest
of the owner of the copyright in protecting his works (fairness theory) on
the one hand and the interest of the public to have access to the works
(welfare theory) on the other and these two are competing rights between
which a balance has to be stuck. The central idea behind this doctrine is
to prevent the stagnation of the growth of creativity.12 Paras 36 and 41.
45
Reproduction under section 52(1)(i)
Section 52(1)(i) of the Copyright Act treats as fair dealing “the
reproduction of any work (i) by a teacher or a pupil in the course of
instruction; or (ii) as part of the questions to be answered in an exam; or
(ii) in answers to such question. The present case centres around this
section. It is to be noted that this sub section does not contain the term
‘educational institution’ which is present in section 52 (1) (j). Section 52
(1) (j) uses terms such as “staff and students of educational institution”
where as section 52(1)(i) uses terms such as “teacher and pupil in the
course of instruction.” On analysing the difference in language between
these sections, the judgment reads that “there is no reason to interpret
section 52(1)(i) as providing for an individual teacher and an individual
pupil and which, neither at the time of inclusion thereof in the statute nor 13now exists in the society”.
The word instruction is not dened in the Act. Thus, the use of the word
instruction preceded with the words in the course of would mean in the 14course of instruction being imparted and received. While answering the
question when does the imparting of instruction begin and when does it
end, it was held that it begins prior to the classroom and ends much after
the classroom interface between the teacher and pupil has ended. Hence:
…the words in the course of instruction within the meaning of Section
52(1)(i) supra would include reproduction of any work while the process
of imparting instruction by the teacher and receiving instruction by the
pupil continues i.e. during the entire academic session for which the pupil
is under the tutelage of the teacher and that imparting and receiving of
instruction is not limited to personal interface between teacher and pupil
but is a process commencing from the teacher readying herself/himself
for imparting instruction, setting syllabus, prescribing text books,
readings and ensuring, whether by interface in classroom/tutorials or
otherwise by holding tests from time to time or clarifying doubts of
students, that the pupil stands instructed in what he/she has approached
13 Para 55.14 Para 61.
Fair Use For Educational Purpose: An Analysis
46 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
the teacher to learn. Similarly the words ―in the course of instruction,
even if the word ―instruction have to be given the same meaning as
lecture‘, have to include within their ambit the prescription of syllabus
the preparation of which both the teacher and the pupil are required to do
before the lecture and the studies which the pupils are to do post lecture
and so that the teachers can reproduce the work as part of the question and
the pupils can answer the questions by reproducing the work, in an
examination. Resultantly, reproduction of any copyrighted work by the
teacher for the purpose of imparting instruction to the pupil as prescribed
in the syllabus during the academic year would be within the meaning of 15
Section 52 (1)(i) of the Act.
Though, the act of making of photocopies is reproduction of copyrighted
work, it will not constitute infringement if the same is by a teacher or a
pupil in the course of instruction. The judgment also qualify as fair
dealing, if the students click photographs of each page of the portions of
the book required to be studied by him and to thereafter by connecting the
phone to the printer take print of the said photographs or to read directly
from the cell phone...”
IV Conclusion
It is true that “copyright is intended to increase and not to impede the
harvest of knowledge. It is intended to motivate the creative activity of
authors and inventors in order to benet the public”, then what is left for
the authors and owners? In the process of creation of a work, the
author/owner invests considerably. Can these aspects be ignored while
interpreting Section 52(1)(i) as a license for reproducing the whole
material or substantial portion thereof. University has never directly
issued books to the photocopy shop for reproduction; however, the
Commissioner appointed by the Court had reported that 8 books were
found being photocopied cover to cover.
Does Section 52 in its spirit and letter guarantee the right of reproduction
of the whole material, an aspect which the court avoided to address? Is
15 Para 72.
47
that the objective of fair dealing? Or fair dealing covers only reasonable
excerpts? If the legislature had intended to give such a wide interpretation
to the word ‘in the course of instruction’ as the judgement did now, why
the sub clauses (ii) and (iii) of Section 52(1)(i) would specify “as part of 16
the questions to be answered in an exam or in answers to such question”.
These also should be automatically covered. Why legislature had _dropped the words from the draft “in the course of preparation for
_instruction” in the nal amendment Act? One can easily relate a teacher
and a university. Is it justied to equate with the same vigour the
photocopy shop run in the university within the expression, ‘in the course
of instruction’? Does the fair use provide blanket immunity for multiple
copies for classroom use and all activities as covered by the judgement as
part of ‘in the course of instruction”? Does the judgement facilitate the
University through photocopy or similar device to meet the demand of all
students by purchasing a single book? As per the judgement no limitation
should be placed on photocopy if it is in the course of instruction. When 17the university is entitled to free photocopy of 3000 pages every month
can the possibility of commercial interest be overruled? In that context
does it comply with article 13 of TRIPS Agreement?
The judgment paves way for enhancing access to education in India. It
heavily favours the teaching and learning purposes. The judgment will
certainly have wide reaching impact in the academic circles and in the
copyright industry. When the photocopy shops continues to photocopy
the books, the question remains is that whether the court was successful
in balancing the competing interests of the academic community and the
authors/owners. The students can never be expected to buy all the books
and fair use should be allowed; however there should be no legal
ambiguity as to how much can be reproduced - is it from cover to cover or
a reasonable extract.
16 Also see, S Sivakumar and Lisa P Lukose, “On Right to Photocopy” 11
(The Hindu, 26 September, 2016)17 Para 4.
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48 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
LIABILITY OF THE VEHICLE INSURER IN THE CASES OF
FAKE AND INAPPROPRIATE DRIVING LICENSES
Rajesh Kumar*
Abstract
Use of fake and inpparopriate driving is one of the worst reality faced by our legal system
everday. In many cases, most of the drivers are not using the driving licenses or using the fake
and inappropriate driving licenses. This article focusses on the Motor Vehicle Act and its
loopholes in the current rising number cases. The author opines that in the event of a motor
accident, the regulatory framework of issuance of commercial and heavy vehicle license is
lengthy, technical and cumbersome, leaving no choice for poor people except either adhering
to corrupt practices or to use fake driving licenses . This issue becomes more important as it is
taken as a main defense by the insurance company for denying the claims. In most of the
cases, this plea has been taken, which has forced the supreme court to adopt a liberal
approach with respect to such fake or inappropriate driving licenses. In various leading
cases, the Supreme Court has tried to develop a balanced approach while dealing with such
problems by developing the jurisprudence of wilful default leading to a fundamental breach
of conditions of the insurance contract . Thus, if the insurance company succeeds in proving
wilful default leading to the fundamental breach , then it has a right to recover the
compensation money from the owner of the vehicle or the driver. Recently, introduced Motor
Vehciles Amendment Bill, 2016 has provided the important changes with respect to check
the system of fake and inappropariate of driving licences . However, with respect to liability
of insurer,only few changes has been provided.
I Background
FAKE AND inappropriate driving licences are important grounds of
defence taken by the insurance companies for negating liability under ,
motor accident claims. In India, due to lack of aproper system of
verication, a driver of a vehicle can manage with thefake driving licence 1of other states. Motor vehicle departments in the different states issues
different type of driving licences and their system are not
interconnected.Further, rules and practice for issuing commercial driving
licences for heavy vehicles are cumbersome, tough and lengthy. It forces
drivers of commercial vehicles to manage fake driving licences. Further,
under the strict legal framework of Motor Vehicle Act, 1988, a person
* Assistant Professor, NUSRL, Ranchi.1 G. S Karkara, Assessment of Compensation in Accidents under Motor Vehicles Act,
nd 1988 (2 edn., Delhi Law House, 2013).
49
who has the driving license of the motorcycle cannot drive a car. A person
having driving licence of Light Motor Vehicle (LMV) cannot drive a
Heavy Motor Vehicle (HMV). However, in reality, more than one-fourth
of drivers on Indian roads are driving the heavy vehicles with LMV
driving licences. In legal terms, such drivers are having inappropriate
driving licences. Contract of insurance is the contract of utmost good
faith and specic to subject covered. Further, MV Act clearly and
particularly excludes liability of insurances companies on the ground of
fake and inappropriate driving licence. Courts have tried their best to
interpret the law considering the scope of motor accidents claim as
benecial legislation. However, this issue has been raised again and
again in many cases as in most of the cases; this ground is available to the
Insurance companies.
II Regulatory framework
Under the MV Act, ‘motor vehicle’ is dened as any mechanically
propelled vehicle adapted for use upon roads whether the power of
propulsion is transmitted thereto from an external or internal source and
includes a chassis to which a body has not been attached and a trailer , but
does not include a vehicle running upon xed rails or a vehicle of a
special type adapted for use only in a factory or in any other enclosed
premises or a vehicle having less than four wheels tted with engine 2capacity of not exceeding twenty-ve cubic centimetres”.
Consequently, the denition has been comprehensive to give effect the
benecial legislation
Sec. 3 of the MV Act mandates the requirement of having a driving
licence. It says that “No person shall drive a motor vehicle in any public
place unless he holds an effective driving licence issued to him
authorising him to drive the vehicle; and no person shall so drive a
transport vehicle other than 7 a motor cab or motor cycle] hired for his
own use or rented under any scheme made under sub – sec. (2) of sec. 75 3
unless his driving licence specically entitles him so to do. However, the
2 See, Motor Vehcile Act, 1988, s. 2(28).3 Id. at s. 3(1).
Liability of The Vehicle Insurer in the Cases of Fake and Inappropriate Driving Licenses
50 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
conditions subject to which sub-section (1) shall not apply to a person
receiving instructions in driving a motor vehicle shall be such as may be 4prescribed by the Central Government.”
The owner of the vehicle is further expected to use the vehicle with
theappropriate driving licence. Sec. 5 of the MV Act says that “No owner
or person in charge of a motor vehicle shall cause or permit any person
who does not satisfy the provisions of sec. 3 and sec. 4 to drive the 5vehicle.”
With respect to fake driving licences, it is important to note that the
driving license issued by one state is valid and effective throughout 6India. Different states have different procedures and format for the
driving licences. They are not interconnected by any methods. For the
enforcement agencies, which happen to be trafc police or local police at
the spot, it is very difcult to verify the authenticity of driving licences.
Most of the states have not adopted till date the computerised driving
licences. This is the important reason for theuse of fake driving licences
by drivers of heavy commercial vehicles.
Licences issued under this act have to be specic mentioning the motor
vehicle which can be used by the driver. Sec. 10 of this act specically
provides for the Form and contents of licences to drive. It says that “every
learner’s licence and driving licence, except a driving licence issued
under sec. 18, shall be in such form and shall contain such information as 7may be prescribed by the central government.”
It further provides that “ A learner’s licence or as the case may be, driving
licence shall also be expressed as entitling the holder to drive a motor
vehicle of one or more of the following classes, namely:-
(a) Motor cycle without gear;
(b) Motor cycle with gear;
4 Id. at s. 3(2).5 Id. at s. 5.6 Id. at s. 13.7 Ibid, s. 10(1).
51
(c) Invalid carriage;
(d) Light motor vehicle;
(e) Transport vehicle; (i) road-roller; (ii) motor vehicle of a specied 8description.
Provisions have also given for disqualication, suspension, cancellation
under sec. 19, sec. 20, sec. 21 and sec. 22 of the MV Act.
So, MV Act, very clearly classies the type of motor vehicles, which can
be used by specic licences issued. Motor vehicles are of different types.
Broadly, it may be for carrying persons or goods. These are goods 9
carrying vehicles.
(i) Motor cycle with side car for carrying goods.
(ii) Motor cycle with trailer to carry goods.
(iii) Motor cycle used for hire to carry one passenger on pillion and
motorised cycle-rickshaw for goods or passengers on hire.
(iv) Luxury cab.
(v) Three wheeled vehicles for transport of passengers or goods.
(vi) Goods carrier trucks or tankers or mail carriers.
(vii) Power tiller and tractors using public roads.
(viii) Mobile clinic or X-Ray van or library vans.
(ix) Mobile workshops.
(x) Mobile canteens.
10Following are the vehicles for private use.
i) Motor cycle with or without side car for personal use.
ii) Mopeds and motorised cycles (engine capacity exceeding 25 cc).
iii) Invalid carriage.
iv) Three-wheeled vehicles for personal use.
8 Id at s.10(2).9 Available at: http://www.iato.in/pdf/TYPESOFMOTORVEHICLESATAGLANCE 89086312.pdf. (Last visited on Sept. 13, 2016)10Supra note 9.
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52 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
v) Motor car.
vi) Fork lift.
vii) Vehicles or trailers tted with equipments like rig, generator, and
compressor.
viii) Crane mounted vehicle.
ix) Agricultural tractor and power tiller.
x) Private service vehicle, registered in the name of an individual and
if declared to be used by him solely for personal.
xi) Camper van or trailer for private use.
Following are the public service vehicle such as maxi cab, motor cab, 11
stage cariage and contract carriage including tourist vehicles.
(xiii) Educational institution buses.
(xiv) Ambulances.
(xv) Animal ambulances.
(xvi) Camper vans or trailers.
(xvii) Cash vans.
(xviii) Fire tenders, snorked ladders, auxiliary trailers and re ghting
vehicles.
(xix) Articulated vehicles.
(xx) Hearses.
(xxi) Omnibus
(xxii) Tow trucks, breakdown van and recovery vehicles.
(xxiii) Tower wagons and tree trimming vehicles owned by central, state
and local authorities.
(xxiv) Construction equipment vehicles .
Subsequently, according to the classication of vehicle, the classication
of driving licences is also prescribed by the classication of Driver’s
11Ibid.
53
12Licences Regulations made under sub-section 66(1) of the MV Act. It
provides that “drivers’ licenses shall be classied according to the type of
vehicle operated. This regulation also provides eligibility and other 13
requirements for getting the specic driving licence. Requirements
under this regulation also emphasise on training, screening test,
medicinal test certain years of experience before getting aheavy vehicle
or commercial licences. It excludes persons suffering from certain
diseases like eye disease, hypertension resulting in giddiness, myocardial
infections, angina pectoris, and other diseases from getting such licences.
This creates a hardship to certain persons to get proper driving licences.
This is also theimportant reason of corruption in getting heavy vehicle
licences in India. So, the excessive regulatory requirements force the
drivers, which are mostly from of poor family to either use inappropriate
driving licences or fake driving licences. With rampant corruption in
motor vehicle departments of different states, use of fake and
inappropriate driving licences have emerged as evil. However, the use of
such fake and inappropriate licences are only questioned when the
vehicle met with accidents and a case for compensation is led.
III Liability of insurance company
MV Act clearly mandates for taking third party insurance. Sec 146 of this
Act “No person shall use, except as a passenger, or cause or allow any
other person to use, a motor vehicle in a public place, unless there is in
force in relation to the use of the vehicle by that person or that other
person, as the case may be, a policy of insurance complying with the 14
requirements of this chapter.” The third party is being indemnied by
sec.147(5) of this Act. It provides that “Notwithstanding anything
contained in any law for the time being in force, an insurer issuing a
policy of insurance under this provision shall be liable to indemnify the
person or classes of persons specied in the policy in respect of any
12 See, Classication of Drivers’ Licenses Regulations as per s. 66(1) of the Motor Vehicle Act.13 Ibid.14Id,at s. 146.
Liability of The Vehicle Insurer in the Cases of Fake and Inappropriate Driving Licenses
54 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
liability which the policy purports to cover in the case of that person or 15those classes of persons.”
Sec. 149 of this Act provides for the defences, which they can take in the
event of an accident by the insured vehicle. Sec. 149 (2) a sub-clause (ii)
provides that “no sum shall be payable by an insurer under sub-section
(1) in respect of any judgment or award unless, before the
commencement of the proceedings in which the judgment or award is
given the insurer had notice through the court or, as the case may be, the
Claims Tribunal of the bringing of the proceedings, or in respect of such
judgment or award so long as execution stays thereon pending an appeal;
and an insurer to whom notice of the bringing of any such proceedings is
so given shall be entitled to be made a party thereto and to defend the
action on any of the following grounds, namely: a condition excluding
driving by a named person or persons or by any person who is not duly
licensed, or by any person who has been disqualied from holding or 16
obtaining a driving licence during the period of disqualication.”
So, the provision clearly mandates for excluding duly licensed aperson or
the person who is disqualied from holding driving licences. Naturally,
the insurance companies are using this provision against the claimant in
different cases. Wherever, the case of inappropriate or fake driving
licence is present, the insurance companies are raising it as astatutory
defence for completely denying their liability.
IV Judicial interpretations
The contract of insurance being the specic contract and law is very clear
on this matter. It is difcult for the court to deny prima facie the
provisions above said. Particularly, sec. 149(2) (a)(ii) of the MV Act
gives a right to the insurer to take a defence that person driving the vehicle
at the time of the accident was not duly licensed. In other words, sec. 149
(2) (a) (ii) puts a condition excluding driving by any person who is not
duly licensed. However, motor accidents cases are an example of
15Id,at s. 147(5).16Id,at s. 149(2) a sub clause (ii).
55
benecial legislation dealing with the tragic incidence of road deaths, so
the courts have developed a balanced approach to deal with this issue.
17In the case of National Insurance Company v. Kusum Rai it was held
that:
If the vehicle is a taxi which is being driven by a driver holding licence for
driving Light Motor Vehicle only without there being any endorsement
for driving transport vehicle, the Insurance Company cannot be ordered
to pay compensation.
18In the case of New India Assurance Co. Ltd., Shimla v. Suraj Prakash , it
was held that:
The vehicle involved in an accident was ataxi, a public service vehicle.
But the licence issued in favour of the driver was to ply light motor
vehicle and there was no endorsement to drive atransport vehicle. It was,
therefore, held by the High Court that the Insurance Company cannot be
saddled with the liability to pay compensation to the claimant. There too,
the claimant placed reliance on Ashok Gangadhar. The Court, however,
distinguished it observing that ‘there was neither any evidence therein
nor was there any claim for aninsurer that the vehicle concerned therein
was having a permit for goods carriage or that it had a permit or
authorization for plying the vehicle as a transport vehicle.
19In the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan ,
it was held that:
If a truck driver leaves the truck with engine in motion after handing over
the truck to cleaner who was not a duly licensed person who drives the
truck which causes an accident, it cannot be contended by the Insurance
Company that it would not be liable to pay compensation to a third party
who sustains injury because of the accident.
17 (2006) 4 SCC 250.18 AIR 2000 HP 91.19 (1987) 2 SCC 654.
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56 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
20In the case of New India Assurance Co. Ltd v. Prabhu Lal , where at the
time of the accident, the heavy vehicle was driven by Ram Narain,
brother of the complainant. Admittedly, Ram Narain possessed a licence
to drive an LMV and not an HMV. It was held that on the basis of the
evidence adduced by the insurance company, the complainant was not
entitled to claim any compensation from the insurance company and
insurance company cannot be held liable. However, in series of cases the
Supreme Court held that not having the appropriate or having fake
driving licence will not absolve the insurer from the liability.
In the case of Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd,
the Supreme Court held that sec. 3 of MV Act mandates for the necessity
for driving licence. This provision uses two expressions, namely, ‘motor
vehicle’ and ‘effective driving licence’. ‘Effective’ would mean a valid
licence both as regards the period and type of vehicle. Further, under sec.
66 of the Act falling under this chapter no owner of a motor vehicle shall
use or permit the use of the vehicle as a transport vehicle in any public
place whether or not such vehicle is actually carrying any passenger or
goods except in accordance with the conditions of permit granted by the
prescribed authority authorising the use of the vehicle in that place in the
manner in which the vehicle is being used. However, in this case, the
driver was holding aneffective valid licence on the date of the accident to 21
drive light motor vehicle.
22In the case of National Insurance Company Limited v. Swaran Singh ,
where the question was to determine the liability of insurer in the cases of
(a) driving licence produced by the driver or owner of the vehicle was a
fake one; (b) driver did not have any licence whatsoever; (c) licence,
although was granted to the concerned driver but on expiry thereof, the
same had not been renewed;(d) licence granted to the drivers being for
one class or description of vehicle but the vehicle involved in the accident
was of different class or description, and (e) the vehicle in question was
20(2008) 1 SCC. 696.21(1999) 6 SCC 620.22AIR 2004 SC 1531.
57
driven by a person having a learner’s licence. It was held by the Supreme
Court that:
If a person has been given a licence for a particular type of vehicle as
specied therein, he cannot be said to have no licence for driving another
type of vehicle which is of the same category but of adifferent type. As for
example when a person is granted a licence for driving a light motor
vehicle he can drive either a car or a jeep and it is not necessary that he
must have driving licence both for car and jeep separately. Furthermore,
the insurance company with a view to avoiding its liabilities is not only
required to show that the conditions laid down under sec. 49(2)(a) or (b)
are satised but is further required to establish that there has been a
breach on the part of the insured.”
So, the court held that for a fake driving licence , the insurer is to establish
wilful breach on the part of the insured and not for the purpose of its
disentitlement from raising any defence or the owners be absolved from 23any liability whatsoever.
Further, with the cases of no driving license or inappropriate driving
license , it was held that the insurer has to establish the wilful breach of
the conditions. If the owner is aware of the situation then the owner is
responsible, otherwise, insurer is liable. However, it was held by the court
that insurer can recover the money from the owner or the driver in the
case of wilful breach of the conditions. So, it was held that “mere
absence, fake or invalid driving licence or disqualication of the driver
for driving at the relevant time, are not in themselves defences available
to the insurer against either the insured or the third parties. To avoid its
liability towards insured, the insurer has to prove that the insured was
guilty of negligence and failed to exercise reasonable care in the matter of
fullling the condition of the policy regarding use of vehicles by duly
licensed driver or one who was not disqualied from driving at the 24relevant time.” Accordingly, the court has decided against the insurance
company.
23Supra note 22.24Ibid.
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58 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
25In the case of New India Assurance Company, Shimla v. Kamla , a fake
licence had happened to be renewed by the statutory authorities and the
question arose as to whether Insurance Company would be liable to pay
compensation in respect of motor accident which occurred while the
vehicle was driven by a person holding such a fake licence. Answering
the question, this Court discussed the provisions of sec.146, sec.147 and
sec. 149 of the Act .
In the case of Pepsu Road Transport Corporation v. National Insurance 26Company , again this question was raised that whether the Breach of
conditions under sec. 149(2)(a) of the Motor Vehicles Act, 1988 absolves
the insurer of its liability to the insured. Sec. 149(2)(a)(ii) deals with the
conditions regarding driving licence. In case the vehicle at the time of the
accident is driven by a person who is not duly licensed or by a person who
has been disqualied from holding or obtaining a driving licence during
the period of disqualication, the insurer is not liable for the
compensation. In this case, the driver allegedly possessing only a fake
driving licence. The Supreme Court referred the cases of Skandia and 27
Sohan Lal Passi and held that:
The breach must be on the part of the insured. We are in full agreement
with that. To hold otherwise would lead to absurd results. Just to take an
example, suppose a vehicle is stolen. Whilst it is being driven by the thief
there is an accident. The thief is caught and it is ascertained that he had no
licence. Can the Insurance Company disown liability? The answer has to
be an emphatic ‘no’. To hold otherwise would be to negate the very
purpose of compulsory insurance. The injured or relatives of the person
killed in the accident may nd that the decree obtained by them is only a
paper decree as the owner is a man of straw. The owner himself would be
an innocent sufferer. It is for this reason that the Legislature, in its
wisdom, has made insurance, at least third party insurance, compulsory.
25(2001) 4 SCC 342.26 2013(10) SCALE 663. 27Ibid.
59
The aim and purpose being that an insurance company would be
available to pay.
It was further observed by the court thus-
The business of the company is insurance. In all businesses, there is an
element of risk. All persons carrying on business must take risks
associated with that business. Thus it is equitable that the business which
is run for making prots also bears the risk associated with it. At the same
time, innocent parties must not be made to suffer or loss. These
provisions meet these requirements. We are thus in agreement with what
is laid down in aforementioned cases viz. that in order to avoid liability it
is not sufcient to show that the person driving at the time of the accident
was not duly licensed. The insurance company must establish that the 28
breach was on the part of the insured.
29In United India Insurance Company Limited v. Lehru and Others , it was
held that:
The insurance company cannot be permitted to avoid its liability only on
the ground that the person driving the vehicle at the time of theaccident
was not duly licensed. It was further held that the willful breach of the
conditions of the policy should be established. Still further it was held
that it was not expected of the employer to verify the genuineness of a
driving licence from the issuing authority at the time of employment. The
employer needs to only test the capacity of the driver and if after such test,
he has been appointed, there cannot be any liability on the employer. The
situation would be different when the employer was told that the driving
licence of its employee is fake or false and yet the employer not taking
appropriate action to get the same duly veried from the issuing
authority.
It was further held that-
When an owner is hiring a driver he will, therefore, have to check whether
the driver has a driving licence. If the driver produces a driving licence
28Supra note 26.29(2003) 3 SCC 3384.
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60 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
which on the face of it looks genuine, the owner is not expected to nd out
whether the licence has in fact been issued by a competent authority or
not. The owner would then take the test of the driver. If he nds that the
driver is competent to drive the vehicle, he will hire the driver. We nd it
rather strange that insurance companies expect owners to make enquiries
with RTOs, which are spread all over the country, whether the driving
licence shown to them is valid or not. Thus where the owner has satised
himself that the driver has a licence and is driving competently there
would be no breach of sec. 149(2)(a)(ii). The Insurance Company would
not then be absolved of liability. If it ultimately turns out that the licence
was fake, the insurance company would continue to remain liable unless
they prove that the owner/insured was aware or had noticed that the
licence was fake and still permitted that person to drive. More
importantly, even in such a case, the insurance company would remain
liable to the innocent third party, but it may be able to recover from the 30
insured.
31In the case of National Insurance Corporation Ltd.v. Mrs Kanti Devi ,
where it was alleged that the driver did not possess a valid driving licence,
as the driving licence authorised driving of light motor vehicles (private),
while thedriver was driving a transport vehicle (Tata Truck-407). The
Supreme Court held that-
It may be true as has been contended on behalf of the petitioner that a fake
or forged licence is as good as no licence but the question herein, as
noticed hereinbefore, is whether the insurer must prove that the owner
was guilty of the wilful breach of the conditions of the insurance policy or
the contract of insurance. In Lehru’s case, the matter has been considered
in some detail. We are in general agreement with the approach of the
Bench but we intend to point out that the observations made therein must
be understood to have been made in the light of the requirements of the
law in terms whereof the insurer is to establish wilful breach on the part of
30Supra note 29. 31(2005)5 SCC 789.
61
the insured and not for the purpose of its disentitlement from raising any
defence or for the owners to be absolved from any liability whatsoever.
This Court, however, in Lehru must not be read to mean that an owner of a
vehicle can under no circumstances have any duty to make any enquiry in
this respect. The same, however, would again be a question which would
arise for consideration in each individual case.” So, the court did not
accept the arguments of the insurer.
In the case of Oriental insurance company v. Angad Kol , where the 32
contention was raised with respect to inappropriate driving license of the
driver, it was held that the insurance company to deposit the balance
amount before the Tribunal with liberty to the claimants to withdraw the
same give right to the appellant to recover the said amount from the
owner and the driver of the vehicle.
33In the case of S.Iyyapan v. United India Insurance Company , where it
was challenged that the driver of the vehicle was not having the driving
licence on that day, It was held by the supreme court that “even where the
insurer is able to prove breach on the part of the insured concerning the
policy condition regarding holding a valid licence by the driver or his
qualication to drive during the relevant period, the insurer would not be
allowed to avoid its liability towards the insured unless the said breach or
breaches on the condition of driving licence is/are so fundamental as are
found to have contributed to the cause of the accident. The Tribunals in
interpreting the policy conditions would apply “the rule of themain
purpose” and the concept of “fundamental breach” to allow defences
available to the insurer under sec. 149(2) of the Act.” Finally, it was held
that “the driver was holding a valid driving licence to drive light motor
vehicle. There is no dispute that the motor vehicle in question, by which
accident took place, was Mahindra Maxi cab. Merely because the driver
did not get any endorsement in the driving licence to drive Mahindra
Maxi Cab, which is a light motor vehicle, the High Court has committed
grave error of law in holding that the insurer is not liable to pay
322009 ACJ 1411.33(2013) 7 SCC 62.
Liability of The Vehicle Insurer in the Cases of Fake and Inappropriate Driving Licenses
62 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
compensation because the driver was not holding the licence to drive the 34commercial vehicle.”
V Motor Vehicles Amedment Bill, 2016 vis-a- vis the liabilty
of insurer with respect to fake and inppropriate driving licences
The said Bill provides for standards for motor vehicles, grant of driving
licenses, and penalties for violation of these provisions.
(a) Under proposed sec. 66 of the Act, National Trasportaion Policy is
proposed to establish framework for passenger and goods
transportation within which transport bodies are to operate and to
establish the framework of grant of permits and schemes.
(b) Amended sec. 8 of the Act proposes the procedure for obtaining a
learner’s licence. It seeks to enable an applicant to apply to any
licensing authority in the State, to use online means to submit the
application, fee and other documents, and allow the government
exibility in determining the eligibility to obtain a learner’s licence.
It also seeks to provide for the issue of a learner’s licence in
electronic form.
(c) New sec. 25A is added to deal with the problems of using driving
licenses of one state into the other state . It provides for the
establishment of a National Register of Driving Licences
containing data on all driving licences issued throughout India and
facilitate the grant of licences in a transparent and efcient manner.
It also seeks to enable the State Governments to transmit all
information contained in the State Register of Driving Licences to
the Central Government and to update the National Register in a
manner to be prescribed by the Central Government. This will help
in ghting with the problems of fake driving licenses to a
considerable extent.
(d) Under sec. 164B of the Act provides for the establishment of the
Motor Vehicle Accident Fund regarding compulsory insurance of
34Decided by the Supreme Court on 1 July, 2013, Avaialable at:
judis.nic.in/supremecourt/chejudis.asp. (Last visited on Sept.12, 2016).
63
all road users for the purposes of emergency medical treatment for
victims of road accidents. The Fund may also be utilised for the
purposes of providing compensation to the victims of road
accidents and their families.
(e) Liabilty from the insurance companies is being shared with owner
and driver of the vehicle. UnderaAmended sec. 164, the owner or
driver of the vehicle is also required to contribute the amount on the
basis of a structured formula.
So, in nutshell, it can be said that an attempt has been made under this bill
to ll the lacunas in the existing system by use of technology.
However, with respect to determination of liability the previous
interpretations of the law made by the various court is still relevant.
VI Conclusion
From the above analysis it is clear that the Supreme Court has interpreted
the provisions considering the basic reality that after the road accident,
only the insurance company is in aposition to pay substantive
compensation. The present Bill tries to ll the gap by providing the
proper system of driving licencses and their proper use. However, after
passing this a law, it will take a few years in making it a reality. With
respect to the compensation, the new bill tries to put the onus on the driver
and the owner under a structured formula. This provision is good for the
insurance company but in actual use, it will be very difcult to recoverth
the money from the drivers and the vehicle owners. So, the absence of
driving license , fake or inappropriate driving licence or disqualication
of the driver for driving at the relevant time are not in themselves
defences available to the insurer against either the insured or the third
parties. If the defence under the said provision is taken then onus to prove
would lie upon the insurance companies. Even under the present bill , no
relaxtion has been given to the insurance companies. So, the insurer is
required to prove the wilful breach of the condition, which is very
difcult in practice. Now apart from proving the wilful breach in not
having adriving license, or having fake or inappropriate driving license, it
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64 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
has to be proved that wilful breach isfundamental to the contract of
insurance. Even after proving this, the insurer is just having the right of
recovery from the owner of the vehicle or the driver. Creating a seprate
fund for dealing with motor accidents cases is a welcome step. However,
the liability of the insurance companies for the use of fake or
inappropriate driving licnese has to be detrmined as per the judicial
interpetaitions evolved in the said cases.
65
DECRIMINALIZATION OF ATTEMPT TO SUICIDE: A MOVE
FROM RETALIATION TO REHABILITATION
*Rituraj Sinha
*Sonali Roy Choudhury*
Abstract
Section 309 of the IPC lays down the punishment for attempt to suicide. According to it,
whoever attempts to commit suicide and does any act towards the commission of such
offence shall be punished with simple imprisonment for a term which may extend to one year
or with ne or with both. From the language of the section it is clear that suicide is obviously
no crime under the Indian Penal Code, it is only attempt to commit suicide that is punishable.
It is a highly insensitive provision that gives an option to a person to die successfully or be
prosecuted. There seems to be a logic behind this punitive provision as life of a person is not
only valuable to him but for the State also. It is an obligation on the State to save the life of
every person and does not allow any one including him to take one’s life. From the last few
decades there has also been a debate on the criminal nature of the provision dealing with an
‘attempt to suicide’ under section 309 IPC.
Various reports, recommendations, judgments of the Supreme Court and statutes dealing
with health have triggered the debate over the issue. It started many years back but recently it
got a new height when on December 10, 2014, India’s Ministry of Home Affairs announced
in a press release regarding its decision to decriminalize attempt to suicide by repealing
section 309 IPC. Another important step which clears the intention of the Government is the
preparation of a draft Bill titled ‘Terminally Ill Patients (Protection of Patients and Medical
Practitioners) Bill’ on passive euthanasia that gives patients the right to ‘withhold or
withdraw medical treatment to herself/ himself’ and ‘allow nature to take its own course’. In
a society moving towards modernization and globalization and where everyone has started
talking much on quality of life, this question is remains debated: whether section 309 IPC
should be decriminalize? The authors through this paper cover the debate on the merits and
demerits of the bold intention of the government to decriminalize an attempt to suicide with
the background of step towards reformation from retaliation.
I Introduction
LIFE IS something which can be described as a gift of God and can be
given to us only by Him. Hence, we cannot claim any right to take away
such life and that too sometimes one’s own. Suicide, therefore, has
become a part of an unending controversial and debatable issue since
time immemorial. Not only in the modern society but also in the past
* Assistant Professor, Amity Law School, Noida** Assistant Professor, Amity Law School, Noida
Decriminalization of Attempt to Suicide: A Move from Retaliation to Rehabilitation
66 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
there were several social players including religion, monarchy, and
colonialism which have condemned and prohibited suicide. Suicide is
dened as death caused by self-directed injurious behaviour with intent
to die as a result of the behaviour. This makes it a unique and peculiar
crime in the Penal Code, where both the accused and victim is the same
person. It may also be dened as a purposeful termination of one’s own
physical existence or self-murder. It is an act of voluntarily or 1intentionally taking one’s own life. Therefore, an attempt to suicide is
treated as a grave hitch requiring mental health interventions. From the
last few decades there has been a debate on the criminal nature of the
provision dealing with an ‘Attempt to Suicide’ under section 309 IPC.
Many times the debate revolved around the sentimental and religious
reasons behind it and as a result, it is still treated as a criminal offence
under section 309 of the IPC. Thus, section 309 of the IPC is a highly
insensitive provision that gives an option to a person to die successfully
or be prosecuted.
Before going further into the debate, it is imperative to discuss here the
nature and scope of section 309, IPC. It says that a person, who makes an
attempt to suicide and fails, will face an imprisonment for up to a year or a
ne or both. The offence of ‘attempt to suicide’ is treated as a cognizable
offence. This gives the power to a policeman to go to the hospital where
the individual who attempted suicide is recovering, arrest him and put
him through the torture of criminal proceedings at a time when he is
already emotionally fragile. In a civilized society one cannot digest this
abuse of human autonomy where you are punishing a person who has
attempted suicide and is already emotionally fragile. As the largest
democracy in the world, and as one of the most stable regimes in South
Asia, India has the moral responsibility to pave way for legal reforms.
The opening of the way for the legal reforms started many years back but
recently it got a new height when on December 10, 2014, India’s Ministry
of Home Affairs announced in a press release regarding its decision to
1 th Law Commission of India, 210 Report on Humanization and Decriminalization of Attempt to Suicide, 2008.
67
decriminalize attempt to suicide by repealing section 309 IPC. The
decision of the government to decriminalize it came after six years of the
recommendation of the Law Commission of India in a number of their
previous reports. In 2008, the Commission described the law as
“anachronistic” and argued that attempted suicide was the
“manifestation of a diseased condition of mind deserving treatment and 2care rather than an offence to be visited with punishment”. As the
Constitution of India, law and order is a State subject, views of
States/UTs were asked on the recommendation. Barring few, as much as
18 States and 4 Union Territories favoured the recommendation and
voted for the decriminalisation of section 309 IPC. However, states like
Bihar, Madhya Pradesh and Delhi opposed the recommendation and
advised not to scrap the provision. Citing example of suicide bombers,
Bihar government told the Home Ministry that the provision will help to
prosecute them if they fail in their attempt to blow themselves up and
other terrorists also who consume cyanide pills with the intention to wipe
out evidence.
The debated has to seen as a hard-to-win match between the traditional
approach and the modern approach. At the outset it seems that it is
inhuman to punish such a person who is vulnerable and is already going
through an emotional and mental turmoil. This approach has got much
favour for the scrapping of the provision and to make our penal code more
humane. The person needs counselling, better treatment, therapy and
rehabilitation, not jail.
The authors through this article covers the debate on the merits and
demerits of the bold intention of the Government to decriminalize an
attempt to suicide. From euthanasia to suicide bombers, terrorists and
silent protesters, the proposal has given heat to all the pending
discussions.
2 Available at: http://lawcommissionondia.nic.in/reports/report210.pdf (last visited on April 15, 2016).
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68 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
II Penal provision of suicide under IPC
Every day when a newspaper is opened or while watching a news
bulletin, it is seen that there is at least one incident of suicide or attempted
suicide that has been reported. It is a common incident which takes place
every day and affects the people of all classes throughout the globe.
However, it is not dened anywhere in the Indian Penal Code, 1860. It
may briey be dened as an act of self-inicted, self-intentioned 3cessation. It is a wilful and voluntary act of a person who understands the
physical nature of the act, and intends by it to accomplish the result of 4self-destruction. It has also been dened by various sociologists and
psychologists in different ways. Some of the denitions are ‘suicide is the
initiation of an act leading to one’s own death’. It is synonymous with
destruction of the self by the self or the intentional destruction of one’s 5self. Accordingly suicide can be dened as killing oneself intentionally
in order to renounce his life and to leave the world. The Oxford
Companion to Law explains it as ‘self killing or taking one’s own life’.
According to a French sociologist Emile Durkheim, ‘The term suicide is
applied to all cases of death resulting directly or indirectly from a positive
or negative act of the victim himself, which he knows will produce this
result.’
In 1968, the World Health Organisation dened suicidal act as ‘the injury
with varying degree of lethal intent’ and that suicide may be dened as ‘a
suicidal act with fatal outcome’. Suicidal acts with non fatal outcome are 6labelled by World Health Organisation as ‘attempted suicide.’
In India, attempt to commit suicide is made punishable under section 309
of the IPC which provides for a maximum punishment of imprisonment
extendable to one year or ne or both. There seems to be a logic behind
this punitive provision as life of a person is not only valuable to him but
3 Encyclopaedia Britannica,383 (1973).4 Nimick v. Mutual Life Ins. Co., 10 Am. Law Reg. (N. S.) 101, Fed. Cas. No. 10, 266.5 Jack D. Donglas, The Social Meaning of Suicide (Princeton Univ. Press, New Jersey, 1967).6 Department of Mental Health and Substance Abuse, World Health Organization, Report: Preventing Suicide A Resource for Media Professionals (ISBN 978 92 4 159707 4).
69
for the State also. It is an obligation on the State to save the life of every
person and does not allow any one including him to take one’s life.
Section 309 of the IPC reads as:
“Whoever attempts to commit suicide and does any act towards the
commission of such offence shall be punished with simple imprisonment
for a term which may extend to one year or with ne or with both.”
From the language of the section it is clear that suicide is obviously no
crime under the Indian Penal Code, it is only attempt to commit suicide
that is punishable which means when a person is unsuccessful in
committing suicide only then the provisions of section 309, IPC are 7attracted. To elaborate, mens rea i.e. intention is treated as one of the
important elements for this offence. To make someone guilty for this
offence it becomes important to prove the intention behind the act to
commit suicide. The nature of the offence under the Indian Penal Code is
cognizable, bailable, non-compoundable and triable by a Metropolitan
Magistrate or any Magistrate.
From the above understanding regarding the nature and scope of section
309, IPC it becomes clear that a person who makes an unsuccessful
attempt to commit suicide would fall under the category of ‘Criminal’
and will be punished. It is done to a person who is highly depressed or
diseased or who has lost all hope to live. Rather in a civilized society like
us, he should be treated with sympathy and consolation. Therefore, in a
society moving towards modernization and globalization and where
everyone has started talking much on quality of life, this question is
always debated: Whether ‘right tor ife’ enshrined under the article 21 of
the Constitution of India includes ‘right to die’?
III Constitutional validity of Section 309 IPC
Traditional dimension
There is a fundamental question involved with the section 309, IPC and it
is answered with all the pressure of society. The question need to be
7 thPillai P. S. A., Criminal Law (9 Edition, Lexis Nexis, Butterworths, Nagpur).
Decriminalization of Attempt to Suicide: A Move from Retaliation to Rehabilitation
70 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
answered with a balancing act between the pressure of the social and the
thoughts, emotions and ego within an individual attempting to commit
suicide. This leads us to a nal question: Whether ‘Right to Life’
enshrined under article 21 of the Constitution of India includes ‘right to
die’? If a person has right to live under article 21 of the Constitution, the
question is whether he has a right not to live. There have been cases,
which have varied on the basis of right to life and right to die.
The question regarding the validity of section 309, IPC was raised rst in
a leading case of Bombay High Court in Maruti Shripati Dubal v. State of 8Maharashtra in 1987. In this case, the court treated Section 309, IPC as a
cruel, irrational provision and struck it down. It also opined that it is utra
vires of the concepts enshrined under articles 14, 19 & 21 of the
Constitution of India. According to the court, a number of suicides are
condemned and some are raved about but the section treats all of them
equal and is, therefore, arbitrary and violative of article 14. The section is
further violative of article 19 as the right enumerated in this article can be
only enjoyed by a living person. It also violates ‘right to life’ under article
21. Right enshrined under article 21 is treated as a positive right. It
includes ‘Right to Die’ and thus gives a person the right to die if he/she
desires. PB Sawant J. observed that in no case does the punishment serve
the purpose and sometimes is bound to prove self-defeating and counter-
productive.
Similar question regarding the constitutional validity of section 309 was
raised before the Andhra High Court after Bombay High Court. Unlike
Bombay High Court, this court gave the opposite reaction towards the
question of validity. The Andhra Pradesh High Court in Chenna 9Jagadeeshwar v. State of A.P. held that section 309 IPC is
constitutionally valid and thus not violative of articles 14, 19 or 21 of the
Constitution of India.
The above two judgments of different high courts led to the confusion
with regard to the question of constitutional validity of section 309 IPC.
8 1985 CrLJ 931.9 1988 CrLJ 549 (A.P.).
71
However, it did not last very long and the confusion was removed very 10soon by the Supreme Court of India in P. Rathinam v. Union of India. In
this case, the Supreme Court of India upheld the verdict given by Bombay 11
High Court in Maruti Shripati Dubal v. State of Maharashtra. It opined
that a person has ‘Right to Die’ and therefore section 309 of the IPC is
void. It is further cruel, harsh and irrational and violative of article 21. It is
irrational and inhuman to force a person to enjoy his life even if he does
not desire to do so and therefore, the court observed that an individual
cannot be forced to live. The court was of the observation that a person
who is unsuccessful of committing suicide should not be punished or
prosecuted, as making him/her liable for punishment under this section,
the law and the world is not showing humanity towards him. Instead of
aiding the problems of an individual, an effort should be made to relieve
the problems by various other methods. The court thus upheld that ‘right
to life’ includes ‘right not to live a forced life’.
But later a ve-Judges Bench of the Supreme Court of India in Gian Kaur 12
v. State of Punjab overruled its own judgment in P. Rathinam v. Union of 13
India and held section 309, IPC is constitutionally valid. Considering
the importance of the issue involved senior advocates F. S. Nariman and
Soli Sorabji were invited to appear as amicus curiae.
The court observed:
‘Right to life’ guaranteed under article 21 of the Indian Constitution did
not include the ‘right to die’ or ‘right to be killed’ and therefore attempt to
commit suicide under section 309, IPC is within the constitutional
parameters and are not void or ultra vires. ‘right to life’ is a natural right
embodied in article 21 but suicide is an unnatural termination of life and
incompatible and inconsistent with the concept of ‘right to life’. The
‘right to die’ with human dignity’ cannot be construed to include within
10 1994 CrLJ 1605 (S.C.).11 Supra note 8.12 (1996) 2 SCC 649.13 Supra note 10.
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72 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
its ambit ‘the right to terminate natural life’, at least before the natural
process of certain death.
Thus, the Supreme Court of India restores the constitutionality of section
309 through its judgement in the above case and thus opened the question
for discussion for the modern world where everyone is talking about the
‘decriminalization of section309, IPC’.
Modern dimension
‘Right to life’ guaranteed under article 21 of the Constitution of India is
considered to include duty to live and therefore, an individual has no right
to end his life. This statement sometimes lose its strict meaning, in case of
a dying man, who is, seriously ill or has been suffering from virulent and
incurable form of disease. This situation therefore becomes a category
where ‘right to die’ falls within the ambit of or becomes part of right to
life with dignity.
14In a landmark case of Aruna Ramchandra Shanbaug v. Union of India,
the apex court in 2011 opined that ‘the time has come when section 309
should be deleted by the Parliament as it has become anachronistic.’ The
main question for adjudication before the apex court was whether a
person who advertently refuses to accept lifesaving treatments or food in
order to die, commits a crime under section 309, IPC. In this case, Aruna
Shanbaugh, from Karnataka, was a junior nurse who was brutally raped
by a hospital ward boy further leading to major brain stem injury and
cervical cord injury apart from leaving her cortically blind. A petition was
led by Pinki Virani, a journalist and her friend, for allowing to
discontinue lifesaving treatment for Aruna Shanbaugh and to recognize
passive euthanasia in this particular case.
The apex court recognized passive euthanasia in this particular case and
gave its verdict on March 07, 2011 in its favour, which changed the entire
approach and became a landmark judgment. It not only allowed passive
euthanasia in certain circumstances but also out rightly rejected active
euthanasia for ending life through administration of lethal substances.
14 AIR 2011 SC 1290.
73
But the recognition was made on one major condition i.e. persistent
vegetative state or terminally ill. Therefore, to allow passive euthanasia
one has to be in persistent vegetative state or terminally ill. In order to
apply passive euthanasia to future cases, the Supreme Court opined that
the observation given in this particular case should now be treated as law
of the land until Parliament enacts a suitable legislation to deal with the
issue.
The Supreme Court Bench consisting of Markandey Katju and Gyan
Sudha Misra JJ also asked the Parliament to delete section 309, IPC as the
provision has become anachronistic and thus, further fuelled the debate
regarding the constitutional validity of the section.
Another recent development which marked a shift of approach
concerning the constitutional validity of the section 309 and supported
for the decriminalization of it is the new Mental Health Care Bill, 2013.
The bill was drafted on the background of need of a social model based
medical on human rights. This also makes it adherent to the principles of
the UN Convention on the Rights of Persons with Disabilities. The social
model of disability urges us to look beyond the issues of medical
treatment and disease, to the identication of the social barriers that deny
people with psycho-social disabilities the rights to employment,
education, recreation and even citizenship. That person driven to commit
suicide are, more often than not, facing mental health disorders and are in
need of care and treatment was suggested in the new Mental Health Care 15
Bill, 2013.
Out of the various provisions in the Bill, clause 124 has been widely
popularised due to its exemption of punishment for a person who has
attempted suicide. It provides that there shall be no prosecution of any
person who attempts to commit suicide if he/she has a mental illness
unless shown otherwise. Further, it also imposes duty on the government
15 The statements of objects and reasons to the Bill state the government ratied the United Nations Convention on the Rights of Persons with Disabilities in 2007. The Convention requires the laws of the country to align with the Convention. The new Bill was introduced as the existing Act does not adequately protect the rights of persons with mental illness nor promote their access to mental health care.
Decriminalization of Attempt to Suicide: A Move from Retaliation to Rehabilitation
74 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
to provide care, treatment and rehabilitation to such person. The very
nature of the provision seeks to nullify section 309 IPC, which made the
attempt to suicide a criminal offence. However, the bill does not give any
guidelines on how care and treatment should be provided for such
vulnerable persons.
The verdict given by the Supreme Court in the case of Aruna 16
Ramchandra Shanbaug v. Union of India and Others also got the
support of various earlier reports of Law Commission of India. For thexample, in its 210 report on Humanization and Decriminalization of
Attempt to Suicide, the Law Commission of India treated section 309, 17
IPC as harsh and unjustiable and recommended its repeal . This was not
the rst time a report was submitted by Law Commission of India for nd
repealing the section. The second example is the 42 report submitted by
the Law Commission of India in 1971 on Indian Penal Code, in which the 18same kind of recommendation was proposed. Therefore, from many
years, even the Law Commission of India by its various reports, has
advocated for the decriminalization of the section 309, IPC for stopping a
person to be called as a criminal under it.
Very recently the Government of India has come up with a draft Bill titled
‘Terminally Ill Patients (protection of patients and medical practitioners)
Bill’ on passive euthanasia that gives patients the right to ‘withhold or
withdraw medical treatment to herself or himself’ and ‘allow nature to
take its own course’. It says that every competent patient, including
minors aged above 16 years, has a right to take a decision and express the
desire to the medical practitioner attending on her or him. The Bill
provides protection to patients and doctors from any liability for
withholding or withdrawing medical treatment and states that palliative
care (pain management) can continue. The draft also lays down the
process for seeking euthanasia, right from the composition of the medical
16 Supra note 14.17 Available at: http://lawcommissionondia.nic.in/reports/report210.pdf (Last visited on May 5, 2016).18 Available at: http://lawcommissionondia.nic.in/1-50/Report42.pdf (Last visited on May 5, 2016).
75
team to moving the high court for permission. The draft Bill has been
uploaded on the website of health ministry for the comments/ views/ 19suggestion till June 19, 2016. In the modern world, India should match
various developing and developed countries such as US, Canada,
England, where ‘Decriminalisation of Attempt to Commit Suicide’ has
already been done.
IV Decriminalization of attempt to suicide-the need of the hour
The debate over the issue is not new. It has puzzled the minds of social
scientists, philosophers and jurists since the beginning of the civilization.
Various reports, recommendations, judgments of the Supreme Court and
statutes dealing with health have further triggered the debate over the
issue. But recently the debate has gone to a new level due to the initiative
taken by our current hon’ble prime minister Narendra Modi. The
government is trying to ensure that people who are driven to kill
themselves do not end up in jail if they don’t succeed. This is not the rst
time that a government has thought of removing section 309 IPC. The
attempts and debate were done in the past also but this time a step forward
has been taken when India’s Ministry of Home Affairs on December 10,
2014 announced in a press release its decision to decriminalize attempt to
suicide by repealing section 309 of IPC and by uploading the draft bill
titled ‘Terminally Ill Patients (protection of patients and medical
practitioners) Bill’ regarding passive euthanasia on the website of the
Union Health Ministry.
Historically, suicide under section 309 was attached with the religion.
The control of religious institutions was inuential in determining the
legal stance supporting the criminalization of attempt to suicide. Suicide
has been known throughout the whole of recorded history and has been a
phenomenon in every culture and social setting even if most of the major
religions have opposed it. The common belief among Hindus is that a
person who commits suicide will not attain ‘moksha’. The Holy Bible
denies decent burial to a person committing suicide. According to the
19 Iyer Malathy, ‘Allow Passive Euthanasia? Centre Asks for Review’, Times of India, Delhi edition, May 16, 2016.
Decriminalization of Attempt to Suicide: A Move from Retaliation to Rehabilitation
76 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
Jewish only God has this capacity; it is a capacity that no creature should 20attempt to achieve, let alone assume that that it already possesses. The
Quoran also considers suicide as more condemnable a sin than the killing
of others. However, these religious views and arguments did not work in
the modern society where everyone talks about human rights and right to
die. Even with attached religious sentiments, the act of attempting suicide th thhas been decriminalized in 19 and 20 centuries in various developed
and developing countries.
Therefore, the rst argument which comes in favour of the
criminalization of the act is based on the religious sentiments. It says that
the God has only the right and power to take life and those who takes life
on their own does some sinful act. Conversely, a verse from the Isavaya
Upanishad declares, ‘he who takes himself (his life) reaches after death,
sunless regions covered with darkness’; the common belief among
Hindus is that a person who commits suicide will not attain ‘moksha’.
Similarly, the Church did not always condemn suicide when, for
example, following some severe assault, such as rape, the victim took a
‘virtuous’ or honourable way out. But the reasoning behind these
religious sentiments clearly ignores the peculiarities of the social and
economic conditions of our country and the rapid increase in suicide rates
in general and that of dowry deaths in particular.
Another major argument for criminalization is the belief that law can act
as a deterrent against such attempts in the society. However, as per the
global data of suicide issued by World Health Organization, it is still not
clear whether it is acting as a deterrent or not. A report, rst of its kind,
was published by World Health Organization presenting a
comprehensive overview of suicide. According to the report, 258,075
people committed suicide in India in 2012, with 99,977 women and
158,098 men taking their own lives. India’s suicide rate was 21.1 per
100,000 people, highest in the World.
Another data released by the National Crime Records Bureau (NCRB) in
20 Available at: http://www.suicidereferencelibrary.com/test4~id~693.php (Last visited on May 5, 2016).
77
2014 shows that at least 15 suicides took place every hour in the country
in 2013, which saw over 1.31 lakh people ending their lives. Maharashtra
topped the list as a State and Chennai topped the list among the cities.
Therefore, these Data issued by different institution/organization does
not give any proof of the deterrent effect of the section 309, IPC. Whereas
on the other hand, certain data regarding rise in narcotic drug trafcking
offences, terrorism in different parts of the country, the phenomenon of
human bombs etc. have lead to a rethinking on the need to keep attempt to
commit suicide an offence.
21In State v. Sanjay Kumar Bhatia, the Division Bench of the Delhi High
Court observed:
‘The continuance of section 309 IPC is an anachronism unworthy of a
human society like ours…..the provision like section 309 IPC which has
no justication has no right to continue to remain on the statute book.’
V. S. Deshpande after his retirement as Chief Justice of Delhi High 22
Court, referring to what had been held by the Court in P. Rathinam v. 23Union of India, regarding the scope of article 21, took the view that if
Section 309 is restricted in its application to attempts to commit suicide
which are cowardly and which are unworthy, then only this section would
be in consonance with article 21, because, if a person having had no
duties to perform to himself or to others when he is terminally ill, decides
to end his life and relieve himself from the pain of living and the others
from the burden of looking after him, prosecution of such a person would
be adding insult to injury and it was asked : ‘Should a Court construe
section 309 IPC to apply to such cases?’
The debate can be based on some morality also where the rst question
comes: whether is it morally right to punish a person for an attempt to
suicide. Law and morality are two different things but it cannot be
ignored that morality cannot be totally detached from law. Law has been
21 1986 (10) DRJ 31.22 Deshpande VS “To be or not to be” SCC (Journal section) 1984; 3: 10 - 15 quoted in P. Rathinam v Union of India.23 Supra note 10.
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78 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
evolved from the ashes of the morality. As a normal rule, every human
being has to live and continue to enjoy the fruits of life till nature
intervenes to end it. Death is also certain and is a fact of life. But if a
person has right to enjoy his life, he cannot also be forced to live that life
to his detriment, disadvantage or disliking. In such cases, it will indeed be
cruel not to permit him to die. Further those who see man as a free agent,
suicide become a moral right. Man’s life belongs to him, hence he is at
liberty to take it without denial and anybody’s interference. One best
example can be where a person refuses to give information to an enemy
camp in order not to endanger the lives of other and thereby killing
himself. This act is morally right where he opted to give away his life for
saving the life of others. In this regard eminent lawyer Ram Jethmalani
says “The right to die is a part of a wider concept of liberty. The whole
nation of the state controlling your life and death is grotesque.
V Conclusion
There can be no end to the debate of the Constitutional validity of section
309, IPC on account of the existing differences of opinion in religious,
social, cultural and legal aspects of the act to attempt suicide. However,
the time has come in the view of recent developments in different
jurisdictions to rethink about punishing the person attempting the
suicide. Our penal laws are the products of British who had made this
attempt an offence but it is frustrating to know that they themselves have
deleted this provision from their own law way back in 1961, whereas we
are still continuing it. It is not England only but many other countries like
Netherlands, Belgium, Luxembourg, Switzerland, Oregon and Canada
which has decriminalise suicide. In the phase of Global awakening, we
should not be the last country in the world to decriminalise the act. Laws
are made for the people and it should be change to meet the aims and
aspiration of the changing society. Ultimately, the aim should be to
evolve a consensual and conceptual model effectively handling the evils
without sacricing human rights.
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24Today, the verdict given in Gian Kaur v. State of Punjab is followed
where the Supreme Court upheld the constitutional validity of Section
309 and held that it is not violative of any fundamental rights enshrined
under the Constitution of India. In order to make our IPC a modern penal
law, it is necessary to bring changes and amendments keeping in mind the
needs of the current day and age. Therefore, recent development made by
the Union Government for decriminalizing section 309, IPC should be
welcomed. These developments got the backing of 18 States and 4 Union
Territories of India. Even the Law Commission of India has
recommended for deleting the provision from the statute book as it
provides double punishment for a person who has already got fed up with
his own life and desires to end it and therefore, should be treated as
inhuman and anachronistic law. Therefore, the recent bill titled as
‘Terminally Ill Patients (protection of patients and medical practitioners)
Bill’ should be passed in the Parliament and become law as soon as
possible as it is already too late in comparison with the other developed
countries. This effort will further pave the way for the total
decriminalisation of section 309 IPC to make an easy journey towards
rehabilitative theory.
24 Supra note 12.
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DOES PRIVATIZATION SERVE THE PUBLIC INTEREST? AN
ASSESSMENT OF THE RISKS AND BENEFITS OF PRISON
PRIVATIZATION
Prakash Sharma*
Abstract
This article explores one interesting nding emerging from various studies comparing
private and public distinction and their existence as on today particularly with respect to
correctional system. With the continuous rise of crime and inmates population, governments
in some part of the world are opting for privatizing criminal justice system—especially
prison. On one hand the proponents of privatization contend that private contractors,
unencumbered by government procurement and personnel procedures, can provide better
quality prison services at lower costs, on the other hand evidences are against the use of
privatization—essentially with respect to core functions of the State. While ndings do not
constitute an argument in favour of privatization, yet they provide an opportunity to be less
romantic about public sector values and practices, and be more circumspect about the
dangers of diminishing public accountability. The solution is to bring public norms in private
sphere.
I Introduction
WITH THE invention of modern technologies, development of new
powerful tools, discovery and exploration of rich new avenues, all
together and many more has ultimately led to an exciting new horizon of 1seeing the world with an expansive optimism about the future. The whole
prospect of telecom industry, aviation industry, and education industry
has changed dramatically over the past two decades, and the major
*Ph.D Scholar, Delhi University. The author acknowledges research assistance availed from Naveen Chandra Sharma, LL.M Student (2nd Year), Indian Law Institute.1 See Al Gore, Earth in Balance: Ecology and Human spirit (Houghton Mifin, Boston, 1992), and Al Gore, Our choice: A plan to solve the climate crisis, 254 (Rodale Books, Emmaus, 2009). It is stated that:“The speed which the global economy is revolving and the changes it has brought— have some deep impact on national policies, regional strategies—thanks to the much needed revolutionized technologically hyper connected, tightly integrated, and highly interactive world”. See Mancur Olson, The Rise and Decline of Nation: Economic Growth, Stagation, and Social Rigidities (Yale University Press, New Havens, 1982); to have a different opinion on the advancements see David C. Korten, When Corporations Rule the World (Kumarian Press, Bloomeld, 1995); David Rothkopf, Power Inc.: The Epic Rivalry Between Big Business and Government—and the Reckoning That Lies Ahead (Farrar, Strauss and Giroux, New York, 2012).
81
changes have nothing to do with the recently imposed fees for checked
bags, blankets, or bottles of water. Instead, the main shift relates to the
transfer of ownership, be it aviation or telecom even education to the
private players. The most prophetic part of all this makes us believe to
realize a world that is shrinking rapidly with better transport and
communications facilities. The world is lled with many illustrations 2concerning private players and their role in the society. This has brought
along with it some disappointments and shortcomings. Of course, all of
the evidence is not on one side of the privatization debate. The expansion
of the private sector into prisons, for example, has generated considerable 3
controversy. The state, under which our prisons are, reects
disappointments thereby replacing hope with despair. Most countries,
particularly in the West have learned from their experiences to overcome
the shortcomings in the functioning of the correctional system within
2 Al Gore, The Future, xv (Random House Publishing Group Company, New York, 2013). See also Joseph S. Nye, Jr., The Future of Power (Public Affairs, New York, 2011). For illustrative views of founding fathers on corporations see Justin Fox, “What the Founding Fathers Really Thought about Corporations”, Harvard Business Review (2010).3 In USA there is huge market for private prison operators to not only treat inmates as a source of prot making but also lobby through inuential representatives to frame harsh laws, see C. Hartney, and C. Glesmann, Responding to the growth of the private prison industry in the United States (National Council on Crime and Delinquency, Oakland, 2011). Similarly in UK we have opened market for private players to operate correctional business, see Richard W. Harding, “Private Prisons”, in Michael H. Tonry (ed.), Crime and Justice: A Review of Research, 265-269 (University of Chicago Press, Chicago, 2001). Similarly in Australia efforts were made to transfer prison functions into the hands of private operators, see Richard W. Harding, “Private Prisons in Australia”, 36 Australian Institute of Criminology, 2 (May, 1992). In Canada, the rst and only privately run prison opened in Ontario in 2001. It is a ‘super-jail’, with a capacity of 1,184 inmates, which is run by the US-based Management and Training Corporation, see Other countries like Belgium, German, New Zealand, Chile, Meanwhile; South Korea’s ministry of corrections has invited religious groups as well as private companies to bid for a 300 bed prison management contract. And in Israel, long regarded by stock analysts as a potential market, the current minister of justice supports full privatisation of the prison service and the immediate establishment of private prisons. Further countries like Costa Rica, Lesotho, Lebanon, Thailand, the Netherlands and Venezuela are at various stages of feasibility studies or tendering processes while others, such as Poland, Malaysia and Hong Kong are closely watching developments, particularly in the UK, see See S. Nathan, Private Adult Correctional Facilities: Fines, Failures and Dubious Practices (April 2000), available at: http://www.opseu.org/ops/ministry/report/section1.html (Last accessed on October 03, 2016).
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82 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
their respective jurisdictions. However it’s not all bright picture as it
appears, there are certain concerns too. This paper will therefore assess
the risks and benets of prison privatization as it is been witnessed in
some other parts the world.
II The privatization debate
Privatization as it has emerged within the public sphere is not a clear and
absolute economic proposition, thereby covering a wide range of
different activities, all of which imply a transfer of the provision of goods
and services from the public to the private realm. Also privatization
means different things in different parts of the world—where both the
fundamentals of the economy and the purpose served by privatization 4
may differ on multiple counts. The poor nancial condition of the public
sector is often responsible for as much as more than one-half or all of the 5
outstanding domestic indebtedness. Various factors are involved for
such a state, however with the passage of time governments, due to
continued worsening of conditions, States have had no option but to sell
off public assets to raise cash. Budgetary shortfalls often induce
4 Richard L. Lippke, “Thinking about Private Prisons”, 16 Criminal Justice Ethics, 34-35 (1997). Also see Oliver E. Williamson, “Public and Private Bureaucracies: A Transaction Cost Economics Perspective”, 15 Journal of Law, Economics and Organisation, 306 (1990) holds objection to privatization and argues that choice to privatise prisons advances objectionable normative vision of the State. The core governmental functions must be retained with the government for the simple reason of larger public interest. Further few scholars feel that even though the powers are transferred to private actors they are subject to constitutional constraints. The European experience towards privatization is somewhat different to what has been experienced in US, see Stijn Claessens and Simeon Djankov, “Privatization Benets in Eastern Europe”, 83(3) Journal of Public Economics, 307-324 (2002), Stijn favours privatization on the basis of state owned enterprises rather than the US model of contracting out. See also Private contractors oftenly in US do escape the civil-service protection rule, besides conict of interest and ethics rules, which applies only to the public employers. See also Jack M. Beermann, “Administrative Law like Obligations on Privat[Ized] Entities”, 49 UCLA Law Review, 1717-1762 (2002) (courts in US though have evolved reasonable restrictions on private actors through evolving laws of tort, contract and public nuisance, which is hard to prove in courts, having reasonably high standards as compared to public actors).5 See Raymond Vernon (ed.), The Promise of Privatization: A Challenge for American Foreign Policy (Council on Foreign Relations, New York, 1988). See also Prakash Sharma and Gautam Gupta, “Pretentious Privatization: Public Law Limitation of Government Functions”, (forthcoming).
83
administrators to consider privatization as a means to avoid higher taxes
or larger cuts in services. But is it the only reason for countries to opt for
privatization?
Surely there will be other reasons; one cannot discard the impact of
globalization. Market is taking control over functions necessarily meant 6
to be done by the State. There appear reasons and the most often cited 7
motivation for contracting out is to achieve operating cost savings,
followed with blocking of labour problems by weakening unionized 8government employees. Having said this, questions to creep in, do
private entities believe and bring competition into picture? And while
bringing competition, can the primary motto of prot gain be neglected?
Propounders argue that private enterprises will cut costs and improve
quality in an effort to gain prots and compete for more government
6 See Hans Lindahl, Fault Lines of Globalisation: Legal Order and the Politics of A-Legality 56,58 (Oxford University Press, Oxford, 2013); Gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford University Press, Oxford, 2012); Kai Moller, The Global Model of Constitutional Rights (Oxford University Press, Oxford, 2012), Jurgen Habermas, “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?”, 29(6) Political Theory 766-781 (2001). See also Oren Perez, “Using Private-Public Linkages to Regulate Environmental Conicts: The Case of International Construction Contracts”, 29(1) Journal of Law and Society, 84 (2002); Globalisation also posses numerous question to constitutional scholars, See Marcelo Neves, Transconstitutionalism (Hart Publishing Ltd., Oxford, 2013); Prakash Sharma and Manoj Kumar, “Globalisation, Indian Market and the Consumer”, 4(9) South Asian Journal of Marketing and Management Research, 31-42 (2014).7 John Vickers and George Yarrow, “Economic Perspectives on Privatization”, 5(2) Journal of Economic Perspectives 111-132 (1991). For constitutional limitations, see Prakash Sharma, “Prison Privatization: Constitutional Limitations on Privatization of Governmental Functions”, (forthcoming).8 J.D. Levy (ed.), The State after Statism: New State Activities in the Age of Liberalization (Harvard University Press, Cambridge, 2006). The paradox of the free economy and the strong state has made states power weakened and in favour of the large corporation, which has obtained an unprecedented degree of power and inuence. It has now become imperatively much clear that it is impossible to envisage an economy that is not dominated by giant rms and in which they are unable to translate economic power into a political inuence. This way governments cannot be trusted at least not when they will be and are responsive to the rms interests and needs, see C. Crouch, The Strange Non-Death of Neo-Liberalism (Polity Press, Cambridge, 2011). See also C. Jones and T. Novak, Poverty, Welfare and the Disciplinary State (Routledge, London, 1999); T. Jones and T. Newburn, Policy Transfer and Criminal Justice (Open University Press, Chichester, 2006); G, Johnstone, “Penal Policy Making: Elitist, Populist or Participatory”, 2(2) Punishment and Society, 161-80 (2000).
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84 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
contracts. Government agencies, on the other hand, will pursue other
objectives, such as increased employment or improved working
conditions for government employees—initiatives that only result in
higher costs, poorer quality, or both.
Diminishing governmental control
Another concern while examining effect of privatization
is—government control. Privatization can simply reduce the size of the
government. Fewer government workers and fewer people supporting a
larger role for government would mean less of a drain on the nation’s 9budget and overall economic efciency. Over the years, propounders of
privatization have found sympathetic ears, thereby advocating for its role 10
in both public assets and public services since the late 1990s. Interesting
is to note the language used in its admiration, designed specically to
push the hot button of the average taxpayer (even government)—the
propounders claim numerous advantages of privatization. It is suggested
that the costs of government would be greater without privatization.
Thus, forming a t case for countries where many of the utilities and basic
industries are state-owned—a ripe target for privatization.
9 Privatization viewed as a process of reducing the size of the government, see Harvey B. Feigenbaum and Jeffrey R. Henig, “The Political Underpinnings of Privatization: A Typology”, 46 World Policy, 185-208 (1994), it was contemplated in the work that, ideologically privatization will systematically aims to lower peoples expectations, reduce public sector oversight, and transform the interest group landscape to make it less supportive of governmental growth. See also the process of privatization involving contracting out, incentives, principle agent relationship and there moral implications, see Antoine Faure-Grimaud and David Martimort, “On Some Agency Costs of Intermediated Contracting”, 71(1) Economic Letters, 75-81(2001); Pierre Picard, “On the Design of incentive Schemes Under Moral Hazard and Adverse Selection”, 33(3) Journal of Public Economics, 305-331 (1987); John Donahue, The Privatization Decision: Public Ends, Private Means (Basic Books, New York, 1989).10 See Parmanand Singh, “State, Market and Economic Reforms” 18 Delhi Law Review 100-10 (1996). See also S.S. Singh and Suresh Mishra, “State and Market: A constitutional Analysis”, 18 Delhi Law Review 46-55 (1996); A. Ahmad, Globalization and the Nation State, 44 (Eastern Book, Lucknow, 1996). See in Delhi Science Forum v. Union of India AIR 1996 SC 1356, wherein Indian Supreme Court held “Privatization is a fundamental concept underlying the questions about the power to make economic decisions…”
85
11See Paul Starr, The Limits of Privatization (Economic Policy Institute, Washington, 1987). See also Michael J. Sandel, What Money Can’t Buy: The Moral Limits of markets 3-4 (Farrar Starus and Giroux, New York, 2012).
No srvice is immune
The privatization debate has made one thing clear; it has softened the
distinction between private and public domain. No service is immune
from privatization. World as a whole has accepted that a shift in
ownership or control from public to private hands will necessarily lead to
cheaper, better services for the citizens. How far has this benetted the
Indian society is debatable and would require another paper to dwell
upon. However, the prospect of private corporations owning and
operating prisons for adult offenders raises questions of costs and
competition.
While acknowledging that privatization may make sense on economic
grounds, the problems of insufcient competition and monitoring raise
some concerns. Who monitors the effects of private incarceration? What
standards are considered? What is required is a reasonable appraisal of
alternatives which needs to weigh concerns of justice, security, and 11citizenship. The concern of corrupt practices adds further doubts on
their involvement. But at this point it seems almost impossible to de-
couple privatization, since no service or sector is left immune from its
tableau. What seems logical is that privatization decisions should be
based on pragmatic analyses of whether ends can best be addressed by
public or private providers. The ends need not be limited to efciency;
they need only be clearly specied in advance.
III The blurred public-private distinction
Is there any clear cut distinction between a public and a private debate? In
the market economy the distinction has been blurred to the extent that
many of the public functions which were meant specically for the public
entities are now been taken care by the private corporations. Market has
actually dissolved this distinction, and even theorists and lawyers many a
times face notorious difculties in their efforts to draw the line between
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86 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
12private and public. The prevailing approach amongst the market
believers is that there is no clear division, rather a mere continuum,
between private and public body. The same distinction which has no
normative basis is used merely for the purpose of descriptive in nature. In
the simpler words, the moment the State has to show its presence or claim
or acquire something, the issue of public-private creeps in and nothing
more.
Market sense of viewing society as buying chip or dollar sign will do no
good, in fact it would be worrisome schema which needs immediate
corrective manoeuvre. In terms of market an activity will be treated
private if it is free from all the limitations, for e.g. the employer is free to
employ his or her discretion regardless of the interests of others, and an
activity will be treated as public if the employer (generally State) is
subject to such limitations which compels it to consider the interests of
all. Therefore an activity which is subject to some limitations would
become public otherwise not. Market proponents believe that the
limitation on functions is not an important criteria of modern day
functioning of affairs—be it public or private. These contrasting claims
have made the distinctions blurred, so much so that for market, there
appears no distinction in the setup established by them and the one by the
State. However, this argument is loosely constructed in many senses,
rstly, the limitations imposed on State are not market specic or self
imposed (as it in the case of private corporations), besides do not hold the
view of few elites—but are commonly agreed upon, democratically
allowed and constitutionally approved limitations. Besides, it has the
backing from judiciary or else would be held unconstitutional. Secondly,
the source obtained for such a classication is Constitution of the land
12 See Duncan Kennedy, “The Stages of the Decline of the Public/Private Distinction”, 130(6) University of Pennsylvania Law Review, 1349-1357 (1982); Ruth Gavison, “Feminism and the Public/Private Distinction”, 45(1) Stanford Law Review, 1-45 (1992). Many a times the argument taken is with regards to the efciency, see Andrei Shleifer, “State Versus Private Ownership” 12(4) Journal of Economic Perspectives 133, 141-50 (1998), Andrei while analysing politics of government ownership and privatization notes that political considerations not only strengthen case for privatization, but in fact drive decision to privatise.
87
and if not the Constitution then some other formally agreed upon laws,
accepted by all. Thirdly, the intent of public function is betterment of all
or for maximum number of people, whereas in the private sector, the
intent is prot making. Having said that, is there any private entity in this
world where the employees benet is taken as a prime concern? Answer
would be no, simply because motto is for the maximization of prot
(benet for the corporation) and not for the benet of society as such.
Even assuming that there exists no distinction between the two (public
and private) the need for publicization of privatization as a means of
incorporating public norms into private entities, explains that there is
distinction between the two and the need is to bring much of the public 13
norms in the private realm. Having said this, one would be in no
13 Jody Freeman, “Public Values in an Era of Privatization: Extending Public Law Norms through Privatization” 116 Harvard Law Review 1285 (2003). Jody suggests:Privatization can be a means of ‘publicization,’ through which private actors increasingly commit themselves to traditionally public goals as the price of access to lucrative opportunities to deliver goods and services that might otherwise be provided directly by the state.For further readings favouring such a step. See also Clifford J. Rosky, “Force Inc.: The Privatization of Punishment, Policing, and Military Force in Liberal States”, 36 Connecticut Law Review 969 (2004); Paul R. Verkuil, “Public Law Limitations on Privatization of Governmental Functions”, 84 North Carolina Law Review 397, 402-06 (2006); Jody Freeman, “The Private Role in Public Governance”, 75(3) New York University Law Review, 543-675 (2000), Jody argues that “no purely private realm and no purely public one…only the set of negotiated relationships between the public and the private.” For argument see J.M. Balkin, “Populism and Progressivism as Constitutional Categories”, 104 Yale Law Journal 1935-1969 (1995), Balkin says:The point is not to abolish the distinctions between the concepts like public and private power.…The goal rather is to understand these boundaries as more exible…it is a fool’s errand to think that we can abandon the distinction between public and private, between positive and negative liberty, or between government action and inaction. Whenever we attempt to cast those distinctions aside, they simply return in other forms. They are what I have called in other contexts nested oppositions; conceptual opposites whose intellectual coherence depends in an uncanny way on the existence of their opposite numbers.See also Michael Rosenfeld, “Rethinking the boundaries between public law and private law for the twenty rst century: An Introduction”11(1) International Journal of Constitutional Law, 125 (2013), Michael states The distinction between public law and private law has been both ever present and unwisely in civil law as well as in common law jurisdictions. Kelsen found the distinction useless for a general systematisation of law” and Paul Verkuil has remarked thatIf the law is a jealous mistress , the public-private distinction is like a dysfunctional spouse….It has been around forever, but is continues to fail as an organising principleSee Paul Vermeil, Outsourcing Sovereignty: Why Privatization of Government Functions threatens Democracy and What we can Do About it, 78 (Cambridge University Press, Cambridge, 2007).
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confusion over the authority of law over the acts and duties of private
employee and a public employee. On liability and obligation, the public
sector is in a better position to compensate for any infringement of rights
on its part rather than the private employee. Further, there appears a
considerable amount of social and economic differences between
personals owned and services granted through a private entity than to the 14public. Nevertheless, the basic distinction is always left apart, and the
practical scenario makes it clear that privatization is spreading, and over
the course of time, who knows the public perceptions towards
privatization over the course of time do change too.
The argument of essentially core functions relates not just above all to
mere values. No amount of debate or evidence will change the minds of
those who see privatization as fundamentally objectionable on this basis
or for those who see privatization justied, irrespective of the values.
However, in the United States this debate has been lost; so much so that, it
has barely got off the ground and same would be lost in any country 15
where market has become the means as well the ends for the society. A
more productive line of analysis, for market propounders revolves
around the question of allocation and the administration of punishment,
where the issues are tangible and improved accountability through 16market is thought to be attainable. What they see is, so long as the
private prisons adopt a well dened correctional policy with sufcient
14 See Richard L. Lippke (1997), supra note 4 at 35, Richard favouring market ideology holds that Prisoners in private facilities may wonder whether what they are compelled to do is for their own good or is calculated to promote the bottom line of the corporations that own the facilities. In fairness, similar questions may arise within public prisons, since state-employed prison administrators and guards have interests of their own to protect. See also Ronald A. Cass, “Privatization: Politics, Law, and Theory” 71 Marquette Law Review 449-523 (1988), Ronald notes that while every State function or service much like in India, like housing, education, health care, policing, welfare, transportation, postal service, and dispute resolution—has a private counterpart, the law subjects only State actors to constitutional limits. The traditional justication for such a differential treatment is that government power is uniquely coercive.15 See Jody Freeman, supra note 13 at 1286.16 Susan Strange, The Retreat of the State: Diffusion of Power in the world Economy (Cambridge University Press, Cambridge, 1996), Susan argues that non state actors increasingly impinging upon traditional State domains.
89
oversight through, both judiciary as well as the government, such
delegation seems unobjectionable to the constitutional norms. Further,
with the idea of governing through crime especially with a large
percentage of adults in correctional custody would be a serious risk,
especially in the era of signicant prison and police expansion, where
privatization on one hand do offer taxpayers some attractive cost savings 17options, while on the other hand the social security for many is snatched.
Of course, private prisons will offer a variety of options to the State—be
it alleviation of excess crowding in the prisons, competition to State run
prisons, better quality (in terms of technological advancements and
institutional functioning), better services and programmes, innovative
ideas and so on. But one cannot expect respect to basic human rights,
needs, values by a private corporation, who treats inmates as
commodities (nally of some value, otherwise thought as a burden for the
society as such).
IV Publicization of privatization
When prots overtakes values and surpass guarantees—both
constitutional and human—there needs some line to be drawn. Bringing
public values to private functioning is the answer to balance the approach
in which arguments for or against privatization can be settled. There is
neither a purely public nor a purely private realm, in fact both are
interdependent. Globalization is not merely a political decision, as many
proclaim it to be, it is also a solution or method of harmonising various 18
conicting interests. It entails specic types of work by a large number
of distinct institutions (corporations). In this section we will analyse
17 See David Scott, “Why Prison? Posing the question” in David Scott (ed.), Why Prison? (Cambridge University Press, New York, 2013) (Scott explains through his work the entire logic behind the need and usage of prisons in any country). See also Harold I. Abrasion, “A fth branch of Government: The Private Regulators and their Constitutionality”, 16 Hastings Constitutional Law Quarterly, 165 (1989), it is interesting to see a constitutional change and formation of international government. See also Louis Jaffe, “Law Making by Private Groups”, 51 Harvard Law Review 201 (1937); Jody Freeman, “Private Parties, Public Functions and the New Administrative Law”, in David Dyzenhaus (ed.), Recrafting the Rule of Law, 331-369 (Hart Publishing, Toronto, 1999).18 See Hans Lindahl, supra note 6 at 56.
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whether publicization of privatization will be an answer to many
concerns posed by market economy.
In this globalised era, where market is taking control over functions
necessarily meant to be done by the State, the concept comes to a rescue.
Bringing market under the ambit of public laws draws efciency along
with accountability. Privatization can be a means of publicization
methods—especially considering the criminal justice system—through
which the private actors would commit themselves to traditionally public
goals as the price of access to lucrative opportunities to deliver goods and 19
services that might otherwise be provided directly by the State.
However, it is also possible to hold that we are dealing with a violation
that exceeds the scope of constitutional norms, based upon social
contract on which the existence of the State rests upon. Releasing the
State from the monopoly granted to it with regard to the use of force in
order public interest undermines the principles upon which the entire
social and constitutional foundations of the State rest. Public actors have
a duty to explain themselves, either through an administrative law (duty
to give reasons) or through statutes granting citizens access to 20information (like in India we have Right to Information Act, 2005).
Public actors in the India, United Kingdom and Canada do face
19 Jody Freeman (2003), supra note 13 at 1285. See also Clifford J. Rosky, supra note 13 at 969. See also Rachel C. B. Antonuccio, “Prisons for Prot: Do the Social and Political Problems have a Legal Solution?”, 33(2) IOWA Journal Corporation Law, 577 (2008). On discussion of self regulation see, Sam Scott Miller, “Self-Regulation of the Securities Markets: A Critical Examination”, 42(3) Washington and Lee Law Review, 853-887 (1985); Marianne K. Smythe, “Government Supervised Self-Regulation in the Securities Industry and the Antitrust Laws: Suggestions for Accommodation”, 62 North Carolina Law Review, 475 (1984). Analysing the short comings of self-regulation see, Neil Gunningham and Peter Grabosky, Smart Regulation: Designing Environmental Policy, 137 (Clarendon Press, Oxford, 1998).20 A classic example of incorporating democracy as a right is the formation of Right to information Act, 2005. For an extensive discussion of the implications of private provision for administrative law, see Jody Freeman (2000), supra note 13 at 664-73. Also see Ahmed A. White, “Rule of Law and the Limits of Sovereignty: The Private Prison in Jurisprudential Perspective”, 38 American Criminal Law Review, 111, 112 (2001)It is stated that:The intrusion of prot motives into management decisions is a pervasive problem with private prisons….it encourages not only the employment of under trained and disinterested employees but aggregate reductions in stafng—practises which in urn account in part of elevated levels of abuse, inmate-on-inmate violence.Clifford J. Rosky (2004), supra note 13 at 879, 903. Also see Jody Freeman, “Extending Private Law Norms Through Privatization”, 116(5) Harvard Law Review,1285-1352 (2003) (instead of seeing privatization asa means of shrinking government, its can be seen as a mechanism for government to reach into realms traditionally through private). See also M. Bovens, “Public Accountability.” in Ewan Ferlie, Laurence E. Lynn, Jr. and Christopher Pollitt (eds), The Oxford Handbook of Public Management, 7-26 (Oxford University Press, Oxford, 2005).
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constitutional constraints that private actors do not and it is on this basis
the access to information holds a limited play from a private entity as
compared to a public authority. Professor Minow considers it
fundamental that accountability be preserved in the presence of private
participation in public sectors; this will in turn promote a variety of other 21values like democracy, equality, and pluralism. Besides conning,
accountability with public actors in the process of administration of
market, would restrict involvement of certain matters which might be
found in the other countries, notably with regards with the considerations
of expediency in the timing or scope of remedy, but any such step would
involve great deal of risking populace.
At the same time, the public prison staff of countries like USA, UK,
Australia do not necessarily act as public in the strict-legal sense as 22compared to private prison staff, and thus the assumption that there is a
signicant difference in the prison guard’s actual motivations is
questionable in the present private or public debate. However, the only
concern in such a situation would be with regards to social benet
available with the public servants, whereas for a private 23servant—concerns are other than just monetary in nature. All
21 Martha Minow, Partners, not Rivals: Privatization and the Public Good 12 (Beacon Press, Boston, 2002).22 Both types of employees work to earn a living, both are interested in fullling their professional goals and developing their career, and both are interested in the success of their institution. Both public as well as private workers often earn on the basis of their achievements and classifying them as public rather than private is difcult in that basis. See See also Prakash Sharma, Prison Privatization: Exploring Possibilities in India (forthcoming). 23 Richard L. Lippke (1997), supra note 4 at 35. Prisoners in private facilities may wonder whether what they are compelled to do is for their own good or is calculated to promote the bottom line of the corporations that own the facilities. In fairness, similar questions may arise within public prisons, since state employed prison administration and guards have interests of their own to protect.”). See also Sol Picciotto, Liberalisation and Democratisation: The Forum and the Hearth in the Era of Cosmopolitan Post-Industrial Capitalism”, 63(4) Law and Contemporary Problems, 63, 157-159 (2000) (favouring privatization and holding the growth of new forms of regulation to the practise of privatization); Gary Peller, “Public Imperialism and Private Resistance: Progressive Possibilities of the New Private Law”, 73(4) Denver University Law Review, 1001, 1007 (1996). See Simon Domberger and Paul Jensen, “Contracting Out by the Public Sector: Theory, Evidence, Prospects”, 13(4) Oxford Review on Economic Policy, 67,68 (1997) (“Contracting out…. means opening up to competition a set of economic activities which were previously immune from it….The distinctive feature of contracting out is the element of ex ante competition—-competition for market as opposed to competition in it”). On the pervasive role of private parties in governance, see Werner Z. Hirsch, Privatising Government Services: An Economic Analysis of Contracting-Out by Local Governments, 24-25,128 (University of California, Los Angeles, 1991). See Tony Prosser, “Social Limits to Privatisation”, 21(1) Brooklyn Journal of International Law, 213-242 (1995), identies mechanisms such as licensing, rate regulation, and standard-setting as instruments of control over private rms. Focus rather on agency would be harmful and hence should be for the tools and technologies private entities apply, see Lester M. Salamon, “The New Governance and the Tools of Public Action: An Introduction”, in Lester M. Salamon (ed.), The Tools of Government: A Guide to the New Governance, 1-10 (Oxford University Press, New York, 2002).
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employees of a corporation that operates a prison cannot be dened as
public servants, because they work for a private individual but a public
personnel works for the public; a private personnel is answerable to the
private individual but a public personnel is answerable to the constitution
of the land. They are legally required to respect rights of prisoners, and
may infringe upon such rights only as far as the public interest justies it;
even if the act is justied, he or she is answerable to courts for the same. In
essence, it can be realised that law does not grant any freedom to those
who work for a private corporation in comparison to the legal
requirement imposed on a prison guard who works in a public prison, but
one is answerable to constitutional courts in all occasion other only in
some limited occasions.
Accountability
Privatization may lead to the demand of greater public accountability
from the private entities (if taken in a healthy way), that are empowered to
implement governmental powers, as well as from those public ofces 24
that are in charge of guiding these entities and supervising them.
25In the words of Martha Minow, while explaining accountability, states:
Accountability in this sense means being answerable to authority that can
mandate desirable conduct and sanction conduct that breaches identied
obligations. In a democracy, the ultimate authority should be the general
population, organized as voters and served by elected representatives,
24 See Martha Minow, “Public and Private Partnerships: Accounting for the New Religion”, 116 Harvard Law Review, 1229-52 (2003). Minow states
“Whatever the normative limitation of the arguments favouring partnerships, the trend is undeniable. State, local, and federal governments are widely one. Skeptics should not simply decry this reality, but deal with it by demanding public.” Also see Connie Mayer, “Legal Issues Surrounding Private Operation of Prison”,
22 Criminal Law Bulletin 309-320 (1986).25 Martha Minow (2003), id. at 1236. Also see in favour of privatization, Daniel Guttman, “Public Purpose and Private Service: The Twentieth Century Culture of Contracting Out and the Evolving Law of Diffused Sovereignty”, 52 Administrative Law Review, 859, 879-81 (2000) (recounts privatization in US has made compliance with congressionally designated public purposes); Tony Prosser, “Public Service Law: Privatization's Unexpected Offspring”, 63(4) Law and Contemporary Problems, 63, 66-72 (2000) (discussing the development of independent regulatory authorities in UK, following the privatization of key utilities. Favouring Privatization in this process Tony holds that an emerging body of public service is formed where service standards and consumer protection obligations are imposed on private entities).
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attorneys general, school boards, and tax enforcement agencies. To
satisfy the basic requirement of public oversight, government bodies that
use private means to fulll their obligations should evaluate those private
means and report on and take responsibility for the results. Thus, a
government that contracts with a corporation to run a prison or that
permits redemption of welfare vouchers through a religious charity
should be held responsible for the consequences resulting from such
contracts.
The exploration of accountability in such a way not only combines public
and private energies but also offers greater possibility of utilising
available resources will be a better approach. The true essence of
democracy lies in public involvement and accountability which can be
done only through public reporting. The major decisions about public
resources (even acquired by private entity), must be formed collectively
on the basis of experiences, with the knowledge and participation of the
citizens—then only the Constitution survives its true test for democracy,
equality. In India the endeavour to enhance the quality of the existing
prison administration deserves to go on with greater verve. Social audits
of private corporations by citizens, in whatever form they are designed, is
the need of the hour, especially if India opts for privatization of prisons
(which would be disastrous decision in every sense). The present state of
Indian prisons, only highlights stories of escape or proved corruption
among the jail staff, while nothing else is known to an average citizen (as
to the state of functioning of prisons). When the state of public
functioning is so disastrous, imagining it under a private operator will
bring nothing but goose bumps. There appears immediate need for
conducting tour of ordinary citizens to selective jails or prisons on
periodic intervals, which will highlight lacunas in the existing
functioning. There can never be a total cover up that distorts the 26fundamental realities of a prison setting in India. We see abuses in the
26R.K. Raghavan, “Private Prisons”, 29 (16) Frontline (August 11, 2012). For better understanding of fundamental realities in Indian prison system, see Prakash Sharma, supra note 22 at chapter 4. See , Shatrughan Chauhan v. Union of India 2014 (1) SCALE 437; Nilabati Bahera v. State of Orissa AIR 1993 SC 1960.
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public system; would that mean this system is wrong of accountability?
No, accountability holds the only difference between private and public
functions (in modern global market economy system). Besides, the
relationship between crime and economics in the market world has not
hidden, which nds rise in incarceration rate as and when the process of 27criminal justice system is privatized. In India both public as well as
private entities are on the same footing of not accountable to general
masses but at least private players have to be accountable to the market, 28
or else lose its share. Public sector accountability is limited in that
regard. Further having seen the pervasive and varied role played by
private actors in all aspect of governance; need to relook into the aspect of
public-private debate. Private contributions to regulation range from the
merely advisory to the full edged assumption of policy making 29
authority.
The nal end for any institution like government is to maintain and
administer the existence of the body politic and also secure it; to protect
it, and to furnish the individuals who compose it with the power of
enjoying, in safety and tranquility, their natural rights and the blessings of
life; and whenever these great objects are not obtained, the people have a
right to alter the government and to take measures necessary for their
27 See Beverly A. Smith and Frank T. Morn, “The History of Privatization in criminal Justice”, in David Shichor and Michael J. Gilbert (eds.), Privatization in Criminal justice: Past, Present and Future, 3-17 (Sage Publications, Thousand Oaks, 2001).28 Martha Minow (2003), supra note 24 at 1263. Minow states “Private economic markets generate accountability through the operation of supply and demand, which tests the viability of ideas, products, and processes by their ability to attract and maintain a sufcient number of purchasers to meet costs and generate desirable prots.” See also Jonathan Morgan, “Liability for Independent Contractors in Contract and Tort: Duties to Ensure that Care is Taken”, 74(1) CambridgeLawJournal 109 -139 (2015). In US Courts have recognised implied private rights of action. See Richard B. Stewart and Cass R. Sunstein, “Public Programs and Private Rights”, 95(6) Harvard Law Review, 1193-1322 (1982). A strong case for bringing public norms into private realms would be protection against gaming and xing behaviour of independent contractors, John Braithwaite, “Rewards and Regulations” 29(1) Journal of Law and Society 12-26 (2002).29 See Douglas C. Michael, “Federal Agency use of audited self-regulation as regulatory technique, 47 Administrative Law Review, 171 (1995).
95
30safety, happiness and prosperity. Weaknesses in the accountability of
any private regime stems in the part from government failure. A private
system of working demands fullment of contractual obligations
between State and the private corporation. A contractual system of
administration relies much on the judicial administration of private
contract law at the charge of supervising agency rather than judicial
administration of administrative law doctrines at the command of private 31
citizens. One needs to understand that constitutional constraints along
with a detailed and imposing procedural laws do not govern private 32
decision making process. Therefore, the route required is to include
heightened judicial scrutiny to prevent any violation of inmates basic
rights besides the rights of prison personnels and the police system. Such
scrutiny may well result in not only invalidating specic actions taken by
a private corporation or requiring it to compensate those who were
subject to its misuse of force, but also in a review of the activities of the
supervising authorities. Moreover, in appropriate circumstances, when a
repeated practice of human rights violation is evident, there may be a 33basis for invalidating the privatization itself. Furthermore, private
corporations do have a primary goal of making prots; and saving money
in their operations becomes daily practise. This overtakes basic
30 John Adams, Preamble to a draft constitution for the Commonwealth of M a s s a c h u s e t t s , 1 7 7 8 . F u r t h e r r e a d i n g , a v a i l a b l e a t : home.hiwaay.net/~becraft/AlterRight.html (Last accessed on 21 May, 2016). 31 On questioning as to the role of legislatures, courts, and the public interest see, Frank H. Easterbrook, The State of Madison’s Vision of the State: A Public Choice Perspective”, 107 Harvard Law Review 1328 (1994). For Argument see John D, Donahue (1989), Supra note 9 at 11-12, John argues that:
“Values of efciency and accountability of public and private arrangements in organisational architecture should be reorganised in a sense which will best deliver public goods and services, but also explains that privatization does not guarantee accountability, in a sense that it have reduced the ambit of access to information which was easily available under public ownership. For conditions under which privatization thrives.See Maxim Boycko, Andrei Shleifer and Robert W. Vishny, A Theory of Privatization, 106(435) Economic Journal, 309-319 (1996).32 Martha Minow, supra note 24 at 1264.33 Richard W. Harding, “Private Prisons”, in Michael H. Tonry (ed.), Crime and Justice: A Review of Research 265-269 (2001). Also see Sharon Dolovich, “State Punishment and Private Prison” 55(3) Duke Law Journal 437-546 (2005).
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minimum requirements; focus shifts to cost cutting and measures are
adopted which benets such an approach.
Although private services are denitely here to stay (thanks to the market
economy and its working) but what needs to be done is a better research
as to the needs of our society along with stricter and vigilant control of
state on their working and infusion of public norms in private realms is
must. Fact is they are not going to displace public entities but denitely
going to pose a serious competition. And market thrives with competition
because they can survive (have to) it by various means (hook or crook)
and then slowly and gradually acquire the control from public authorities.
The need of hour with respect to government’s role, is to modify their old
conceptions of policymaking in such a way which can counter market
more efciently and that too within the framework of constitutional
principles. And the method of resolving this issue would be public
framework of accountability, meaning—public in the source of its norms 34
and in the overreaching authority and enforcement power. Private
entities have some tangible advantages and benets but pose some
serious political and humanitarian risks. These risks tend to become
greater as the motive of cost reduction becomes increasingly
predominant (a factor which would work wonders especially in India). It
is for this reason that, of the three mature private prison jurisdictions
(United States, United Kingdom and Australia), the United States 35
experience is the one that continues to be scrutinized most closely.
Similarly, in 2010, the Israeli Supreme Court, annulled legislation to 36establish a privately operated prison. What does it convey? These
instances simply reinforced constraints against delegating essential
governmental powers to private entities and developed more logical and
34 Martha Minow (2003), Supra note 24 at 1266.35 In United States decisions like Richardson v. McKnight 521 U.S. 399 (1997) and Correctional Services Corp. v. Malesko 122 S. Ct. 515 (2001), Supreme court held that private prisons are as accountable if not more, then the public ones, and have set up high standards in that regards.36 The Academic Centre for Law and Business v. Minister of Finance , (November 19, 2009 HCJ 2605/05).
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practical answer as to the issue concerning transfer of essential State’s
functions into the hands of private players.
V Conclusion
Though there appears no doubt that an effective use of privatization does
improve efciency, increase competition, and reduce expenditures in
some of services that are essentially not core functions of the State.
Moreover, economic efciency alone would hold no justication for
transforming correctional services into the hands of private operators.
The democratic functioning, unlike the market, is an arena for explicitly
articulating, criticizing, and conforming preferences; it pushes people to
make a case for interests of all rather than their own. Privatization
weakens this public space—the space for information,
“
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PRESS CLAUSE AND SPEECH CLAUSE CONSTITUTIONAL INTERPRETATION IN INDIA AND AMERICA:
COMAPARATIVE ANALYSIS
Meera Mathew*
Abstract
This article analyses the very jurisprudential and functional difference between speech
clause and press clause under the “right to freedom of speech and expression”. According to
the writer, though both these clauses are read and interpreted equally under many
Constitutions including India, it needs to be interpreted differently by putting the press or
media in a prominent place. It is stated that the speech right available to citizens does not
have a big societal duty unlike the press since the latter being the carrier and disseminator of
information to society as a whole..To substantiate this argument, article 19 (1) (a) of the
Indian Constitution and the rst amendment under American Constitution are compared and
scrutinised to demarcate the difference. Various judicial interpretations on the same are also
analyzed. It is concluded that, with the continuing technological boom plus social media
resulting every individual act like press to disseminate any ideas including misinformation,
will result in irreparable harm to the society. Hence it is suggested that press on the basis of
its function, needs to be re-dened and re-interpreted so that those who handle this function
need to be placed in a better footing.
I Introduction
HUMAN BEINGS cannot survive devoid of communication. Man,
being a social animal, has to live in companionship with other human
beings and state for which he needs to put across his viewpoints and
opinion. These individuals comprising population in turn build that
nation’s unique identity and a mechanism of social assimilation. Speech,
hence, is an act and exchange of words, feelings, emotions or expression
between all individuals and forms the integral part of society. This makes
the speech a distinguishing right as right to freedom of speech or
expression that confers an individual a right to express boldly, vigorously 1and prudently.
The fullment that arises out of speech is related to individual’s skill to
imagine, think and foresee. Hence need to recognise speech and
* Research Scholar, Indian Law Institute.1 Harry H. Wellington “On Freedom of Expression” 88 The Yale Law Journal 1105 (1979).
99
expression so as to put across messages has a corresponding effect. From
the pre-historic ages, adequate safeguard had been provided to one’s 2expression. However, many legal systems vary in their safeguard of
freedom of speech given the profound historical dissimilarities.
Depending upon the political, social, cultural, economic set up, the
freedoms available to citizens vary. The implication of freedom of speech
and expression in a society had been analysed by various philosophers
differently and that makes it to the theories of freedom of speech and 3
Expression.
When the nations were formed demarcating the state, it was then
necessary to provide the maximum interests to individual. Moreover,
construing the philosophy surrounding the theory of equality, it can be
analysed that every human being is at liberty to corresponding view to
distribute in common decisions those inuence him. From these
perceptions there originate the right of the human being to access to
information; to articulate his own statement; to converse his desires,
keenness and priorities; thus can come in terms with the very objective
and essence of his life and his survival. For these reasons, many
constitutions have adopted Freedom of Speech and Expression as a vital-
fundamental right.
II American rst amendment vis a vis article 19 (1) (a)
Freedom of speech and expression has been used interchangeably as 4“freedom of opinion and expression, freedom of the press and of
5 6publication, freedom of information, liberty to publish one’s ideas in
2 Josiah Ober, “Socrates and democratic Athens: The story of the trial in its historical and legal contexts” Avaialble at: https://www.princeton.edu/~pswpc/pdfs/ober/070602.pdf (last visited on Oct 26,2016).3see, .Philip L. Judy, “The First Amendment Watchdog Has a Flea Problem” 26 Cap. U. L. Rev. 541-542 (1997).4See, Article 19 of United Nations Universal Declaration of Human Rights, adopted in 1948.5See, Article 27 of Chapter III, Fundamental Rights and Duties of the Residents of Hong Kong Basic Law.6See, Article 17, Charter of Fundamental Rights and Basic Freedoms, under the Czech Constitution
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100 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
7print and in writing, freedom of communication of thoughts and of 8opinions’ and so on. This right has thus a wide ambit which includes the
freedom to hold opinions, freedom to impart information, the freedom to
receive information and even the freedom to dissent against the
democratically elected governments of the day. It is also related to free
thinking, imagination and deliberation which are prerequisites for a
human being’s self-realisation. It is considered to be the most cherished
fundamental right and therefore has been included under various
international covenants and most of the constitutions.
The rst amendment to the United States Constitution provides that:
“Congress shall make no law ... abridging the freedom of speech, or of
the press....”
This is often interpreted as absolute as it is widely comprehended that the
amendment forbids the government from intruding any one’s speech.
The ‘speech’ that is safeguarded by law comprises of a broad range of
expressive behaviour oral, written, pictorial and other expressive ways
that communicate an idea. However through the judicial opinions
rendered, it can be seen that the ‘symbolic speech’, such as ablazing the
ag at a protest rally, is not protected there, since it can be intertwined
with supplementary elements such as disruptive conduct or demeaning 9
behaviour It can be seen that some forms of speech may be proscribed
utterly whereas few speech modes are constrained comparing other
factors and some are regulated depending upon the circumstances at
which it occurs. For instance, there are various restrictions to the rst
amendment in terms of:
10i. Encouraging actual violence or harm;
11ii. Fighting words
7 Section 77 of Grundloven, Denmark.8 Article 11of the Declaration of the Rights of Man and of the Citizen, France.9 Jacob Weinrib “What is the purpose of freedom of expression?”67 U Toronto Fac. L. Rev. 165( 2009).10 See, Cox v. Louisiana, 379 U.S. 536, 55111 See, Chaplinsky v. State of New Hampshire 315 U.S. 568, 572 (1942).
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12iii. Actual dangers
13iv. Expression that institutes criminal or severe harassment
14v. Defamation
15vi. Obscenity
16 17vii. False advertising and many more such doctrines
Thus it can be realized the absoluteness of rst amendment is merely the
textual interpretation and in reality limitations are placed on the basis of
its content if the control passes “strict scrutiny” (meaning thereby if the
government demonstrates that the restraints provide “to persuade a
credible interest” and is “the least restrictive ways to further the 18articulated interest”).
Now, evaluating the Indian aspect, under the Constitution of India, it is
the article 19 (1) (a) that guarantees the ‘freedom of speech and
expression’ and it says:
“All citizens shall have the right to freedom of speech and expression...”
The most signicant case the Supreme Court of India dealt with to 19
interpret provisions of article 19 (1) (a) was Romesh Thappar case that
went on to the legality involved in Madras Maintenance of Public Order
Act, 1949. Soon, the court recognized that freedom of expression
included freedom to propagate ideas, requiring freedom of circulation 20followed by many other prominent cases.
12Murakowski v. University of Delaware, 575 F.Supp. 571,589 (D. Del. 2008)13Bachellar v. Maryland, 397 U.S. 564, 567 (1970)15United States v. Williams, 553 U.S. 285 (2008), against child pornography.16 In Valentine v. Chrestensen, 316 U.S. 52 (1942) the Supreme Court exempted commercial speech doctrine from any First Amendment protection.17Congressional Research Service, Report on Freedom of Speech and Press and Exceptions to the First Amendment (September, 2014).18 David A. Anderson “Freedom of the Press” 80 Tex. L. Rev. 429 (2001-2002).19Romesh Thapparv. State of Madras, 1950 SC 594.20Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana and others[(1988) 3 SCC 410 ], S. Rangarajan v. P. Jagjivan Ram &Ors[(1989) 2 SCC 574, The Secretary,�Ministry of information & broadcasting, v Cricket Association Of Bengal and Ors 1995 SCC (2) 161. Reliance Petro Chemicals Ltd. v. Indian Express Newspapers Bombay Pvt. Ltd A. I. R. 1989 S. C. 203
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This provision under Indian Constitution [i.e., article 19 (1) a] is not
absolute and it is to read with ‘reasonable’ restrictions under article 19 21(2). The phrase ‘reasonable’ has been interpreted as that involves
intelligent concern and consideration, i.e., the preference of a path which
reason utters. Laws which randomly or terribly march into the right
cannot be believed to hold the value of equanimity and unless it hits a
proper steadiness between the freedom and the social controls permitted 22it must be held to be wanting in that quality.” Regarding this, the
23Supreme Court in State of Madras v. V.G. Row, held as:
The Court should consider not only factors such as the duration and the
extent of the restrictions, but also the circumstances under which and the
manner in which their imposition has been authorised. It is important in
this context to bear in mind that the test of reasonableness, where ever
prescribed, should be applied to each, individual statute impugned and no
abstract standard, or general pattern of reasonableness can be laid down
as applicable to all cases.
Accordingly, a state restriction will be justied, if the restricted speech is
shown to have a silencing effect on some members of the community and
leads to an overall reduction in the scope of public discourse. The state is
justied in protecting the equal opportunity of minority groups to
participate in public discourse not ‘to further their self-expressive
interests but only as a way of furthering the democratic processes. In all
cases the critical issue is whether the particular regulation makes a clear
inuence to the ‘speech right goal’ of a more open and diverse public
discourse. The restrictions are placed with a notion that – similar to every
21 Article 19 (2) includes:i.� The integrity of Indiaii.� The security of the Stateiii.� Friendly relations with foreign Statesiv.� Public orderv.� Decency or moralityvi.� Contempt of courtvii.� Defamation or incitement to an offence22Chintaman Rao v. The State of Madhya Pradesh, [1950] S.C.R. 759.23 [1952] S.C.R. 597.
103
liberty that needs to be limited, free speech also needs restrictions. The
general belief is that if unrestricted full-edged communication is
provided, it might lead to chaos, the very purpose of free exchange of
ideas and knowledge will not take place. The recent case judgment that
dealt with this aspect is National Legal Services Authority v. Union of 24India & Others in which a transgender’s expression was analysed, it was
held:
“When the law contains ‘substantive’ restrictions with regard to the
exercise of the right, as well as ‘procedural’ provisions, the Court would
consider the reasonableness of both. In determining the substantive
reasonableness, the court has to take into consideration various factors.
Even a decision as to the reasonableness of a restriction imposed on one
of the rights conferred by article 19(1) cannot have much value as a
precedent for adjudging the validity of the restrictions imposed on
another right, because the reasonableness must depend on the cumulative
effect of the varying facts and circumstances of each case.”
For these reasons, the reasonable restrictions as incorporated in
‘Freedom of Speech and Expression’ were the need of the hour. The
Indian Constitution though does not illustrate the term “Reasonable
Restrictions”, the assessment of reasonableness has to be related to each
case and no universal model of reasonableness can be put aside which
would be appropriate in all cases. The term got its meaning through 25
various judicial decisions. On this scholar T. Emerson had stated:
“It is the duty of all the courts, before upholding such regulations, to
weigh the circumstances and to appraise the substantiality of the reasons
advanced in support of the regulation of the free enjoyment of the rights
of speech and press”.
III Speech clause and press clause: US and India
The principle of free speech and expression theory is deduced indeed
24AIR 2014 SC 1863.25T. Emerson, The system of Freedom of Expression, (Random House Trade, New York,1970).
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with the constitutive approach of the ancient Greeks to intrinsic good
unto itself that furthers individual self-fulllment of Immanuel Kant to J
S Mill’s liberal justication of speech for truth to market place of ideas
theory of American judge Justice O W Homes to democratic good
governance theory of Alexander Meiklejohn and many more.
Interpreting freedom of expression is a work in progress, since a
pluralistic approach is needed so as to admit of many arguments and
justications. Therefore, new means seem to be continually emerging
from the pens of legal philosophers.
It is seen that American Constitution rst amendment deals with two
clauses- Freedom of Speech and Freedom of press. Freedom of speech
and expression had been interpreted on the basis of its self-fullment 26 27 28
feeling, right to autonomy, democratic sustenance and discovering 29truth. These theories explain that contentment that stems from speech is
associated with the individual’s ability to imagine, envisage, and
engender thoughts. Only when the publishing became a recognized task,
scholars elaborated the free speech theory to include, freedom of press.
Thus the freedom of the press or media was derived from the freedom of
speech and expression and many modern-philosophers incorporated
media in their free speech theory.
One of the primary reasons for this inability to segregate between
constitutional safeguards for speech and the press is the dispute of its
credentials and qualications. In order to distinguish distinctive media
securities, the court must discover who or what the press is. Most of the
constitutions world-wide though guarantee freedom of speech and press
is included within speech, press was never given any privileged
treatment. It has been rightly observed by various scholars that, of the two
25 26T. Emerson, The system of Freedom of Expression, (Random House Trade, New Melville B Nimmer “Introduction-Is Freedom of the Press A Redundancy: What Does it Add To Freedom of Speech?” 26 Hastings Law Journal 639 (1975).27 Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. &Pub. Aff.213 (1972).28 Vincent Blasi “Democratic Participation and the Freedom of Speech: A Response to Post and Weinstein” 97 Virginia Law Review 537 (2011).29Oliver Wendell Holmes, “The Path of the Law,” in Collected Legal Papers (New York: Harcourt, Brace & Co., 1920).
105
provisions under rst amendment of US Constitution, speech has
received all responsiveness of judiciary, while the press has been
disregarded. Meaning thereby, for evolving a strong ‘speech clause
jurisprudence’, the Supreme Court has never recognized any
constitutional rights or protections based solely in the press clause.
However, press freedom is a right of signicant historical and
constitutional importance.
Dealing with the press clause, its underlying principle lies on the
rationale that everyone in the society should be able to obtain information
from every source, not merely from that are authoritatively accepted. The
meaningful purpose of the press is to offer the community with genuine
and precise information about the administration of public affairs. There
is no dispute on the function of press as it is the transmitter of news,
information, entertainment or social facts. Freedom of communication
and expression are ofcially through mediums such as the press or the
media including electronic media and published materials. The liberty of
the press as dened by Lord Manseld “consists in printing without any
license subject to the consequences of law”.
Hence, press connotes liberty to print and publish under a proper
structures after the proof-read and veracity check on facts which duly
checked by set of editors. It includes newspapers, periodicals and even
pamphlets so long that it is acting under the legitimate way of 30
disseminating information . Further, press could be denoted as one or
more division of media, dened either by task or structure. It had turned
out to be difcult in dening the press as earlier press have today adopted
a multimedia strategy of combining print, television, Internet, radio,
cable, and broadband into a single platform. In terms of format, method
of distribution, or form of organization even though the print media is
different, today’s press has begun distributing their entire result – be it
news, pictures, outline, and advertisements online.
Therefore, the prominence of press is disregarded by the Court to
30Lowell v Grifn, (1939) 303 US 444
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106 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
perceive the press clause as unique from the speech clause. Thus it has
excluded it from pondering other impending rights and safeguards that
could benet press speakers accomplish their unparalleled constitutional
purposes.
31As stated by Eugene Volokh,
When speaking of the ‘press’, the earlier jurists did not mean modern
mass communication mechanisms such as satellites, radio, WiFi, mobile
broad band networks and virtual clouds—technology that, has only a
eeting resemblance to the eighteenth-century process of printing.
IV Need to outline the press clause and give its due recognition:
It is thus observed that press clause and speech clause serve different
purpose. Press clause with its due acknowledgment to the task carried out
by the reporters and editors perform more responsible work for the sake
of society at large. Then comes, what forms ‘freedom of the press’? That
question cannot be answered without understanding the role or purpose
of the press, the working and functioning of reports or journalists, the
way news are drafted and so on. If the Press clause is a structural
provision designed either to support or to protect a press that adequately
serves democracy, it needs to be interpreted properly.
When the Speech clause stoutly guards discourse and opinions, the press
clause plays a role in newsgathering and disseminating it to public. The
press was, from the inception, comprised as unavoidably entwined with
news on public dealings. Consequently while members of the drafting
assembly may have sometimes labelled the press as a device that
anybody was permitted to use for any determination, their sustenance
endorsed a very unlike appreciative of what the press—and thus freedom 32of the press—demonstrated.
Democracy requires discussion, and discussion requires some consensus
about the themes to be deliberated upon. What the press does, serviceably
31 Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. PA. L. Rev. 459 (2012).32VishwanathI yer, The Indian press 45 (Padma Publications, Bombay, 1945).
107
is instituting this community discourse. The press is one of the entities
whose purposes are engraved properly and practically oblige its
occupation properly, is therefore suitable to distinguish. The right to use
mass communication to disseminate the news and necessary facts is only
vested with press. This under-protecting and due acknowledgment to the
freedom of the press will have a detrimental effect on media and it’s 33working.
Unless a demarcation is done on article 19 (1) (a), all speakers will be
considered with vibrant rights that license opinions to be published
without due check and often function in press-like ways that will have a
detrimental effect. From an egalitarian society’s standpoint, the media
plays a relatable responsibility by providing information which is
indispensable for two reasons. Principally, it warrants that citizens
perceive appropriate and restructured views by evaluating the valid and
legitimate facts as provided by media. Secondly, it provides information
as a “checking function” by guaranteeing that the chosen government and
its representatives act upon electoral promises and achieve the desires of
those who chose them.
Media thus plays a central role since it is the single means through which 34
public opinion is engendered. Normal speakers if not press, should
remain free to express themselves if they are unsure of facts and
information they get, especially barring from publishing and
disseminating their messages. Press speakers are fullling a public
function, therefore identity, and recognition and part of the autonomous
nature of the work is required to be drawn. Exploring the senior Advocate 35F. S. Nariman had once observed:
“A responsible Press is the handmaiden of effective judicial
administration. The Press does not simply publish information about
cases and trials but, subjects the entire Justice – hierarchy (police,
33Id. at page 5.�34Shefali Bedi, “ esponsibility of media in a democracy”, 7 International Research Journal 235 (2009).35 Op-Ed “Wake up and smell the ink” The Hindu (December 4, 2012).
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108 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
prosecutors, lawyers, Judges, Courts), as well as the judicial processes, to
public scrutiny. Free and robust reporting, criticism and debate
contribute to public understanding of the rule of law, and to a better
comprehension of the entire Justice – system. It also helps improve the
quality of that system by subjecting it to the cleansing effect of exposure
and public accountability.”
Further, there are numerous Supreme Court judgments rendered by 36Indian Judiciary highlighting the need to protect press freedom. It is
therefore labelled as watchdog since it checks and balances the power of
the other three branches of government, i.e., the executive, the 37
legislature and the judiciary. Undoubtedly, the free press facilitates the
individuals to partake in all pertinent matters affecting them. It has been
universally accepted that only an autonomous press or media can endow
citizens with a diversity of information and views on matters of public
signicance. These grand pronouncements are on the value of the press,
while it never refuses to acknowledge the actual press clause power.
V Conclusion
Besides its watchdog role, the press should generate a room for societal
deliberation. The free press persuades involvement from the public in
general, encouraging a vigorous, skilled and active society to carry out
the debate inspired originally by the media, moulding a true marketplace
of ideas where all opinions are taken into account. For these reasons, it is
the need of the hour that the press clause under article 19 (1) (a) needs to
re-examined and be given separate privileges. The modes that the media
is supposed to utilize its unhindered course of information and to warrant
the implementation of others’ privileges to the free stream of information
are undened.
Earlier, the Print media, movie, radio, and TV circulate equivalent
36Romesh Thapper v. State of Madras AIR 1950 SC 124, Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305: 1962 (3) SCR 842BrijBhushan v. State of Delhi AIR 1950 SC 129, Bennett Coleman Co. v. Union of India AIR 1973 SC 106, Indian Express Newspapers v. Union of India AIR 1986 SC 515. 37Shirley Biagi, Media/Impact: An Introduction to Mass Media 35 (Wadsworth Publishing Company, Belmont, 2006).
109
content that has been produced by or on behalf of a broadcaster to
spectators that consists of many persons, where the audience
responsibility has been inert, to accept the speech, as provided, devoid of
the aptitude to react or to change. However with the rise of internet and
vast usage of cyber space, mass communication dissemination modality
changed. Anybody with admittance to a computer connected to the
Internet can bring out ideas and information to the public domain.
Presently, anyone who seemingly collects news now has the capability to
distribute it to the public directly through the accounts they create
through social media. Nevertheless, the aptitude to publicize is not the
identical to the ability to engage ‘an audience- readers’ relation and this is
where the press’s characteristic signicance lies today.
With the evolution of technology, digitalization, web 2.0 and social
media, the press role as indispensable disseminator of news is no longer 38continued. This is a major transition from traditional media to new-
media that is equipped with web 2.0 represented or seemed to be as a
sensible, linear progression so far as technology is concerned. However,
the fact is with this transition, anybody can fabricate information rapidly
and effortlessly, an enormous amount of information on the internet is
twisted by anyone who may need the credentials, prociency, or wish to
appropriately authenticate the information they make. Anything
consumed can speedily be duplicated and proliferated, which seems to
effect in a more hasty multiplication of misinformation than was
formerly probable.
Hence, to avoid an irreparable harm in the long run, it is necessary to
proscribe what the media, what the news is and thereby protect the news
38See, E. Siapera (eds.) Radical Democracy and the Internet: Interrogating Theory and Practice (Palgrave Macmillan publisher, London (2010). “The digital media underwent dramatic transformations with the onset of liberalisation. The term ’liberalisation’ refers to the opening up of the Indian market by the Indian state to enable it to be more integrated into the global economy. As commercial imperatives of the media intensied in an unprecedented manner, at the beginning of the new millennium we are in a better position to judge the impact of these changes in the Indian media. The central debate within the media world today is about the impact of liberalisation”.
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110 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
worthy media from normal ones and thereby grant them extra privilege. 39To sum up, it is pertinent to quote J Brandeis:
Good [counsels] are a remedy for evil counsels. The point of discussion is
to expose the falsehoods and fallacies, to avert the evil.
39See, Whitney v. California, 274 U.S. 357, 375 (1927).
111
LAW OF SEDITION: HISTORY AND PRACTICE
N. Jayalakshmi*
Abstract
India is one of the largest democratic countries in the world and its Constitution has been
framed adopting all the best practices followed in the other nations. The spirit of the
Constitution is a path which tries to bring in all sorts of freedom to the citizens of the nation
which they had not obtained during the British rule. The British rule forced the framers of
our Constitution to think of an egalitarian society where democracy is extolled and vital aim
is not just depiction of democratic principles but also elevating the constitutional ideals to the
perspective of justice. One such principle that was framed as a provision is freedom of
speech and expression. Though this right is guaranteed but not enacted as an absolute one,
riders are placed to protect the pillars of democracy. Various reasonable restrictions are
applicable while applying right to freedom of speech and expression. In this context, the
relevance of sedition applying to Free speech is pertinent. This article analyses the
perception of sedition, its relevance today and the role of judiciary in protecting the freedom
of speech and expression.
I Introduction
FREEDOM OF speech and expression is what human being acquires on
birth. Considering the important position freedom of speech and
expression developed, it came to be recognised as one of the vital element
in a democratic state. It held the highest position in human rights
hierarchy after right to life. Freedom of speech and expression began to
be considered as fundamental rights and it enjoined some unlimited 1powers behind its wagon.
The right to free speech is one of the most renowned as well as robustly
secured civil liberties from any sort of governmental intrusion. The
voyage to safeguard free speech did not have an abrupt beginning with
the Constitution of India. In the era of India’s struggle for independence
from the British rule, right to free speech was given enormous
importance by the national leadership. Rigorous campaigns were
*Research Scholar, National Law School of India, Bangalore.1 Archana Jayaraman, “Freedom of Speech and Expression: A Comparative analysis
st American I Amendment and Article 19 (1) (a) of Indian Constitution”1(2) International Journal of Research and Analysis 96 (2013).
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112 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
2organized to ensure the freedom of press against several repressive laws.
II Rationale behind protecting freedom of speech
Freedom of speech offers human being to express his feelings to other,
but this is not the only reason; purpose to protect the freedom of speech.
There could be more reasons to protect these essential liberties. There are
four important justications for freedom of speech –
1. For the discovery of truth by open discussion - According to it, if
restrictions on speech are tolerated, society prevents the
ascertainment and publication of accurate facts and valuable
opinion. That is to say, it assists in the discovery of truth.
2. Free speech as an aspect of self- fullment and development –
Freedom of speech is an integral aspect of each individual’s right to
self-development and self-fullment. Restriction on what we are
allowed to say and write or to hear and read will hamper our
personality and its growth. It helps an individual to attain self-
fullment.
3. For expressing belief and political attitudes - Freedom of speech
provides opportunity to express one’s belief and show political
attitudes. It ultimately results in the welfare of the society and state.
Thus, freedom of speech provides a mechanism by which it would
be possible to establish a reasonable balance between stability and
social change.
4. For active participation in democracy – Democracy is most
important feature of today’s world. Freedom of speech is there to
protect the right of all citizens to understand political issues so that
they can participate in smooth working of democracy. That is to say,
freedom of speech strengthens the capacity of an individual in 3participating in decision-making.
2 Subhradipta Sarkar “Right to free speech in a censored democracy” 6 University of Denver Sports and Entertainment Law Journal 61 – 88 (2009).3 Dheerajendra Patanjali “Freedom of Speech and Expression: India v America - A study” 3 (4)India Law Journal 1 (2015).See, http://indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html (Last visited on 29 Sept., 2016).
113
The right to freedom of expression is protected by a multitude of regional
and international treaties, charters and frameworks. According to article
19(2) of the International Covenant on Civil and Political Rights
(ICCPR), a formally binding legal treaty ratied by 165 nations that
echoes in key respects the Universal Declaration of Human Rights:
Everyone shall have the right to freedom of expression; this right shall
include the freedom to seek, receive and impart information and ideas of
all kinds, regardless of frontiers, either orally, in writing or in print, in the
form of art, or through any other media of his choice.
The freedom of expression is characterized by six key features:
It applies to everyone equally without distinction of any kind
whatsoever; distinctions based on “race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status” are entirely irrelevant to its application.
Its geographical scope is unlimited; it applies “regardless of
frontiers.”
Its substantive scope, while not unlimited, is broad; it encompasses
information and ideas of all kinds.
It includes the rights to both receive and impart information and ideas;
the rights of both listeners and speakers, and observers and
demonstrators are equally protected
It imposes a positive obligation on signatories to the ICCPR; states are
obligated to take the necessary steps to ensure its protection, including
adopting laws or other measures as may be necessary and providing
an effective remedy to those whose freedom of expression has been
violated.
The manner in which expressions are disseminated is unlimited; it
protects the right to impart one’s ideas using any form of media of his
choice.
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114 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
The freedom of expression, while expansive, is not absolute and can, in 4certain narrow circumstances, be restricted.
III Sedition: Concept and meaning
As stated in Kenny - the law of sedition relates to the uttering of the
seditious words, the publication of seditious libels, and conspiracies to do
an act for the furtherance of a seditious intention. Sedition, whether by
words spoken or written, or by conduct, is a misdemean our at common 5
law punishable by ne and imprisonment.
Sedition is overt conduct, such as speech and organization that is deemed
by the legal authority to tend toward insurrection against the established
order. Sedition often includes subversion of a constitution and
incitement of discontent to lawful authority. Sedition may include any
commotion, though not aimed at direct and open violence against the
laws. Seditious words in writing are seditious libel. A seditionist is one 6
who engages in or promotes the interests of sedition.
7Sir James Fitzjames has dened seditious intention as that which excited
hatred, contempt or disaffection towards the crown, constitution, or
government and incited any person to commit a crime in disturbance of
the peace or to promote feelings of ill will and hostility between different 8classes of subjects . Five specic heads of sedition are:
1. To excite disaffection against the King, Government or
Constitution, or against Parliament or the administration of justice;
2. To promote, by unlawful means, any alteration in church or state;
3. To incite a disturbance of the peace;
4 ICNPL, Report on the right to freedom of expression: Restrictions on a foundational right (April, 2015) See, www.icnl.org/research/trends/trends6-1.pdf. (last visited on September 26, 2016).5 Ankur Gupta, “Sedition”, Available at: http://www.rmlnlu.ac.in/webj/sedition.pdf (Last visited on 12 Sept., 2016).6 Madhavi Divan, “The right to privacy in the age of information and communications” 4 SCC J 12-23 (2002).7 Luc B. Tremblay, The Rule of Law, Justice and Interpretation (McGill-Queen’s University Press, Montreal & Kingston, 1997). 8 Barry Wright, Eric Tucker (et al), Security, Dissent, and the Limits of Toleration in War and Peace, 1914-1939(University of Toronto Press, Canada, 2015).
115
4. To raise discontent among the king’s subjects; and
95. To excite class hatred.
Sec.124A of Indian Penal Code explain sedition as:
Whoever, by words, either spoken or written, or by signs, or by visible
representation, or otherwise, brings or attempts to bring into hatred or
contempt, or excites or attempts to excite disaffection towards the
Government established by law shall be punished with imprisonment for
life, to which ne may be added, or with imprisonment which may extend
to three years, to which ne may be added, or with ne.
Explanation 1-The expression “disaffection” includes disloyalty and
all feelings of enmity.
Explanation 2-Comments expressing disapprobation of the measures
of the attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section.
Explanation 3-Comments expressing disapprobation of the
administrative or other action of the Government without exciting or
attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section.
The Indian Constitution has no specic law that protects freedom of
speech; this is a legacy that it may have inherited from its former British
colonial master. India, like the UK, draws this right from article 19 of the 10
UN UDHR.
In drafting the provision on Freedom of speech and expression, India’s
founders were inuenced by the First Amendment to the United States
Constitution. That amendment says, “Congress shall make no law
abridging the freedom of speed, or of the press.” It assures in relatively
absolute terms, freedom of speech and press. But, under the Indian
Constitution, this freedom is a lot more qualied. Article 19 (2) contains
9 thK.D. Gaur, Text Book on The Indian Penal code ( 4 edn., Universal Law Publishing Co. Pvt. Ltd, New Delhi, 2009).10 Ibrahim Seaga Shaw, Business Journalism: A Critical Political Economy Approach (Routledge, Oxon, 2016).
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116 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
a list of various grounds that permit the government to impose reasonable
restrictions on the freedom. These grounds are India’s sovereignty and
integrity, state security, foreign relations, public order, decency, morality, 11
contempt of court, defamation and incitement of offences.
Article 19 (1) (a) of the Indian Constitution says, all citizens have the
right to freedom of speech and expression. This right of freedom of
speech and expression incorporates protection for austerely censuring
existing government structures, policies and administrative schemes,
coupled with protection for suggestion and recommending the
development of other system. Article 19 (2) of Indian Constitution says
that, every citizen of the country holds the right to air his or her opinion 12
through print or electronic media with restrictions imposed.
Pursuant to enacting “reasonable restrictions” on the right to free
expression, the Union Government have enacted the following statutory
provisions which constitutive the basic framework for restrictions on
speech that exemplify India’s more permissive approach to restricting
socially offensive and emotionally harmful speech. Section 153 A of the
IPC constitutes one of the two pillars of India’s hate speech restrictions.
It imposes criminal penalties on anyone who
by words, either spoken or written, or by signs or by visible
representations or otherwise, promotes or attempts to promote, on
grounds of religion, race, place of birth, residence, language, caste or
community or any other ground whatsoever, disharmony or feelings of
enmity, hatred or ill-will between different religious, racial, language or
regional groups or castes or communities, or (b) commits any act which is
prejudicial to the maintenance of harmony between different religious,
racial language or regional groups or castes or communities and which
disturbs or is likely to disturb the public tranquillity…”
11 Niru Sharan “Freedom of Speech and Expression and Indian Constitution: An Overview” 3 (7) International Journal of Humanities, Arts, Medicine and Science 70 (2015). 12 Hetal Chavda, “Autonomy Is as autonomy Does – Law of Sedition in India” 2(5) Imperial Journal of Interdisciplinary Research: 31( 2016).
117
Section 295A imposes a punishment of up to three years, a ne, or both on
anyone who
with deliberate and malicious intention of outraging the religious
feelings of any class of citizens of India, by words, either spoken or
written, or by signs or by visible representations or otherwise, insults or
attempts to insult the religion or the religious beliefs of that class…..
The Supreme Court has upheld these provisions on the grounds that they 13
constitute “reasonable restrictions” pursuant to protecting public order.
V Historical development of the law of sedition in India
thIn the 13 century, the rulers in England viewed the printing press as a
threat to their sovereignty. The widespread use of the printing press thus
prompted a series of measures to control the press and the dissemination
of information in the latter half of the century. These measures may
broadly be categorised as the collection of acts concerning Scandalum 14Magnatum and the offence of Treason. While the former addressed the
act of speaking ill of the King, the latter was a more direct offence
“against the person or government of the King”. The rst category of
offences, classied as acts concerning Scandalum Magnatum, were a
series of statues enacted in 1275 and later. These created a statutory
offence of defamation, which made it illegal to concoct or disseminate
false news (either written or spoken) about the kind or the magnates of the
realm. The second category of offences was that of treason. Essentially,
treason was an offence against the State. It was understood that all the
subjects of the rulers owed a duty of loyalty to the kind. Thus, if any
person committed an act detrimental to the interests of the rulers, they
13 Daniel Hantman “Shaking Fists and Simmering craniums: India’s tolerance for restricting socially offensive and emotionally harmful speech” 1 Indonesian Journal of International & comparative Law 82-84 (2014).14 Scandalum Magnatum or words spoken in derogation of a peer, judge or other great ofcer of the realm, which by certain old statutes, was made a very heinous ofce, although the utterance of the very same words would not be actionable if spoken against any ordinary individual. The action or prosecution for scandalum magnatum, is totally different from the action for slander in the case of private persons.
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15would be guilty of the offence of treason.
The law of sedition was an import during the colonial period from
English law into the IPC, which consisted of partly the Treason-Felony
Act, the common law with regard to seditious libels and the law relating
to the seditious worlds. The Clause of sedition stood as sec. 113 in
Macaulay’s draft IPC of 1837, and was shelved for 20 years until the
enactment of IPC. But the said clause was omitted when enacted, to be
inserted into the IPC by way of an amendment in 1870, the Law Secretary
of Government of India, justied on the pretext that it aimed to bring
about uniformity and remove incongruities in the existing law. He
pointed out that the new section aimed to punish attempts to excite
feelings of disaffection against the Government and made a distinction
between ‘disaffection’ and ‘disapprobation’. In reality, the insertion of a 16section on sedition was prompted by the increasing Wahabi. Wahabi
were a shadowy network of rebels who were part of the First War of
Indian independence in 1857 and were feared for their extensive network
across the country. They followed a modern organisational technique of
combining secret work with mass preaching set in politico-religious 17framework activities between 1863-1870.
In 1867, the British Indian government passed a law proscribing the
publication of seditious writing, or literature that was deemed to promote
disaffection with the British colonial government. In the eyes of the
British government, the literature of sedition served to establish a
connection between literature and terrorism. The original impetus for the
Act of 1867 came from London, where librarians in the British museum
and administrators in the India ofce felt a need to keep track of the 18printed matter churned out by Indian presses.
15 Nivedita Saksena and Siddhartha Srivastava “An Analysis of the modern offence of sedition” 12(1) NUJS Law Review 125 (2014). 16 M. Vardalos, G.K. Letts (et al) Engaging Terror: A Critical and Interdisciplinary Approach (Brown Walker Press, Boca Raton ,2009).17 Siddharth Narrain, “Disaffection and the Law: The Chilling Effect of sedition Laws in India” XLVI Economic and Political Weekly 33 (2011).18 Elleke Boehmer and Stephen Morton, Terror and the Postcolonial: A Concise companion (John Wiley and Sons, UK, 2015).
119
At that point, it was a law against “exciting disaffection.” The rst case
was registered, in 1891, when the editor of a newspaper called Bangobasi
was booked for publishing an article criticising an “Age of Consent Bill”.
The jury could not reach a unanimous verdict and the judge, in that case,
refused to accept any verdict that was not unanimous. The editor was
released on bail, and, after he issued an apology, charges against him 19were dropped.
20In Queen Empress v. Bal Gangadhar Tilak was the rst case wherein the
law on sedition under sec. 124A in the IPC was explained. Strachey J.
stated the law in the following terms;
The offence consists in exciting or attempting to excite in others certain
bad feeling towards the government. It is not the exciting or attempting
to excite mutiny or rebellion or any sort of actual disturbance, great or
small. Whether any disturbance or outbreak was caused by these articles 21is absolutely immaterial.
In 1898, the law of sedition under IPC was amended to include the terms
‘hatred’ and ‘contempt’ to the word ‘disaffection’. Disaffection was also
stated to include ‘disloyalty and all feelings of enmity’. These
amendments were also brought in section 153 and section 505 of IPC. In 22
Queen Empress v. Jogendra Chandra Bose, the word ‘disaffection was
dened as opposite of affection. Later on in Queen Empress v. 23Ramachandra, it was dened as positive feeling, not just absence of
affection. Justice Strachery took a particularly broad approach in his
denition of disaffection on “hatred, enmity, dislike, hostility, contempt
and every form of ill-will” to the government. In Emperor v. Bhaskar
1 9Atul Dev, “A History of the Infamous Section 124A” Available at: http://www.caravanmagazine.in/vantage/section-124a-sedition-jnu-protests (Last visited on 12 Sept., 2016).20 (1897) I.L.R. 22 Bom. 112.21 Available at: http://www.thehindu.com/opinion/lead/sedition-legislation-meant-to-suppress-the-voice-of-indian-people/article7758013.ece (Last visited on 12 Sept., 2016).22 (1893)ILR 20 Cal 537.23 (1897) I.L.R. 22 Bom. 152.
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24Balvant Bopatkar disaffection was interpreted not as a feeling for 25another individual, but a feeling one had for a ruler.
In 1908, after the political situation created because of the partition of
Bengal, the British enacted the Newspapers (Incitement of Offences)
Act, a law that enabled district magistrates to conscate printing presses
that were used to publish seditious material. The colonial government
also enacted the Seditious Meetings Act to prevent meetings of more than 2620 people from assembling.
Another famous decision was Annie Besant v. Advocate General of 27Madras. The case dealt with sec. 4(1) of the Indian Press Act, 1919, that
was framed similar to sec. 124A. The relevant provision said that any
press used for printing/publishing newspapers books or other documents
containing words, signs or other visible representations that had a
tendency to provoke hatred or contempt to his Majesty’s
government…or any class of subjects (either directly or indirectly, by
way of inference, suggestion, metaphor, etc.) would be liable to have its
deposit forfeited. In this case an attack was levelled against the English
bureaucracy. The Privy Council followed the earlier interpretation of
Justice Strachey and conscated the deposit of Annie Besant’s printing 28
press.
Mahatma Gandhi even went to a length to call the law of sedition as the
prince among the political sections of the IPC designed to suppress the 29liberty of the citizen.
In 1942, the court overturned the conviction of Niharendu Dutt
24 (1906) 8 BOMLR 421.25 Shaik Mohammed Ismail “An Analysis of law of sedition and its impact on freedom of expression” 1 Journal of Legal Analysis and Research 34 (2014). 26 Siddharth Narrain “Disaffection and the Law: The Chilling Effect of Sedition Laws in India” XLVI Economic and Political Weekly 34 (2011).27 (1919) 46 IA 176. 28See, http://www.nls.ac.in/resources/csseip/Files/SeditionLaws_cover-Final.pdf. (Last visited on 10 Sept., 2016). 29 Available at : http://lexquest.in/draconian-law-sedition/ (last visited on 15 Sept. 15, 2016).
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30Mazumdar v. King Emperor, for sedition. Mazumdar had delivered a
speech in the Bengal Legislative Assembly attacking the governor and
the elected Suhrawady Ministry for the failure to maintain law and order
during the Dhaka riots. The court went into the merits of Mazumdar’s
speech and held that the “the time is long gone when a mere criticism of
government, even abusive language, was sufcient to constitute
sedition.” Overturning years of accumulated judicial opinion, it
recognized that the right to utter honest and reasonable criticism of an
existing system of government or even the expression of a desire for a
different system of government was a source of strength to a community.
It argued against the literal interpretation of the sedition clause,
suggesting that the way it was framed in the IPC was sufcient to make a 31surprising number of persons guilty of sedition.
Conversely, the Privy Council, in the King Emperor v. Sadashiv 32Naarayan Bhalerao overruled that decision and ardently conrmed the
33view expressed in Tilak’s case to the effect that “the offence consisted in
exciting or attempting to excite in others certain bad feelings towards the
Government and not in exciting or attempting to excite mutiny or
rebellion, or any sort of actual disturbance, great or small.” Thus,
according to the Privy Council, incitement to violence was not a
necessary element of the offence of the sedition.
34In Kedarnath v. State of Bihar, the Supreme Court of India held that,
while “very strong speech” and “very vigorous words” are protected by
the constitution, the law of sedition as provided in sec. 124-A of the
Indian Penal code is consistent with the constitutional protection of
freedom of expression. The current interpretation of sec. 124A upheld in
this case propounded two points relevant. The court stated:
30 (1942) FCR 48. 31 Terence C. Halliday, Lucien (et al) Fate of Political Liberalism in the British post-colony: The Politics of the Legal Complex (Cambridge University Press, Cambridge, 2012). 32 (1947) L.R. 74 I.A. 89. 33 Emperor v. Bal Gangadhar Tilak, (1917) 19 BomLR 21134AIR (40) 1962 SC 995.
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The very existence of the State will be in jeopardy if the government
established by law is subverted. That is why sedition as the offence in
sec. 124-A has been characterised, comes under Chapter VI relating to
offences against the State. Hence any act within the meaning of sec. 124-
A which have the effect of subverting the Government by bringing that
Government into contempt or hatred or creating disaffection against it,
would be within the penal statute, because the feeling of disloyalty to the
Government established by law or enmity to it imports the idea of
tendency to public disorder by the use of actual violence or incitement to
violence.
On that basis these, following observations were made:
a. A distinction was drawn between the Government established at
law and persons for the time being engaged in carrying on the
administration.
b. The judges moved towards understanding sedition in terms of its 35
tendency to create disorder or incitement to violence.
36In Tara Singh v. State of Punjab , sec. 124-A of IPC was struck down as
unconstitutional being contrary of freedom of speech and expression 37guaranteed under article 19 (1) (a).
38In Ram Nandan v. State of UP, the constitutionality of the section was
challenged in this case on the ground of violation of article 19 (2) of the
constitution and has been declared unconstitutional by the Allahabad
High Court. But, only after a few years of this decision the apex court of
India overruled the decision of Allahabad High Court and held it as a
constitutional by giving the reasoning, that, “to protect the freedom of
speech and expression, which is sin qua non of a democratic form of
government that our constitution has established. This court, as the
custodian and guarantor of the fundamental rights of the citizens, has the
35 Available at : jmi.ac.in/upload/menuupload/12_ccmg_Sedition.pdf (Last visited on 15 Sept., 2016).36 1951 CriLJ 449.37 AIR 1950 SC 124. 38 AIR 1959 All 101.
123
duty cast upon it of striking down any law which unduly restricts the
freedom of speech and expression. But the freedom has to be guarded
against becoming a license for vilication and condemnations of the
Government established by law, in words which incite violence of have 39
the tendency to create public disorder.”
VI Comparative law
For the comparison purpose, the legal position of three countries is being 40
analysed: In USA, in Brandenburg v. Ohio, the court said that
advocating a doctrine of violence in abstract terms was not considered
sedition, whereas advocating immediate violence was. The prior, it was
held was protected by the First Amendment and the distinction was the
immediacy of the threat. This law operates under civil jurisdiction and
there is a separate code governing military justice where both sedition 41
and failure to suppress sedition is punishable under a court marshal.
42In Schenck v. United States was the one of the rst important case
where Supreme Court was rst requested to strike down a law violating
the free speech clause. It was a case related to Sedition Act of 1918 which
criminalized ‘disloyal’, ‘scurrilous’ or ‘abusive’ language against the
government. Supreme Court held in this case as:
The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a
right to prevent. Thus, in this case court evolved a new doctrine of “clear
and present danger.
Further, in Dennis v. United States, it was observed by the court that
“clear and present danger” test did not require the government to ‘wait
until the putsch is about to be executed, the plans have been laid and the
39 Ibid. 40 Brandenburg v. Ohio 395 U.S. 444 (1969)41 Available at : http://jmi.ac.in/upload/menuupload/12_ccmg_Sedition.pdf (last visited on 15 Sept., 2016).42 Schenck v. United States, 249 U.S. 47 (1919).
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124 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
signal is awaited; thereby broadly dening the words “clear and present
danger.”
43Thus, the Supreme Court effectively shaped the rst amendment of
American Constitution in such a manner as to permit a multitude of
restrictions on speech. Example such restriction is providing authority to
state to punish words that ‘by their very nature, involve danger to the
public peace and to the security of the state’. Moreover, lawmakers were 44given the freedom to decide which speech would constitute a danger.
45In a 1966 case, the court ruled that the Georgia House of
Representatives’ exclusion from membership of Julian Bond violated his
constitutional rights. Bond, an opponent of the Vietnam war, had joined a
statement of ‘sympathy with, and support [for] the men in this country
who are unwilling to respond to a military draft’. The court held that
Bond could not be penalized for that statement since it did not constitute a
call for unlawful draft resistance but was merely a general, abstract
declaration of opposition to the war. The court also relied on other
statements by Bond in which he explicitly denied advocating the
breaking of the draft laws. The court emphasized:
[S]tatements criticizing public policy and the implementation of it must
be ... protected [in order to] ... give freedom of expression the breathing 46
space it needs to survive.
The Supreme Court developed the “ghting words” doctrine to address
the issue of offensive speech. ‘ghting words’, which are excluded from
constitutional protection, include those which tend to incite an immediate
breach of the peace or which by their very utterance inict injury. The
43 The US rst amendment reads as:Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.44See, http://indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html (Last visited on 15 Sept., 2016).45 Bond v. Floyd, 385 US 116 (1966). 46 See, https://www.article19.org/data/les/pdfs/publications/1993-handbook.pdf (Last visited on 19 Sept., 2016).
125
court articulated the ghting words test in 1942; since 1952, it has not
upheld a single ghting words conviction. Although it has not expressly
rejected the doctrine, in practice it has declined to proscribe words which
by their very utterance inict injury, and has interpreted the rst prong of
the denition, the tendency to incite an immediate breach of the peace to
be co-extensive with the ‘clear and present danger’ test. The Supreme
Court effected this transformation of the “ghting words” doctrine in 47several decisions.
In Ghana it repealed the law of sedition, as it considered such laws as
unworthy of a society seeking to develop on democratic principles on the 48
basis of transparency and accountability in public life. Further, in
Australia, the Anti-terrorism Act 2005, also extended the crime of
sedition to include ‘urging a person to assist the enemy’ and ‘urging a
person to assist an organization engaged in armed hostilities against
Australian defence force, in what the government termed a ‘modernising’ 49
of the obsolete crime of sedition.
VII Sedition law after independence and recent cases of
sedition in India
Freedom of expression is important not merely as a bane to the state –
though that function is surely a key aspect of democratic life. Journalists,
publishers, bloggers and NGOs are citizens with the capacity to highlight
issues of concern, and to propose solutions. When their right to speak
freely and frankly is curtailed, either directly by the state, or indirectly by
the threat of disproportionate civil action, so is their ability to underwrite
the fundamental rights and freedoms of their fellow citizens. Free speech
serves to highlight areas where the state is failing in its duty to the people.
Without a vigorous culture of free speech, the state becomes a stranger to 50the views of the people.
47 Id at p. 125. 48 See, http://www.ghanaweb.com/GhanaHomePage/NewsArchive/Criminal-libel-law-repealed-17009 (Last visited on 19 Sept., 2016). 49 James Jpp and John Nieuwenhuysen, Social Cohesion in Australia (Cambridge University Press, Vienna, 2007). 50 Available at: https://www.englishpen.org/wp-content/uploads/2015/09/seditious_libel_july09.pdf (Last visited on 15 Sept., 2016).
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Restrictions on the freedom of expression can be justied if they are
provided by law or if they are in pursuance of a legitimate aim in
international treaties such as the protection of national security, public
order, public health or morals. There needs to be a necessity to restrict the
right in the form of a pressing social need and there needs to be a strict
scrutiny regarding the justication of the restriction. When a law
restricts freedom of expression by reference to national security or public
order imperatives, and that law is couched in general terms, specic
justication needs to be provided by the State in prosecution (for 51
compliance) with article 19 of the ICCPR.
Even though sedition was expressly excluded by the Constituent
Assembly as a ground for the limitation of the right to freedom of speech
and expression, this right was still being curbed under the guise of this
provision of the IPC. The reason the drafters of the Constitution omitted
the term ‘sedition’ from the enacted Constitution was the divergence in
interpretation of the term. To avoid any complications that may arise out
of its ambiguity in interpretation, they used the term ‘security of the state’ 52
that was to include grave crimes like sedition.
In 1979, India ratied the ICCPR, which sets forth internationally
recognized standards for the protection of freedom of expression. Yet, as
detailed here, a series of Indian legal provisions, some of them used by
prosecutors and litigants on a regular basis, continue to restrict speech in
ways inconsistent with that covenant. In some cases, the Indian Supreme
Court has properly issued rulings narrowing the scope of the laws, but
they continued to be misused, making clear that the laws themselves need
to be amended or repealed if India is to comply with its international 53obligations . One of the concerns has been whether such crimes ‘t’ with
the stance of the substantive criminal law that typically discounts the
51 Available at: https://www.nls.ac.in/resources/csseip/Files/SeditionLaws_cover_Final.pdf (Last visited on 13 Sept., 2016). 52 Supra Note 12. 53Available at: https://www.hrw.org/report/2016/05/24/stiing-dissent/criminalization-peaceful-expression-india (Last visited on 13 Sept., 2016).
127
54relevance of motive to criminal responsibility . Every right are subject to
limitations as may be imposed by law in the collective interest of the
society. But the difculties arise with regard to such notions as ‘national
security’, ‘security of the state’, ‘public order’, ‘public interest’ and 55
‘decency or morality’.
56In the Menaka Gandhi case, the Supreme Court had held that freedom of
speech and expression is not conned to geographical limitations and it
carries with it the right of a citizen to gather information and to exchange 57thought with others not only in India but abroad too . The Apex court has
accepted that the line dividing preaching disaffection towards the
Government and legitimate political activity in a democratic set up 58
cannot be neatly drawn. Moreover, India’s rst citizen, President Pranab
Mukherjee, seemed to take a strong stand. At the valedictory event to
commemorate the 155th anniversary of IPC, President Mukherjee said:
The IPC has undergone very few changes in the last 155 years…Even
now, there are offences in the code which were enacted by the British to
meet their colonial needs. Yet, there are many new offences which have to
be properly dened and incorporated in the code.
He suggested that the IPC needs a complete and thorough revision and
their implementation requires considerable understanding and
inclusiveness on the part of the police. Timed to perfection, the 59President’s views seem to resound that of the nation as a whole .
Few examples where sedition charges were levelled:
i. V. Gopalaswamy, Politician, MDMK, December, 2009, Chennai,
54Katharine Gelber and Adrienne Stone “Hate Speech and freedom of speech in Australia” 15 NSW140 (2007).55 nd Justice Hosbet Suresh,All Human Rights are Fundamental Rights: (2 edn., Universal Law Publishing Company, New Delhi, 2010). 56 Maneka Gandhi v. Union of India, AIR 1978 SC 597. . 57 See, http://www.gktoday.in/indias-sedition-laws-and-current-issues/ (Last visited on 13 Sept., 2016).58 Nazir Khan v. State of Delhi, (2003) 8 SCC 461. 59Available at: http://www.mapsondia.com/my-india/india/are-indian-sedition-laws-outdated (Last visited on 13 Sept., 2016).
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Tamil Nadu – Remarks allegedly against India’s sovereignty at a
book launch function.
ii. Arundhati Roy, Shuddabrata Sengupta, S.A.R. Geelani, Varavara
Rao and other writers, political activists and media theorists,
november, 2010, Delhi, Private complaint alleging that they made
anti-India speeches titled “Azadi – The Only way” at a seminar in
Kashmir.
iii. Aseem Trivedi, Cartoonist, September, 2012, Mumbai – he was
arrested after a complaint that his cartoons mocked the Indian 60Constitution and national emblem.
VIII Way forward: Time to change
Analysis, criticism from various point of view, leave us with a question:
Do we really need a law of sedition?. Answer can be viewed from two
points of view. The rst point of view is that the law is made with a
thought to protect the country in case there is a rebel or contempt against
the government, in any form. Britishers entered India with a thought of
trade and later formed their government and ruled us. Their situation was
precarious, and the fear of losing power or being overthrown was clear in
their mind and hence they made law with an intention to suppress Indians
and all laws formulated by them were tyrannical by nature as they never
allowed free speech as it would endanger their colonial rule. After
independence, the law continued. The second view argued by the
rationalist is that it clamps the freedom of speech and expression.
India is not an isolated country in the world, constantly we are being
observed by many nations and any form of disturbance would be an
invitation to ignite many problems or civil wars within the nation. As a
nation and citizens in the global world, everyone has a right to express
their views, but as it is rightly conveyed in our Constitution, it should be
within the ambit of restrictions. What is a restriction? It is a very broad
60 Available at: https://www.nls.ac.in/resources/csseip/Files/SeditionLaws_cover_Final.pdf) (Last visited on 10 Sept. 10, 2016).
129
question to be answered in a single line. Taking sides to political parties,
or narrow view cannot be probably give the deep knowledge that the law
means. Loyalty is towards the nation and not towards any government.
We have to leave a rich heritage and tradition to the coming generation
and not squabble on small issues. The need of the hour is matured citizens
and matured nation which would inculcate an insightful thought on
freedom of speech and expression of great ideas as enshrined in our
Constitution and uphold the spirit of the constitution. We can only
conclude by saying the same old adage, “united we stand, divided we
fall”.
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GOOD GOVERNANCE AND ITS CHALLENGES IN INDIA:
AN OVERVIEW
Sougata Talukdar*
Abstract
It is a universally admitted fact that the way of governance should always be good. No theory
of governance could be treated as good unless it is proved to be good in the context of its time.
From the ancient age, the concept of governance is changing with time. India’s democratic
experience of the last seven decades has clearly established that good governance must aim
at expansion of social welfare, involvement of its people in administration and development
of its citizens. Governance fails to become good governance not only due to its sluggish
nature but due to other inuential aspects like poverty, lack of justice, corruption etc. The
paper is an attempt to analyse the terms ‘governance’ and ‘good governance’ with their
characteristics and it also tries to nd out the challenges faced by governance in the path of
becoming good governance in general and in a democratic country like India in particular.
I Introduction
INDIA, THE largest representative democratic country, is considered as 1
a classical structured citizen- government partnership. Major changes
are being inaugurated in state and civil society in India today in the name
of good governance. In terms of the modern thinking, economic reforms,
good governance and democracy form three interrelated and mutually
supportive aspects of the development process. If the historical context of
the current emphasis on reforms and good governance is examined, it
will be seen that it represents yet one more stage in the thinking about the 2role of a developmental state.
The term governance implies the existence of the co-operation of people
and civil societies with the government machinery. Governance may be
taken as denoting how people are ruled and how the affairs of a state are
administered and regulated, on the other hand, the concept of good
* Ph.D. Scholar, Department of Law, University of Calcutta. 1 Chandra Sekhar, “Right to Information in Strengthening Participatory Democracy”, (Winter Issue) Global Media Journal 1 (2010).2 Sarah Joseph, “Democratic Good Governance: New Agenda for Change”, 36 (12) Economic and Political Weekly 1011 (2001).
131
governance is efcient governance that can live up to the expectations of 3the people.
II Meaning of governance
“Governance”, in general, refers to the combination of the process of
decision-making and the process by which decisions are implemented.
The term ‘governance’ can be used in various contexts such as
international governance, national governance, local governance, and
corporate governance. In democratic systems, government exists to
fulll functions such as maintaining security, providing public services, 4and ensuring equal treatment under the law. Landell-Mills and
Serageldin have dened governance as the use of political authority and
exercise of control over a society and the management of resources for 5
social and economic development.
Government is one of the factors of governance. Other factors involved
in governance may vary depending on the level of the government, place,
time and also on the given social structure. In rural and semi rural areas,
for example, other factors may include inuential land lords, association
of land lords, associations of peasant farmers, NGOs, cooperatives,
research institutes, religious leaders, nance institutions, political
parties, corporate houses etc. All factors other than government are
grouped together as part of the “civil society”.
Similarly, a formal government established by law is one of the means by
which decisions are arrived at and implemented. At the national level,
informal decision-making bodies, such as informal advisors, expert
committees, solo consultants, kitchen cabinets may exist. In some rural
areas powerful families or bodies may inuence decision-making
procedure. Such, informal decision-making is often the origin of corrupt
3 Ishan Krishna Saikia, “Good Governance and Human Rights: International and National Perspective” 2 (7) International Journal of Advancements in Research & Technology 124 (2013).4Dr. V. Govindu “Democratic Decentralization for Promoting Good Governance” 2 (1(4)) International Journal of Academic Research 91 (2015).5 Pierre Landell-Mills and Ismael Serageldin, “Governance and the External Factor”, (Washington, D.C., World Bank, l99l) 3 (1991).
Good Governance and its Challenges in India: An Overview
132 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
practices and result of corrupt practices.
III Good governance
The word “good” derives from the word ‘God’ and carries an innate
sense of judgment. And governance traditionally refers to the forms of
political system and the manners in which power is exercised in utilizing 6countries economic and social resources for development.
The concept of good governance has been receiving serious attention in
recent years not only in India but throughout the world. Good governance
in general implies higher level of organizational effectiveness than the
existing one without any change of organizational ideology. The meaning
of good governance may differ for various reasons. The World Bank
associates good governance primarily with capacity building and the
exercise of political power needed for efcient and effective
management of specic nation irrespective of its political system. It also
deals with the ability of the government to design and implement the
policies and to discharge government functions, in general. Good
governance is associated with efcient and effective administration in a 7democratic framework. Good governance can be dened as a mode of
causing improvement in quality of life of the people and also as a weapon
to face the emerging challenges of the society. In totality, governance to
be good governance must have the attributes of an effective, credible and
citizen friendly value caring structure and the movement should be
towards social welfare and people participatory legitimate administrative
system.
IV Origin of the concept of governance and good governance in
international level
The concept of ‘Governance’ is not new in our society. It is as old as
government itself. Both the terms, governance and government, are
derived from the old French words gouvernance and government,
6 Milk Moore, “Declining to Learn from the East” 24 (1) IDS Bulletin 36 (1993).7 H.K Asmeron, K Borgman and R. Hopee “Good Governance Decentralization and Democratization in Post Colonial State”, 41(4) Indian Journal of Public Administration 793 (1995).
133
respectively. Initially their meanings were quite similar, referring to acts
or procedure of acting of government. By the middle of 16th century,
however, meaning of the word ‘government’ evolved and by the early
18th century it further moulded to acquire the meaning of a governing
authority.
In this way the term governance gradually became marginalized, and by
the end of 19th century it was deemed to reect an incipient archaism. For
the next decade, it would hardly be used as a political term. In general the
term government was dened in terms of a governing authority,
including the political order and its institutional framework, while
governance was treated as the agency and process of governing, and was 8
often viewed as archaic. However, during 1980s at the early stage of
globalization the use of term governance became popular amongst the
jurists with an intention to emphasize on the process and manner of
governing to the notion of sustainable development. Meanwhile, the
institutions like IMF, the United Nations and its agencies, the World Bank
and international media were generous to pick up the term and use it in a
variety of ways. But with expansion of concept of globalization jurists
found that only the term governance is not enough to categories the
welfare character of the government. The term “good governance” will
be more appropriate to recognize its actions. Now, with the development
of third generation human rights, the ambit of good governance not only
remains limited to the duties of the state but also becomes a right of every
citizen of a nation.
V Characteristics of good governance
According to United Nations Economic and Social Commission for Asia
and the Pacic (UNESPACP) good governance has eight components:
a. Participation
Good governance can be achieved only when civil society has the
opportunity to participate during the formulation of development
8 Mikhail Ilyin, “Governance: What is Behind the Word?” 37(1) IPSA Participation 4 (2013)
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134 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
strategies. It will make directly affected communities and groups a
participant in the design and implementation of programmes and
projects. Even where policies have a secondary impact on particular
localities or group of people, there should be a consultation process that
takes their views into account. Participation could be either direct or
through legitimate intermediate representatives. Participation needs to 9be informed and organized. This aspect of governance is an essential
element in fullling commitment and enhancing the quality of their
implementation. Lack of participation of citizens, turns the governance
into bad governance. Transformation from governance to good
governance is only possible, if there is possibility of increasing
participation of people in the mechanism of governance. The decit of
this indicator leads to the path of abuse of power, corruption and
aloofness in the administration.
b. Rule of law
Good governance requires fair, predictable and stable legal frameworks
that are enforced impartially. It also requires protection of human rights
particularly those of children and women, minority groups, indigenous
people, independent and imperial police force, independent judiciary and
bureaucracy, so that individuals may assess economic, social and cultural
opportunities and act on them without any fear of arbitrary interference or
expropriation. This requires that the laws, orders, ordinances and rules be
known in advance, and application of them should be consistent and fair.
If conict arises it should be resolved by an independent judicial system,
and that procedures for amending and repealing the existing laws are
publicly known.
c. Transparency
Transparency is the main pillar of good governance. It requires that
information related to government activities are available to the general
public and directly accessible to those who will be directly or indirectly
9 O.P. Dwivedi, “Common Good and Good Governance” 44(3) Indian Journal of Political Science 253 (1998)
135
affected by such actions and also the way of enforcement. Access to
information is the primary requirement of transparency which will bring
clarity about functioning of government institutions and organisations.
Right to Information Act of India plays a very effective role in this 10
regard.
d. Responsiveness
Good governance requires that institution and process try to serve all
stakeholders within a reasonable time frame. It is also required to prove 11
effectiveness of the government.
e. Consensus oriented
A governance can be good in respect of a society or country only if it can
reach a broad consensus among its people on subject what is best for the
community and how that can be achieved in a sustainable and prudent
manner and what will be best procedure to implement that.
f. Equity and inclusiveness
The wellbeing of a society depends on the overall development of its
people including women, poor, minorities, as well as other economically
and socially backward people without which real progress of the society
cannot be achieved. Their proper representation in the decision making
process is very important. Economic gap and concentration of power are
not a good advertisement for a developed society.
g. Effectiveness and efciency
In the modern world effectiveness and efciency are the basic criteria for
the governance of good in nature. This nature of governance can only be
achieved if the working of government or the institutions meets the needs
of its people by making the best use of resources at its disposal.
10 For further discussion see L. Stirton and M. Lodge, “Transparency Mechanisms: Building Publicness into Public Services”, 28(4) Journal of Law and Society 471 (2001).11 Banasree Devi, “Good Governance and its Working: at the Indian Context” 1(2) International Journal of Interdisciplinary Research in Science Society and Culture 78(2015).
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136 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
h. Accountability
Accountability is a key requirement of good governance. Every
governmental system, whether it is public or private, should be
accountable to its people. Accountability cannot be enforced without
transparency and rule of law. Accountability is one of the prerequisites of
good governance. Accountability may be categorized into four broad
types: (a) Accountability is associated with the idea of answerability,
based on the premise that individual identity is determined by one’s
position in a structured relationship; (b) Liability, a second form of
accountability, sees individual identity rooted in more-formalized
expectations developed through rules, contracts, legislation and similar
relationships based on legalistic standing; (c) Accountability is
associated with role-based expectations. Such roles foster
blameworthiness as a basis for shaping and directing one’s behavior; (d)
Accountability expectations are derived from an individual’s perceived 12
status in a community where attributions come into play.
VI History of good governance in India
The concept of good governance is not new in India. Moreover the
concept became more and more developed through various periods of
Indian history.
Origin of the concept in India
The concept of good governance exists from time of king’s rule. The
rulers were bound by dharma, more specically called ‘Raj Dharma’,
which precisely means good governance to the people. Even though in
those days monarchy prevailed, there was no place for any arbitrariness
in the ruling. Raj Dharma was the code of conduct or the rule of law that 13was superior to the will of the ruler and governed all his actions. The Rig
Veda states “Atmano mokshartham jagat hitayacha” i.e., the dual
12 Shilpa, “Right to Information Act: A Tool to Strengthen Good Governance and Tackling Corruption”, 2(2) International Journal of Humanities and Social Science Invention 46 (2013). 13 Subhash C Kashyap, “Concept of Good Governance and Kautilya’s Arthashastra, in Good Governance: Stimuli and Strategies” (Aalekh Publishers, Jaipur, 2010).
137
purposes of our life are emancipation of the soul and welfare of the 14world. Thus, in general the public good includes the welfare of the
society at large and in the other words; the private good should be
subservient to the greatest good of all. Moreover, this description of good
governance can also be found in ancient Indian scriptures like the Jataka
Tales, Shukracharyas’s Nitisar, Aitreya Brahmana, Panini’s Ashtadhyayi
and Kautilya’s Arthashastra. Kautilya’s system of governance was quite 15modern in concept and contemporary in operational guidelines. Even
the two ancient epics, Ramayana and Mahabharata, have substantial
relevance even in this modern world in terms of basic principles of
statecraft and governance. Santi Parva of Mahabharat has devoted
considerable space to Raj Dharma which aims to establish good 16governance in the society. We can nd that the most of the basic features
of modern day concept of good governance, participation of people in
decision making, responsiveness of the government, well being and
prosperity of the people, efciency of administration, overall
development of the political community, standard of life, ethical
awareness, recognition of human dignity and economic afuence have
got prominent place in the administrative structures postulated by
Kautilya in his Arthashastra. This not only shows the great concern of
the philosopher for the well being of people but also brings forward the 17
‘Indian’ model of good governance before the academic society at large.
Development during Mughal rule
th thDuring period of 15 to19 century India was ruled by Mughals and they
brought drastic and welcoming changes in the governance system which
14 O.P. Dwivedi and D.S Mishra, “Good Governance: A Model for India” Handbook of Globalization, Governance and Public Administration, (Taylor and Francis, New York, 2007).15 Sanleev Kumar Sharma ”Indian Idea of Good Governance: Revisiting Kautilya’s Arthshastra” 17-18(1-2) Dynamics of Public Administration 8 (2005).16 Sanjeev Kumar Sharma, “Good Governance in Ancient India: Remembering Kingship in Shantiparavam of Mahabharat” 4 (1) Meerut Journal of Political Science and Public Administration, 109 (2003).17 P.Chitra and M. Neelamalar “Right to Information Act – A Tool for Good Governance and Social Change through Information Technology” 4(8) International Journal of Scientic & Engineering Research, 106(2013).
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was a combination of certain features of Arabic administrative concept
and certain classical Indian practices. Arabic Pattern is reected in
separation of two political functions, namely governorship as the head of 18
military and police and treasury as the head of the revenue, ancés, etc.
Development during British rule
East India Company was the founder of British rule in India. In the early
days the company came to India with the trading purpose but as the time
goes they became the real ruler of India. They changed the frame work of
administrative system slowly and steadily. The two reports of 1854 one
by Stafford and Charles and other by T.B. Macaulay shows the system
designed by the British rulers for governing India. As the Public services
structure shows, the governance during the Raj had, as its objective,
Political consolidation, economic exploitation and administrative
elimination, through which the colonial masters maintained a tight hold 19over the empire. As the time goes these British rulers had taken certain
steps for the development of India, though the main purpose behind those
development work was to impose British rule over the native people
more emphatically and enjoyment of more and more benets as rulers.
These development works had a good impact upon the Indian governance
structure in a long run.
After independence
Leaders of the independence movement in India were aware of the
existing inequities and injustices in the society. On achieving
independence in 1947, they had the choice to adopt governance either by
an authoritarian rule or through the Rule of Law and they fortunately
chose the latter one. Over the subsequent years India has experienced
signicant political and economic progress. Democracy in India has
indeed put down rmer roots and economic growth accelerated. At the
time of framing our constitution, the framers made a conscious and
18 Gagandeep Dhaliwal, “A Review on Human Rights and Good Governance and Status of Human Right in India” 3(2) International Journal of Education and Applied Research 25(2013).19 Ibid.
139
deliberate effort to adopt democracy or rather the democratic way of life
as the backbone of our constitution. In the preamble at the time of stating
the objects of our constitution, it is clearly stated that constitution aimed
at securing for all its citizens justice, social, economic and political,
equality of status and opportunity, besides liberty of thought, expression,
belief, faith and worship and fraternity. Constitution declares that there is
right to equality before law and equal protection of law available to every
individual. Even no person shall be deprived from life and personal
liberty except according to the procedure established by law. By
providing this framers tried to curve the arbitrary use of authority by the
people who are in power. Our Constitution also provides real freedom for
each of its citizens. Civil and political rights were, therefore,
incorporated in the Constitution as fundamental rights in Part-III and
made enforceable through judicial activism. The rationale underlying
these rights being that human rights ow from the common humanity and
inherent dignity of every human being irrespective of race, religion,
caste, color, gender, place of birth or status. These rights are not
negotiable and no compromise with their violation is permissible.
In Part-IV of the Constitution, with the aim of creating a welfare state,
economic, social and cultural rights were enshrined as directive
principles of the state policy. These are the guiding principles of
governance. The inter-dependence of both sets of rights is essential for 20
proper development of human personality. The legislature from time to
time passed certain acts, rules, orders etc. for achieving the goals set up
by the Constitution. Though as per Article 37 of the Constitution,
directive principles are not enforceable by court but legislature by
enacting various acts on the basis of the provisions of directive principles
made them enforceable indirectly. The Constitution also cast a duty upon
the government to preserve and promote dignity of the individual and
promote national unity. And with the recognition of human rights in the
20 Madhvi Bhayani, “Challenges of Corruption and Good Governance: A Human Rights Perspective” 71(6) International Proceedings of Economics Development and Research 24 (2014).
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international arena, human rights protection and promotion becomes one
of the posthumous goals of good governance. Thus, in assessing the
quality of governance the means employed and the result achieved in
fullling the above objectives have to be the real criteria.
VII Challenges of good governance in India
The Indian governance scenario during the last 69 years is a rather of
gloomy one, uninspiring and dismal. After independence, there was a
glimpse of hope for rst few decades; thereafter the scenario has changed
dramatically towards the worse. During the freedom moment our
national leaders through various objectives like swaraj, ahimsa,
Satyagraha wanted to introduce good governance in India. After
independence the Constitution of India was framed by keeping in mind
the moral and human values and inclusiveness of all in the governance of
the country. The system failed on various points, the major ones being:
vision and mission; lengthy legal system; bureaucratic dependency;
corruption; population; education; and leadership vacuum. Moreover,
the process of modernization and social, economic and political changes
over the past few decades have given rise to a new set of problems in the
arena of governance. These are lack of women empowerment, growing
incidence of violence, environmental security, and lack of empowerment
of socially and economically backward people, challenges of
globalization, changes in science and technology. Unnecessary delays in
providing justice, mindset of the people, and complex procedure of
administration, and over centralisation of administrative system have
rendered even the best of schemes ineffective. Bureaucracy is called the
engine of good governance. But because of corruption and lack of
willingness to work existing amongst our bureaucrats, our government
cannot achieve success in implementation of these programmes.
Securing justice
The Constitution framers enshrined the concept of securing justice in the
preamble and also effort has been made to secure proper working of an
independent judiciary. But till date lakhs of people in India failed to
141
access the justice when required. There are various inter-related aspects
of securing justice including security of life and property, access to
justice, and rule of law.
The most important duty of the State is to provide security of life and
property of every citizen. This responsibility of the Indian nation-state is
being seriously threatened particularly in areas affected by terrorism
(Jammu and Kashmir, Punjab), insurgency (North-Eastern States), and
naxalite violence in 150 districts of India’s mainland. Union and State
governments fail to take strong actions to overpower the elements of
terror, insurgency and naxalite violence.
Access to justice is one of the basic human rights recognized at the
international level. There should proper application of law to protect the
interest of every individual. In actual practice there are several
countervailing factors. Some citizens do not know their rights. The most
severe challenges in this respect are the length and cost of adjudication as
legal proceedings took years to resolve and lakhs of rupees to determine
the rights and the judicial system lacks personnel and logistics to deal
with these matters. State has a duty to provide free legal aid, speedy trail
and fair trail to every individual who came before the judiciary for proper
determination of their rights. Systematic approaches are, therefore,
needed for strengthening access to justice. At the same time ad hoc
measures are required to provide remedy to the needy citizens. Even to
represent the unorganized sector the concept of public interest litigation
is incorporated in the Indian legal system. But full utilization of the
machinery is far to achieve.
Empowerment
Empowerment is the most important aspect for proper participation in the
decision making policy. Poverty reduction is an empowering approach
and it needs to be based on the conviction that poor people have to be both
the object of development programmes and principal agency for
implementation of that programmes. Our Constitution is committed to
two different set of theories. First, the principle of equal status and
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opportunities to all and the second, the principle of redress of
educational, economic and social backwardness. However,
notwithstanding, an increasing role of various other social institutions in
the modernization and progress of the country, the state continues to have
a leading say in transformation of society to make it just and equal.
Our Constitution framers provide special provisions for the reservation
for the scheduled castes and schedules tribes people. The Supreme Court 21in Indira Sawhney & Others v. Union of India, while upholding the
reservation of 27% of vacancies in the civil posts and services in the
Government of India in favour of other backward classes provided for
exclusion of socially advanced persons or sections among them
commonly known as “the creamy layer”. But till today the term creamy
layer has not been properly dened by the government and even though
some times the initiative has been taken but that was in vain due vote bank
pressure. So the general caste people have now become minority one.
The reservation should not be on the basis of caste system. It should be on
the basis of economic capacity of the individual, only then proper
empowerment can be achieved. There is another aspect of empowerment
that is women empowerment. Women should be treated on the same
footing with the men. With the development of the society now various
reservations are recognized for the women within the parliament and
outside the parliament. But we should understand that only reservation
will not change the real status of women and backward class people,
rather its required education, elimination of poverty, employment, food
and other basic necessities. Only then these people can be properly
empowered. Access to information is another way of empowerment of
the common man otherwise commoners remain ignorant of various
schemes and are unable to resist when their rights become causality. At
the same time, people remain ignorant in terms of the ways and means
through which they can obtain their entitled rights from the concerned 22departments legally.
21 1992 (3) Suppl. SCC 212. 22 Keshabananda Borah, “Right to Information Act: A Key to Good Governance” International Journal of Humanities and Social Science Invention 11 (2013).
143
Employment
Unemployment is the most burning problem in the present Indian society.
Creation of new employment opportunity for the youth is one of the most
challenging tasks for India’s political economy. At present India’s
working age population is over 50 per cent. This share will continue to
rise up to 60 per cent within next three decades. A fast-growing working
population will ensure more skilled workers, curtail of cost, more saving
and hence more investment. This mechanistic view of growth assumes
that demography is destiny. But population growth by itself does not add
to prosperity, unless there is proper educational system and employment
opportunity. If we fail to generate employment and equip the youth with
good quality education and practical training, India’s demographic
dividend could become a demographic liability. With the effect of
globalization the population pressure over the urban areas are increasing
rapidly. People from various rural parts of the country are coming to the
urban areas for their livelihood. But governments fail to provide
employment opportunity to them. Even now private organiasations are
playing an important role in this respect. They are providing job
opportunities to lakhs of educated youth.
But it has to be admitted that though there is a growth in private sector still
some issues related to it are also accompanied with them. The basic
payment structures are not at all satisfactory. Even after having higher
education youths are failing to obtain suitable employment for them.
With the impact of urbanization competition are getting much harder one
and it has a direct impact upon the mental condition of the youths, which
is again very much dangerous for the nation’s future. There is
requirement also to improve the working condition of the labour, because
they are the backbone of the modern industrial society. Even there is a
requirement to promote the use of modern technology in the agricultural
eld to increase the productivity. Marketing of the agricultural good and
abolition of middle man policy are another aspect that requires attention
immediately. If there is growth in the village economy that will decrease
the trade of urbanization and also will has a clear impact upon the
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employment picture of the nation.
Delivery of welfare services
From the Constitution it is very much clear that India is a welfare state. It
is the basic duty of the governments to provide necessary welfare
machinery like food, education, health care to the citizens of India. The
objectives of public service should be based upon the principle of 23
common public well-being or the well-being of all citizens. It is true that
both the Government of India and the State Governments have been
allocating a fairly good size of public funds to health, education and
public distribution system. But a searching scrutiny will reveal that these
facilities fail to reach to the poor class of the society. The principal feature
of the scheme of effective delivery of services needs to be seen in the
context of the fact that demands have to ow from the bottom up and not
the top down. But practically the situation is different. The schools and
health centers in areas where poor people live are often not functioning
and extremely low in technical quality.
There are three institutions which have played the most important roles in
improving public service delivery in India: (i) the judiciary; (ii) the
media; and (iii) the civil society. The Supremacy and independence
character of the judiciary have a great inuence over the other organs of
the government. Writ jurisdiction of the Supreme Court and high courts
played an important role in this respect. public interest litigation has
emerged as the most powerful tool in the hands of individuals as well as
nongovernmental organizations to force the governments to perform
their duties properly. In recent years, the Supreme Court has intervened in
diverse matters to improve delivery of services. The apex court
recognised right to education, right to food, and right to health as
fundamental right. Unfortunately, the judiciary is also suffering with
millions of pending cases, non disposal of the cases, lengthy procedure,
and inefciency of the ofcials. From its early time media, both
23 M. Shamsul Haque, “The Diminishing Publicness of Public Service under the Current Mode of Governance”, 61(1) Public Administration Review 65 (2001).
145
electronic and print, have emerged as a voice of the common people
which in turn has exerted enormous pressure on public ofcials to deliver
goods. The large numbers of non-governmental organizations in
different elds become the spokespersons of the concerns of the public
with a degree of regularity. But till delivery of welfare services are
lagging behind due absence of proper infrastructure and inefciency and
negligence of the ofcials.
Bureaucracy
In India the bureaucracy system always is the blocking stone for fast
implementation of the people common cause and government policies.
The Indian administrative system is fully dependent upon this system.
The success of the government policy always depends upon the
willingness and efciency of the bureaucrats. Bureaucratic complexities
and procedures make it difcult for a citizen as well as the civil society to
get the fruit of the delivery of services. The liberalization of the Indian
economy has created an environment in which there has been increasing
emphasis on responsive administration. This requires transparency in
administration, drastic reforms in civil services and a system which
functions as a means for the quick redressal of citizens’ grievances 24.
Moreover, the lack of accountability of the government ofcials is the
cause of people’s negative approach over government schemes. Secrecy
that has been associated with the administrative system from colonial
times, besides generating corruption, has also led to injustice and
favouritism.
There is another problem too. The stability and efciency of the
bureaucrats are very much dependent upon the will of the political
leaders. Sometimes tenure of a bureaucrat in an ofce is less than its
normal tenure, which also hamper the development procedure. Stable
government with majority is always preferable than a united front
government. Even the multi party politics in India is also a reason for lack
24 Chetan Agrawal, “Right to Information: A Tool for Combating Corruption in India” 3(2) Journal of Management & Public Policy 26 (2012).
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of government efciency. Emergence of regional parties is barriers for
nation’s wide development procedure. So there is a requirement of
transparency, accountability, efciency, willingness to work on the part
of the bureaucrat, which is not present in the Indian administrative
scenario.
Criminalisation of politics
Criminalization of politics is one of the major challenges to good
governance since it has an immediate bearing on the choice of candidates
in an election and goes to the root of expectation of good governance
through elected representatives. There are members of Parliament of
India and Vidhan Sabhas who are accused of various criminal and white
color crimes. A political culture seems to be taking roots in which
members of State Legislatures and Parliament are using their ofces for
seeking private gain and for making money. Such elements have also
found place in Cabinet of Ministers and due coalition politics a Prime
Minister or a Chief Minister cannot take strong actions against them. The
criminalisation of the political process always has a baneful inuence on
governance. The unholy nexus between politicians, civil servants, and
business houses also played an important role in determining governance
policy. The process of judicial accountability has succeeded in sending
several legislators and ministers to jail. But by taking bail or with an
excuse of physical illness they are enjoying every available benet. There
should be an end to this practice. The right to contest in an election should
be taken away from the convicted criminals and interim suspension on
this right should be there if charge has been framed against any political
leader on the basis of any accusation of committing any criminal offence,
until they are acquitted by the appropriate court . Election commission
has a vital role to play in this respect.
Corruption
Corruption in India is the biggest challenge to development. The culture 25of corruption has become well entrenched in the society. Good
25 Jeevan Singh Rajak “Right to Information Act: A Vital Tool to Fight against Corruption in India”, International Journal on Political Science and Development 68 (2014).
147
governance implies the process of decision-making and its
implementation free from abuse of power and corruption. Culture of
secrecy resulted in fertile growth of corruption. In face of non-
accountability of the public authorities and lack of openness in the
functioning of government, abuse of power and corrupt diversion of the 26public money was the order of the day. Human greed is the driver of
corruption. But the structural incentives and failure to punish the corrupt
have contributed to the rising curve of graft in India. In the present
scenario in every footings of administration corruption became a part and
parcel. Our structure forces every individual to be a part of the same. The
complex and non-transparent system of command and control, monopoly
of the government as a service provider, lack of information and
awareness and underdeveloped legal framework have provided
incentives for corruption in India. A conscious effort for spreading of
public awareness and also for empowering the existing anti-corruption
agencies would be required.
VIII Good governance and judiciary
After the independence, Indian judiciary assumes a signicant position
as it is the guardian and custodian of the Constitution. Even Constitution
framers recognized supremacy of judiciary over other organs of the State.
It guards against the violation of fundamental rights, against
discrimination, abuse of state power, arbitrariness etc. One of the most
important principles of just democratic governance is the presence of
constitutional limits on the extent of government power. Such limitation 27
is well imposed in form of basic structures of Constitution of India. Such 28 29limits include supremacy of the Constitution, periodic elections,
26Devakumar Jacob, “Collateral Damage: An Urgent Need for Legal Apparatus for Protection of the Whistleblowers & RTI Activists” 19(4) IOSR Journal of Humanities and Social Science 1 (2014).27 Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461.28 In Keshavananda Bharti’s Case, Sikri, C.J. explained that the concept of basic structure included Supremacy of the Constitution, Republican and democratic form of government, Secular character of the Constitution, Separation of powers between the legislature, executive and the judiciary, Federal character of the Constitution.29 Indira Nehru Gandhi v. Raj Narain, (1975) 3 SCC 34.
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30 31guarantees of civil rights and an independent judiciary, judicial review, 32secularism, separation of power between the legislature, executive and
33 34the judiciary, parliamentary form of government, which allows
citizens to seek protection of their rights and redness against government
actions. The doctrine of non-amendability of the basic structures of the
Constitution implies that there are certain provisions in the Constitution
which cannot be amended even by the prescribed procedure given for the 35amendment of the Constitution. More over this non-amendability of
basis structure put a limit on the amending power of the parliament and in
various cases the apex court declared various amendments as
unconstitutional as those are violating the basic structure doctrine. These
limits help other branches of government to remain accountable to each
other and to the people at large. An independent judiciary is important for 36preserving the rule of law and is, therefore, the most important facet of
good governance. There is no area where the judgments of the Supreme
Court of India have not played a signicant contribution in providing
good governance, whether it is environment, human right, gender justice,
health care, police reform, elections etc.
The Supreme Court has, over the years, elaborated the scope of
fundamental rights and thereby upholding the rights and dignity of the
individual, in true spirit of good governance. In case after case, the court
has issued a range of commands for enforcement of law, dealing with an
30Union of India v. Sankal Chand, Himmatlal Sheth, AIR 1977 SC 2328.Kumar Padma Prasad v. Union of India, AIR 1992 SC 1213. State of Bihar v. Bal Mukund Shah, AIR 2000 SC 1296, Supreme Court Advocates-records- Association v. Union of India, AIR 1994 SC 268. 31 S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386; L.Chandrakumar v. Union of India, AIR 1997, SC 1125; Waman Rao v. Union of India, AIR 1981, SC 271; Minerva Mills Ltd. and Ors. v. Union of India and Ors. AIR 1980 SC 1789 etc.32 S.R. Bommai v. Union of India, AIR 1994, SC 1918, Poudyal v.Union of India, (1994) Supp.1 SCC 324.33 Uee Electrical Engineers P. Ltd. v. Delhi Development Authorit, 2005 (1) CTLJ 363 Del.34 State of Bihar v. Bal Mukund Sab, AIR 2000 SC1296.35 Ashok Dhamija, ‘Need to Amend a Constitution and Doctrine of Basic Features’, 341(Wadhwa Nagpur, 2007)36Kihoto Hollohan v. Zachillhu and Ors., AIR 1993 SC 412.
149
array of aspects of executive action in general, and of police at the cutting
edge level in particular. Hence, it is evident that the Indian judiciary has 37played a proactive role in realizing various rights of its citizen.
38 39Education for all and equal rights of minorities in this regard are other
aspects which have clear inuence on the components of the good
governance and judiciary played an effective role in securing the same
and forced the legislation to incorporate various rights such as right to
education etc. as fundamental rights under the Constitution of India by
way of amendment. But at the time of responding to public interest
litigation on making good governance an explicit right, the Supreme
Court held that it was not in favor of declaring good governance as a
fundamental right as this would bind the court to looking into every
aspect of governance which will put more burden upon the already 40overloaded judicial system of the country.
Further, the constitution of India recognised protective discrimination
under article 15 (4) and 16 (4). Apparently these are in contradiction with
the concept of equality before law. But the judiciary has chosen the way
of make harmonies construction as a mode of interpreting this two. 41Primarily in M.R. Balaji v. State of Mysore and T. Devadasan v. Union
42of India the Supreme Court held that articles 15(4) and 16(4) are the
exception to the general rule embodied in articles 15(1) and 16(1)
respectively as well as in article 14. But in State of Kerala v. N.M. 43
Thomas by majority the apex court rejected the prior view and held that
37 Ansbu Jain, “Good Governance and Right to Information: A Perspective” 54 (4) Journal of the Indian Law Institute 506 (2012).38 In Re. Kerala Education Bill, 1957. 1959 SCR 995; The Ahmedabad St. Xavier’s Society v. State of Gujarat (1974) 1 SCC 717; St. Stephen’s College v. University of Delhi (1992) 1 SCC 558. 39 Mohini Jain v. State of Karnataka (1992) 3 SCC 666; Unni Krishnan v. State of Andhra Pradesh (1993) 1 SCC 645; T.M.A.Pai Foundation v. State of Karnataka (2002) 8 SCC 481; Islamic Acadamy of Education v. State of Karnataka (2003) 6 SCC 697; P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537.40 Godbole, Madhav, “Good Governance: a Distant Dream” 39(11) Economic and
Political Weekly 1103 (2004). 41 AIR 1963 SC 649.42 AIR 1964 SC 179.43 AIR 1976 SC 490.
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150 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
articles 15(4) and 16(4) were emphatic assertions and directions to the
State to take effective afrmative steps to enforce the concept of equality
as laid down in articles 14, 15 and 16 and to achieve that State can make
reservation in order to provide adequate representation of SCs, STs and
other backward class people in the higher education and state 44employment. Moreover, In the Mandal Commission case, the Supreme
Court has clearly and authoritatively laid down that the socially advanced
members of the backward class, the “creamy layer”, has to be excluded
from the benets provided by the state and the benet of reservation
under article 16(4) can only be given to a class which remains after the
exclusion of the “creamy layer”. But as regard the “creamy layer” among 45the SCs and STs , the Court has so far declined to apply but there is no
constitutional obstruction in applying it in future.
Criminalization of politics is another major challenge in achieving good
governance. Right to vote ows from article 19(1)(a) of the Constitution.
Similarly right to get information is ‘a natural right’ derived from the
concept of democracy. In the case of Union of India v. Association for 46
Democratic Reforms, the apex court brought a major electoral reform
by holding that a proper disclosure of the antecedents by candidates in
election in a democratic society might inuence intelligently the
decisions made by the voters while casting their votes. The Court further
observed that casting of a vote by a misinformed and non-informed voter,
or a voter having a one sided information only, is bound to affect the
democracy seriously, and now it is obligatory on the part of candidates at
the election to furnish information about their personal prole,
background, qualications and antecedents. This made clear impact on
the process of achieving good governance. Accountability of the
executives is also important and in few cases the apex court even 47
cancelled the appointment on that ground. So the judiciary by using
44 Indra Sawhney v. Union of India AIR 1993 SC 477.45 Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1; Avinash Singh Bagri v. IIT Delhi, (2009) 8 SCC 220.46 (2002) 5 SCC 294.47 PIL v. Union of India, (2011) (3) SCALE 148.
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judicial review plays a role of philosopher and guide in the path of good
governance.
IX Role of e-governance and social media
The “e” in e-governance stands for ‘electronic’. Thus, e-governance is
basically associated with carrying out the functions and achieving the
results of governance through the utilization of information and
communications technology. While the main motive of governance is to
safeguard the legal rights of all citizens, an equally important aspect is
concerned with ensuring equitable access to public services and the
benets of economic growth to all. It also ensures government to be
transparent in its dealings, accountable for its activities and faster in its
responses as part of good governance. In this era of technology all these
can be achieved through proper implementation of e-governance. In the
year 1987, government of India has taken the rst step towards e-
governance by launching national satellite-based computer network.
After that various schemes in the eld of banking, pension, immigration,
visa, post, public distribution system, health care etc. has taken by
the central and state governments. e-ofce and e-corner are
successfully acting as a popular service provider. Recently the unique
identication project is conceived as an initiative that would provide
identication for each resident across the country and would be used
primarily as the basis for efcient delivery of welfare services. Even most
recently m-Governance, i.e., mobile governance becomes a part of
effective tools for providing e-governance to citizen at large.
But in a country like India e-governance also facing certain challenges
like technological inefciency, cost, stereo type mentality of government
ofcials and political resistance. But all these can be handled if
appropriate steps can be taken towards capacity building within the
government and creation of general awareness about e-governance
among the citizens as e-Governance is no longer a matter of choice, but
an absolute need of the day.
At present the media are not conned to print and broadcast. With the
Good Governance and its Challenges in India: An Overview
152 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
rapidly changing and converging technologies, new media, especially
the ‘social media’ are also mushrooming and becoming part of everyday
life of the informed citizens. As much as traditional media can promote
good governance, social media are also playing important roles in this
aspect. The role of the social media, in promoting good governance is
being recognized by the government and policy-makers. Now with the
help of computer social networks such as Facebook and Twitter
information can be spread among the millions in a blink of an eye. The
youth successfully used these modern tools to plan protests and create
social and political change all over the world. In India recently at the time 48
of protest against Delhi Rape Case the power of the social media forced
the government the make a change in existing laws. As a whole
technological development has a clear impact upon the governance
procedure and gives a platform to express the opinion regarding
government activities and promote certain path changing movements all
over the globe.
X Conclusion
Governance is the weak link in our quest for development, prosperity and
equity. It is also a widely accepted fact that good governance is dependant
not merely upon good policy advises but more importantly on the
processes of achieving them and implementation of them. Favouritism in
resource allocations, excessive government interventions, and
widespread corruption has a greater inuence on the non-development of
the lower class people of the society. The governance, which fails in the
eld of proper service delivery, cannot take steps towards prosperity.
Poverty reduction depends on the quality and timely delivery of services
to poor people. Elimination of corruption and transparent governance are
not only moral imperatives but requirements for a nation aspiring to catch
up with the rest of the world. Improved governance in the form of non-
expropriation contract, enforcement and decrease in bureaucratic delays
always have a great impact on raising the living standard of every
individual of the society signicantly.48 State v. Ram Singh and Anr., March 13, 2014.
153
The renowned French philosopher Michel Foucault once opined, power
is derived from knowledge and information is the basic component of
knowledge. The free access to information and participation of people in
government decisions develops the transformation of the governance
into good governance. So, it is the duty of government to inform citizens 49about day to day happenings whatever within the government. India
always took pride in being the largest democracy, but with the passing of
the Right to Information Act in 2005, it has also become an accountable, 50
interactive and participatory democracy. This right has catapulted the
Indian citizen on a pedestal from where he can take stock of
administrative decisions and actions and make sure that his interests are 51protected and promoted by the government. By this Act the citizen of
India can now question, inspect, review and assess government acts and
decisions and documents to ensure that these are consistent with the
principles of public interests, good governance and justice and thereby
will take the nation in right direction of overall development. The Act has
produced a better impact on the quality of the life of the poor and
marginalized and also brought positive changes in the governance. 52Information is now the sole of every government. The necessity for
transparency and efciency in the governance policy and proper
implementation of that policy in qualitative way become the call of time
to achieve the goal of good governance. It is always important duty of the
government to analyse their policy, implementation system, redressal
procedure thoroughly and to improve it whenever necessary. So at the
end we can say for achieving good governance in a country like India,
there should be constructive mechanisms and procedures that will enable
the three principal actors – government, market and civil society – to play
in concert role and to supplement each other’s capability, and then only
we can get the desired result of good governance.
49Rouf Ahmad Bhat, “Right to Information Act: A Tool For Good Governance” 5 (5) Research on Humanities and Social Sciences 185 (2015).50 Sunderam, Karthik, “Right to Information and Democracy” 4 Journal of Symbiosis Law College 104 (2004).51 Smita Srivastava, “The Right to Information in India: Implementation and Impact” 1 (1) Afro Asian Journal of Social Sciences 1 (2010).52 C.L.V Sivakumar, “The Right to Information Act: 2005 Perspective-practice-issues” 1(2) International Journal of Management & Business Studies 28 (2011).
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154 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
* Ph.D Scholar, National Law University, Jodhpur.
CORPORATIZATION OF AGRICULTURE AND ITS EFFECT
*Tejendra Meena
Abstract
Corporatization of agriculture is a very crucial issue not only for India but for most of the
world and specically developing countries like India where a huge number of the
population is involved in primary sector of production. This article focusses only on the
Indian phenomena of corporatization of agriculture but will also try to explain the meaning
of corporatization and the difference between corporatization and privatization.
Subsequently, the process of corporatization of agriculture in India shall also be explained. It
also discusses the impact of corporatization of agriculture in India. It also analyzes some of
the law reforms . Lastly, the author and policies in India relating to agricultural labour
provides a conclusion along with some recommendations to overcome the agrarian crisis
Indian facing today due to corporatization of agriculture sector.
I Introduction
THE CONCEPT of ‘corporatization of agriculture’ is making huge
impact in the countryside and is affecting more than 60% of the
population. The process is happening rapidly through various
government polices and it happened more rapidly in the last two decades.
It involves the issues of poverty, farmer’s lives, unemployment,
inequality, unsustainable growth, food security; quality of food and many
such allied concepts, which have not been given much of an importance
by the Indian media.
What is corporatization?
Corporatization means changing the structure of the government owned
entity into a legal entity with the structure as found in the public trade
companies, as dened by Investopedia. Corporatization is not the same as
privatization. Baker nicely explains what corporatization is while
comparing it with the privatization. ‘Privatization entails a change of
ownership or handover of management, from the public to private sector.
Corporatization entails change in resource management practice that
introduce commercial, such as efciency, methods, such as cost benet
assessment, and objective such as prot maximization. Privatization,
155
thus entails organizational change, as a distinct form of corporatization,
which entails institutional changes (in the sociological sense of rules, 1norms and customs). So corporatization is transferring the works of
government public service to a separate legal entity which is owned by
public sector and have dictation from the government, generally
privatization comes after the corporatization. India has had privatized the
many sector like natural gas exploration etc.
What does ‘corporatization of agriculture’ mean in India?
Further, if we go in detail of the means of production land comes the rst
but till now corporations are not allowed to hold land for agriculture
purpose. The new introduced farming polices in India adopt some new
trend like contract farming, leasing of land to corporate for farming
which is the uppermost form of corporatization in India.
Corporatization of agriculture has been explained as the agenda of
neoliberal policies in the agriculture sector. It is further said that it is a part
of the broader agenda of globalizing Indian agriculture. For this, goods
have to be produced at the cheapest rates in order to be able to compete in
the world market. Earlier, production was based on self reliance and self
sufciency, which now needs to be abandoned and restructured to suit 2
global markets.
II Process of corporatization of agriculture sector
There are various factors which can be termed as being a part of
corporatization of agricultural sector in India but it includes mainly
following:
1. Corporatization of fertilizers industry
1Magdhal, Jorgen Eiken, “From Privatization to Corporatization - Exploring the Strategic Shift in Neoliberal Policy on Urban Water Service,” Available at:, http://www.slideshare.net/FIVAS/from-privatisation-to-corporatisation-12173631?next_slideshow=1 (Last visited on Sept.12, 2016). 2Jayati Ghosh, “Corporate Agriculture: The Implications for Indian Farmers - Corp_Agri.pdf,” Available at: http://www.macroscan.org/fet/dec03/pdf/Corp_Agri.pdf. (Last visited on Sept. 14, 2016).
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156 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
2. Corporatization of seed processing industry
3. Corporatization of electricity generation and distribution.
4. Corporatization of water distribution
5. ContractfFarming
6. Corporate farming
1. Corporatization of fertilizers industry
When India started Green Revolution, India used some hybrid seeds
which produce more yields with the help of fertilizers. India from that
time only adopted policies of liberalizing fertilizer production and
distribution. Government decontrolled the price and distribution of 3potassic and phosphate fertilizers in 1992. In 1997, the government
introduced policy changes towards greater investment in private sector of
fertilizers. Because of this, the share of the public sector started to decline 4
and that of the private and co-operative sector to improve. These
ultimately led to price control in the hands of a few corporate
organizations. In 1961 when India just started with the Green Revolution,
public sector was having 87% of the nitrogen nutrient fertilizer
production capacity, whereas just before era of liberalization in 1991 it
was 52.9% and now before two years it was 29.4%. Same gradual decline 5
can be seen in other nutrient fertilizers with phosphate. Again the price
of the fertilizers was affected because the raw materials used in it were
controlled by a few corporations. For the production of urea and other
ammonia based fertilizers, methane presents the major input which is
gained from natural gas/associated gas, naphtha, fuel oil, low sulfur
heavy stock (LSHS) and coal. In the more recent past, production has
more and more switched over to the use of natural gas, associated gas and
naphtha as feedstock. Out of these, gas is most hydrogen rich and easiest
3"Fertilizer Policy | Government of India, Department of Fertilizers, Ministry of Chemicals and Fertilizers,” Available at: http://fert.nic.in/page/fertilizer-policy (Last visited on Sept.12, 2016).4Ibid.5 Ibid.
157
6to process due to its light weight and fair abundance within the country.
Gas prices are controlled by the few corporations in India which
automatically affect the price of fertilizers.
The corporate are now able to control major portion of the production of
fertilizers. The scarcity of fertilizers was so much that the fertilizers
distributed in the presence of the police personnel in 2008-09. The Hindu
reported this crisis with an article titled ‘Fertilizing prot, sowing misery’
which indicates that this crisis will lead to huge prots to private fertilizer
producers. The country often faces such crisis when ironically the Indian 7fertilizer industry ranks third in the world.
2. Corporatization of seed industry
India has reformed its technology as a part of its liberalization process
since the late 1980s and 1990s. The government launched a New Seed
Industry Development Policy in 1988 that was supposed to encourage the 8
private sector to play a larger role in the seed industry. Today, the Indian
seed industry with turnover of over Rs. 15,000 crores ranks fth in the 9world. According to the report of the Seed Division of Agriculture
Department, private sector has started to play a signicant role in the seed
industry over the last few years. At present, the number of companies
engaged in seed production or seed trade is of the order of 400 or 500.
However, the main focus of private seed companies has been on the high 10value low volume seeds. Government also has corporatized structure in
the name of public sector industry.
6 Ibid.7P.Sainath, “Fertilizing Prot, Sowing Misery -Opinion- The Hindu, Available at: http://www.thehindu.com/todays-paper/tp-opinion/fertilising-prot-sowing-misery/article1278237.ece. (Last visited on Sept. 16,2016).8“Liberalization’s Impact on the Indian Seed Industry: Competition, Research, and Impact on Farmers | Seed buzz,” Available at:, http://www.seedbuzz.com/knowledge-center/article/liberalization%E2%80%99s-impact-on-the-indian-seed-industry-competition-research-an (Last visited on September 16, 2016). 9 M . R . S u b r a m a n i , “ S e e d s o f F o r t u n e | F r o n t l i n e , ” Av a i l a b l e at:http://www.frontline.in/other/data-card/seeds-of-fortune/article4803870.ece. (Last visited on September 16, 2016).10"Seednet India | Ministry of Agriculture, Government of India,” Available at: http://seednet.gov.in/. (Last visited on Sept.12, 2016).
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158 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
3. Corporatization of electricity generation and distribution
Electricity is the sub.-matter of the Concurrent List according Entry 38 of ththe VII Schedule read with article 245 of the Indian Constitution. Before
1991 Indian electrical power sector was publicly owned and vertically
integrated. Following India’s independence in 1947, the Electricity Act
of 1948 led to the establishment of State Electricity Boards (SEBs),
operating vertically-integrated generation, transmission, distribution,
and retailing activities. The national and state governments shared
control of the power sector, with SEBs exercising signicant autonomy,
but relying on the national government in the form of technical advice
from the Central Electricity Authority (CEA) and nancial support from
the Power Finance Corporation (PFC).
In 1991 nancial crisis brought on by high levels of indebtedness at all
levels of government triggered wide-ranging reforms of much of the
economy, including the power sector. Indian Government allowed
participation of private rms in the generation of the electricity. This was
done through the legislative enactment named Electricity Act, 1991. Till
this time only the electricity generation sector was privatized but through
the Electricity Act of 1998 corporatization and privatization of the
distribution sector was also encouraged. Act of 1998 established the
Central Electricity Regularity Commission (CERC) and also encouraged
states to establish State Electricity Regularity Commission (SERCs) and
unbundled State Electricity Boards. Almost all the states sooner or later
constituted CERCs and unbundled State Boards. These Commissions
were empowered with setting tariffs at levels that would enable cost
recovery. State boards were replaced by state owned companies. Thus,
the electricity sector fully corporatized. Electricity Act of 2003 going one
step ahead fully privatized the Electricity power sector. It allowed trading
and transmission of the electricity across the states which lead to model
of multiple buyers and multiple sellers with fully competitive markets.
The Act of 2003 provides for this by mandating open access not only in 11transmission, but also in distribution.
11"Policy of Power Ministry | Government of India, Ministry of Power, Electricity Act - 2003,” Available at: http://powermin.nic.in/hi/content (Last visited on Sept.12, 2016).
159
The corporate distributors notoriously do not keep proper nancial 12records. As a result, information about the nancial health of
distributors is not always consistent across, or even within, data sources.
The data shows that annual losses for distributors (after accounting for
government payments to cover subsidized tariffs) growing at 29%for the
four years leading to 2011, when they reached $8.5 billion. Ironically the
data shows after having too much loss distributors report their net worth
in positive. Last data shows that the annual loss in 2011 reached up to
45000 crores (source: Planning Commission (Power & Energy Division)
of Govt. of India, 2011).
4. Corporatization of the water
Water being the subject matter of the sates according to the Entry 17 of th
the State list of VII Schedule read with article 245 governed by the state.
Union can only interfere in the matters of the Regulation and
development of inter State rivers and river valleys. But Ministry of Water
Resources, which has been renamed recently as Ministry of Water
Resources, River Development and Ganga Rejuvenation, was given the
function of the overall planning, policy formulation, coordination and 13
guidance in the water resources sector. This ministry framed policies
and guidelines for management of water resources in country. For the rst
time, policies were framed under in 1987. Again that policy was updated
in 2002. The step towards corporatization has been taken by National
Water Policy of 2012. This policy made a step towards corporatization
and privatization of water. It has been mentioned in the policy that water 14
may be treated as an economic good. This water policy made on some
12"Harvard Kennedy School - The How’s and Whys of Protecting Consumer Financial M a r k e t s , ” A v a i l a b l e a t : h t t p s : / / w w w. h k s . h a r v a r d . e d u / n e w s -events/news/articles/madrian-working-paper-consumer-nancial-markets. (Last visited on Sept.12, 2016). 13"Ministry of Water Resources, River Development and Ganga Rejuvenation, Government of India,” Available at: http://wrmin.nic.in/forms/list.aspx?lid=23(Last visited on Sept.12, 2016).14“Background Note for Consultation Meeting with Policy Makers on Review of National Water Policy -Ministry of Water Resources,” Available at : http://wrmin.nic.in/writereaddata/NationalWaterPolicy/background_note_NWP2002717577543.pdf. (Last visited on Sept.12, 2016).
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160 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
lines as suggested by Jhon Briscoe and R.P.S. Malik in their report called
‘India’s Water Economy: Bracing for a Turbulent Future’, World Bank
Paper, where they argued for privatization of the water distribution in
India. The above mentioned report which shows that how privatization of
water will lead to better efcient water resource management. The
privatization of water in services by the private sector and other non-
govt. supplier was supposed to increase in volume and there were six
desired actors which were projected (1) public provision of services (2)
services by the private sector and non-govt. supplier (3) informal
provisions of services (4) public provisions of public goods (5) Enabling
environment functions not performed and (6) A functioning enabling
environment. As above six categories were designated for privatization
of water and its subsidiary function to be achieved.
This national water policy was highly criticized on various issues. There
was an article in ‘The Hindu’ by Gargi Parasi which criticized this policy 15
on following grounds:
1. National Water Policy that calls for privatization of water-delivery
services and suggests that water be priced so as to “fully recover”
the costs of operation and administration of water-resources
projects.
2. The policy suggests that Government withdrawal from its role as a
service provider in the water sector. Instead, it says, communities
and the private sector should be encouraged to play this role. The
proposals could mean sharp rises in the cost of water for both rural
and urban users — an outcome the policy suggests will help curtail
misuse of a precious but scarce resource.
3. Policy calls for the abolition of all forms of water subsidies to the
agricultural and domestic sectors, but says “subsidies and
incentives” should be provided to private industry for recycling and
reusing treated efuents. It also proposes that subsidy to
15Gargiparasi, “Water Policy Draft Favor’s Privatization of Services - The Hindu,” Available at: http://www.thehindu.com/news/national/article2820794.ece. (Last visited on Sept.15, 2016).
161
agricultural electricity users be curtailed, saying it leads to a
“wasteful use of both electricity and water.”
This policy was taken under the deliberation of the National Water Board. 16The Central Water Commission comes under the National Water Board.
5. Contract farming
Contract farming is a system of cultivation and supply of agricultural
goods that is based on forward contracts between producers/suppliers
and buyers. The essence of such an arrangement is the commitment of the
cultivator to provide a certain quantity of a crop to a committed buyer
(typically a large company). The contract usually requires the farmer to
plant a specic crop on his or her land and to harvest and deliver to the
contractor a certain amount of produce, on the basis of anticipated yield
and contracted acreage. This could be at a pre-agreed price but need may 17
not always be so.
The Government of India’s National Agriculture Policy envisages that
“private sector participation will be promoted through contract farming
and land leasing arrangements to allow accelerated technology transfer,
capital inow and assured market for crop production, especially of 18oilseeds, cotton and horticultural crops”
Indian Government through various policies giving encouragement to
the contract farming. Several State governments, in Andhra Pradesh,
Gujarat, Karnataka, Punjab and Tamil Nadu, are actively promoting
contract farming, changing laws to enable and support it, and providing
companies interested in it with a variety of incentives, including lifting of
land ceilings, subsidies and tax rebates. Other State governments,
including in West Bengal, are under pressure to change their policy
16 Supra note 1417"Jayati Ghosh, Unregulated Contract Farming, Combined with the State Actors’ Tendency to Renege on Their Responsibilities, Can Aggravate the Agrarian Crisis.,”, Available at: http://www.frontline.in/cover-story/recipe-for-crisis/article4894780.ece. (Last visited on Sept.12, 2016).18C. P. Chandrasekhar and Jayati Ghosh, “The Hindu Business Line: Is Corporate Farming Really the Solution for Indian Agriculture?,” Available at: http://www.thehindubusinessline.com/ (Last visited on Sept.12, 2016).
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162 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
19towards contract farming. NABRD took many initiatives to support the
contract farming. It made all contract farming arrangements (within and
outside AEZs) eligible for availing special renance package provided
by it. Renance support extended for contract farming within AEZs and
outside to various nancing agencies during 2004-05 and 2005-06 was to
the tune of Rs.774 crore and Rs.268 crore respectively.
India is supporting the contract farming whereas in the many parts of the
world this practice showed its evil effect. The policies of the government
to allowing contract farming and provide nancial assistance to the
companies to adopt it widely criticized in India. It is said by eminent
economist Utsa Patnaik that Corporatization of agriculture will make 20
farmers debt slaves. Jayati Ghosh, Professor of Economics at JNU, 21
named corporate farming as ‘a recipe for crisis’.
6. Corporate farming
Corporate farming refers to direct ownership or leasing in of farmland by
business organizations in order to produce for their captive processing
requirements or for the open market. When it is done for captive
purposes, it is referred to as captive farming as well, though most of the
time, the two terms are interchangeably used. In India, was corporate
farming also adopted through National Agriculture Policy of Ministry of
Agriculture and Cooperation. Corporates are not allowed to purchase the
land for the purely for agriculture production but through various ways
Indian states are allowing Corporate to enter into farming. Many state
(provincial) governments in India have attempted liberalization of land 22
laws, especially land ceiling laws. The states of Gujarat, Madhya
Pradesh, Karnataka, and Maharashtra have recently allowed agribusiness
rms to buy and operate large land holdings for R&D, and export-
19 Supra note 18.20"Free Trade in Agriculture: A Bad Idea Whose Time Is Done by Sophia Murphy | Monthly Review,” Available at: http://monthlyreview.org/2009/07/01/free-trade-in-agriculture-a-bad-idea-whose-time-is-done/. (Last visited on Sept.10, 2016).21Supra note 18.22Sukhpal Singh, “Corporate Farming in India: Is It Must for Agricultural Development?”, Available at: http://www.iimahd.ernet.in/publications/data/2006-11-06_SSingh.pdf. (Last visited on Sept.18, 2016).
163
oriented production purposes. And, even states like Punjab are planning
to raise the ceiling on holdings in order to encourage large-scale farming
for making farming a viable proposition in the state. The farmer
organizations and political parties representing larger farmers in Punjab
are also lobbying for the removal or relaxation of the Ceiling on Land
Holdings Act in Punjab. Some of the corporate agencies in the state are
asking for longer term lease (20-30 years) of farmers’ land for corporate
farming. The states of Maharashtra and Gujarat have also enacted laws to
allow corporate farming on government wastelands by providing large
tracts of these lands (upto 2000 acres each) to agribusiness companies on
a long term (20 year) lease. The Chhattisgarh State Government is also
making available about 20 lakh hectares of land for jatropha (biofuel)
cultivation. Under the scheme, an individual can lease up to 200 hectares
of land at a price of Rs 100 per hectare, per year for the rst ve years. For
subsequent years, these rates could be increased. The State Government
has already formulated an action plan including the setting up of the
Chhattisgarh Bio-Fuel Development Authority, identifying
Government-owned waste or fallow land as well as constituting task
forces in various districts (The Hindu Business Line, Sept. 2, 2005).
Earlier, the government of Andhra Pradesh had attempted corporate
farming under a project in Kuppam in Chittor district during 1997-2002
where the purpose was to test the feasibility of large scale farming
through contract farming on lands leased by agribusiness company (BHC
Agro India Private Limited - an Israeli consultancy rm).7500 acres of
farm land which has mango occupying 450 acres that makes it the largest
mango orchard in Asia. The farm was originally set up as an
environmental protection measure near its renery. Now, it is being seen
as a protable venture in itself. The company has invested Rs. 10 crore on
the farm during the last 3-4 years and plans to have such farms in other
states like A.P., Maharashtra and Karnataka. The projects are expected to
take seven years for breakeven and give 30% return after that. More
recently, it has been allotted 625 acres of government owned panchayat
and common land for its Rs. 5000 crore agribusiness project in the state of
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164 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
Punjab out of which 300 acres are prime agricultural land. Some of this
land (150 acres) is on a 30-year long lease and the rest is bought by the
company. It is undertaking export oriented corporate farming (50%) also
planning to sell the farm produce in domestic market through Reliance
Retail outlets.
III Effects of corporatization of agriculture
Knel Allen, Political writer having Ph.D. in Political Science from
Harvard, beautifully explains the inhumanity of corporatization structure
while writing that the, “Human beings, whom we only seem to be talking
about when we say something is “privatized,” have complex moralities
and emotions with which we can empathize. No one, however, can
empathize with a corporation, which is not a human being (even if it is
legally treated as a “person”), cannot have emotions, and has only a very
simple ethic calculated to maximize prot. The simplicity of that ethic
makes corporations into shallow and unreliable tools, and sometimes
treacherous masters, of representative democracy. Our language should
reect what we are actually doing when we turn our government over to 23
them.”
Historical experience shows that corporatization gives good output but it
should not be ignored that what it cost while giving good output. Many
times what it cost to give output is more than what is output itself. Under
this part, ‘Effect of Corporatization’, project will try to explore what
corporatization of agriculture cost to the Indian countryside. This part
will also look how corporatization effected the agriculture production.
Does it really increase the agriculture production with the sustainability?
This part also examines its effect on the food prices and food availability.
Effect on Cultivators
In 1991, at the beginning of the privatization era of Indian economy,
numbers of full time cultivators in India were 111.2 Million which
reduced to 103.5 million in 2001 and according to the recent census of 23Kell Alllen, “Say ‘Corporatization,’ Not ‘Privatization,”, Available at: http://www.hufngtonpost.in/entry/say-corporatization-not-p_b_922892.(Last visited on Sept.12, 2016).
165
2011 India only left with the 95.8 million cultivators. According to these
gures there are 15 million less cultivators in 2011 than they were in
1991. That means if we calculate per year more than 7 lakh farmers are 24
quitting farming. That means Over 2,000 fewer farmers every day.
There may be other reasons for reduced numbers like migration,
population control but such huge number cannot be justied by such
reasons.
Again justication for reduced numbers of farmers like migration and
such others fails to prove when data shows the report of the applied
manpower research (IAMR), a part of the Planning Commission states
that the employment in total and in non-agricultural sectors has not been
growing. When there are no jobs in the non-agriculture sectors where
these farmers are going? Answer of this question lies in the data regarding
agriculture laborious which is increasing with higher rate.
Corporatization of farming increased the input cost of the farming.
Various research results state that input cost is increasing at higher rate
than the market price rate of agriculture product in India. S.S. Kalamkar
in his book shows how price of cultivation of principal crops increased in 25Maharashtra. Again the study, conducted by Development Research
group (DRG), part of Reserve Bank of India found rise in the cost of
cultivation particularly in the last three years. It has been noted by the
study that market prices have hovered at a level below the Minimum
Support Price (MSP). The MSP has not been sufcient even to cover the
cost of cultivation which has witnessed a sharp escalation in recent year.
It has been also noted by the study that one of the reasons for the increase
in input cost was deregulation of the prices of fertilizers. Whereas, as it
has been mentioned earlier fertilizer companies in India are making huge
prots and have performed very well in the past few years.
In Maharashtra, BT cotton increased input cost of the cultivation. BT
24Supra note 8.25S.S. Kalamkar, “Agriculture Growth and Productivity in Maharashtra-Trends and Determination” (Allied Publishers Ltd., New Delhi, 2011).
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166 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
cotton required more fertilizers as well as more water which meant more 26input cost. In Vidharbha region of Maharashtra, which is infamous for
farmer suicides, many farmers got a debt onto themselves because of the
high input cost of BT cotton. After a while, most of the farmers switched
from the cultivation of BT cotton to soya bean. In Amravati division
alone, area under cotton cultivation has almost halved, from 15 lakh 27hectares to 8.15 lakh hectares. When one farmer asked about the switch
from BT cotton to soya, he replied that, “cotton is not protable even if
the government gives Rs.10, 000 as minimum support price, because the
production cost of BT cotton is very high. With soybean, one can be sure
of recovering at least production cost.”
In the Vidharbha region, many farmers have committed suicide because 28
of debt. More specically in the Indian context it was the company of
the year 2009 of the Forbes and world’s fth ranked Indian seed industry.
The worst and unfortunate effect of corporatization of agriculture can be
seen in the form of farmer suicide in last two decades. In the decade from
1991-92, Indian farm households in debt went up from 26 per cent to 48.6
per cent. The regions seeing high numbers of suicides are also regions
where peasant indebtedness is very high. Over 80 per cent of Andhra’s 29
farm households, for instance, are in debt. According to Data of NCRB
2, 96,438 farmers have committed suicide from 1995 to 2014 and still
26Amruta Byatnal, “Study Questions Sustainability of Bt Cotton in Water-Starved Vidarbha - The Hindu,” Available at: http://www.thehindu.com/news/national/other-s t a t e s / v i d a r b h a - f a r m e r s - a b a n d o n - c o s t l y - c o t t o n - f o r - e a s y -soya/article5142804.ece%20,%20http://www.thehindu.com/news/national/study-questions-sustainability-of-bt-cotton-in-waterstarved-vidarbha/article3563411.ece. (Last visited on Sept.10, 2016).27Pavan Dahat, “Vidarbha Farmers Abandon Costly Cotton for Easy Soya - The Hindu,” available at: http://www.thehindu.com/news/national/other-states/vidarbha-farmers-abandon-costly-cotton-for-easy-soya/article5142804.ece. (Last visited on Sept.10, 2016).28Tom Post, “The Best Places to Launch a Startup in 2014,” Available at: http://www.forbes.com/sites/tompost/2014/03/13/the-best-places-to-launch-a-startup-in-2014/#70509bca359c. (Last visited on Sept.12, 2016).2 9 "P. Sa ina th , Ways o f See ing , ” Ava i lab l e a t : h t t p : / /www. ind ia -seminar.com/2009/595/595_p_sainath.htm. (Last visited Sept.8, 2016).30"P Sainath: How States Fudge the Data on Declining Farmer Suicides - Rediff.com India News,” Available at: http://www.rediff.com/news/column/p-sainath-how-states-fudge-the-data-on-farmer-suicides/20140801.htm.(Last visited on Sept.8, 2016).
167
counting. Suicide rates among Indian farmers were at a chilling 47 per
cent higher than they were for the rest of the population in 2011. In some
of the state’s worst hit by the agrarian crisis, they were well over 100 per
cent higher. In Maharashtra, farmers were killing themselves at a rate that
was 162 per cent higher than that for any other Indians excluding farmers.
A farmer in this state is two-and-a-half times more likely to commit
suicide than anyone else in the country, other than farmers,’ says P 30Sainath.
Effect on agricultural produce
Economic Survey, 2013-2014 highlights the point that India has had a
record production of food grains and oil seeds this year but it has been
also mentioned that in the case of most of the major crops, higher
production in 2013-14 achieved by expending acreage, rather than 31
productivity.
The share of agriculture and allied (hereinafter referred as agric) sector in
gross domestic product (GDP) declined to 15.2 per cent during the
Eleventh Plan and further to 13.9 per cent in 2013-14 (provisional 32estimates—PE). It is good that India’s economy getting diversied and
we are well doing with service sector and in such case it is common that
your agriculture sector go down but what worrying thing is that
international comparisons reveal the average yield in India is generally 3330% to 50% of the highest average yield in the world.
Effect on food price
The daily net per capita availability of food grain in India sank from 510
grams in 1991 to 422 in 2005.India has emerged as the capital of hunger,
scoring worse than Sub-Saharan Africa in the Global Hunger Index with
one million children dying of malnutrition every year, and as the capital
30"P Sainath: How States Fudge the Data on Declining Farmer Suicides - Rediff.com India News,” Available at: http://www.rediff.com/news/column/p-sainath-how-states-fudge-the-data-on-farmer-suicides/20140801.htm.(Last visited on Sept.8, 2016).31 Economic Survey India 2013-14.32 Ibid.33 Ashwani Mahajan and Gaurav Dutt, “Indian Economy” (S. Chand Publishers, New Delhi).
Corporatization of Agriculture and Its Effect
168 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
of diabetes, with the number of diabetic patients in India having more
than doubledfrom 19 million in 1995 to 40.9 million in 2007, and is
projected to increase further to 69.9 million by 2025. The policy review
laid out that India’s food problem is one of lack of entitlements, not of
lack of food. The fact that as a country India is losing sovereignty over its
food systems translates in livelihood insecurity: if food is no longer a
right but a commodity, it becomes functional to purchasing power, not a
matter of entitlements. This process leaves the country hungry even when 34
warehouses overow with grains and food rots in go-downs.
Mr. P. Sainath, Ramon Magsaysay Award winner, explains the effect of
corporatization of agriculture in food prices in a very nice way in his
speech “There’s big buck in misery. And agriculture is going to be the
great provider of both, big bucks and misery. Remember the food price
crisis last year when the West touted the idea that it was because Indians
and Chinese were eating a hell of a lot more? How were the large
corporations in that sphere doing? As the Wall Street Journal noted ‘at a
time when much of the world is facing food riots, Agriculture is dealing
with a different sort of challenge: huge prots. The grain processing giant
Archer Daniels-Midland, for instance, saw a 42 per cent rise in its scal
third quarter prots, including a seven-fold increase in net income in its
unit that stores, transports and trades grains such as wheat and corn, as
well as soybeans. Seed and herbicide giant Monsanto and fertilizer-
maker Mosaic all reported similar windfall prots in their latest 35
quarter’s.
Advantages of corporatization of agriculture
1. The farmer always has ownership of the land.
2. The agri-business is able to run a business without outright purchase
of the land. Rent rather than buy. Quicker return on investments.
34Vandana Shiva, Press Statement: ‘Creating Food Insecurity: An Analysis into the Structural and Policy Factors Increasing Food Insecurity in India,’ Available at: http://www.navdanya.org/news/105-press-statement-creating-food-insecurity (Last visited on Sept.10, 2016).35Supra note 31.
169
3. The farmer receives a steady monthly income hence not having to
run a business which he is not trained to do.
4. The agri-business is able to get better prices for the produce due to
their distribution network/alliances.
5. The farmer receives better training from the agri-business corporate
and hence continually advances his skills
6. The agri-business is better able to respond to market demands for
food and other cash crops making it a more efcient open free 36
market.
Disadvantages of corporatization of agriculture
1. squeeze on farmers’ incomes, and the threat to the viability of
cultivation, which has come about because of rising input costs and
falling output prices
2. negative impacts on the environment and public health
3. the problem of water and land pollution
4. Politicizing Agriculture
IV Law and policy in India relating to agricultural labour
1. Article 23 of the Constitution prohibits forced Labour.
2. There is no uniform central law to protect and regulate the working
and living conditions of agricultural labour. There are certain laws,
which are applicable to industrial and agricultural labour alike.
These are the:
Wasteland (Claims) Act, 1863
Indian Forest Act, 1927
Workmen’s Compensation Act, 1923
Industrial Disputes Act, 1947
Employers State Insurance Act, 1948
36"A Model for Corporatization of Agriculture in India – The Right’s Rights and Why the Right Is Right!,” Available at: https://rightstateofmind.wordpress.com/2010/10/11/a-model-for-corporatization-of-agriculture-in-india/(Last visited on Sept.16, 2016).
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170 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
Minimum Wages Act, 1948
Employers Provident Fund and Miscellaneous Provisions Act,1952
Bonded Labour System (Abolition) Act 1976
Interstate Migrant Workmen (Regulation of Employment and
Conditions of Service) Act,1979 and
Dangerous Machine (Regulation) Act, 1983.
Policies have been formulated in various Five-Year Plans for improving
the condition of agricultural labourers, for example, by providing them
residential facilities, by stipulation for cottage industries, community
development programmes etc. During the Sixth Five-Year Plan, the
Integrated Rural Development Programme (IRDP) was launched as a
self-employment Programme. This Programme included the training of
rural youth for self-employment and the development of women and
children in rural areas. In 1989, the Jawahar RozgarYojna was merged
with ongoing programmes like National Rural Employment Programme
(NREP), Rural Landless Employment Guarantee Programme (RLEGP),
thereby, uniting all programmes. The main thrust of the Jawahar Rozgar
Yojna is to create gainful employment for the unemployed and under
employed rural labourers and marginal farmers living below the poverty
line among the state laws providing for agricultural labourers, the Kerala
Agricultural Workers Act, 1974, is considered to be most comprehensive.
Section 2(f) of the Act denes an agricultural worker as a Person, who, in
consideration of the wages payable to him by a landowner, works or does
any other agricultural operation in relation to the agricultural land of such
landowner, the agricultural worker has been given the following nature of
security under the Act. Under Section 7 (1) of the Act it has been made
mandatory for the landowner not to employ any agricultural worker other
than the agricultural worker who has worked on the same land during the
previous agricultural season, provided that where there are permanent
workers of the landowner, such worker shall be given preference over
other agricultural workers. If any agricultural worker has worked on the
land of a land owner during three consecutive agricultural seasons, prior
171
to the previous agricultural season, he not is denied employment merely
on the ground that he has not worked during the previous agricultural
season provided his absence during that season was for reasons beyond
his control. If the agricultural worker is not available or the number of
such agricultural workers available is less than the number required by
the land owner, the land owner shall be free to employ other agricultural
workers. However, the landowner shall not be under an obligation to
employ any agricultural worker:
(a) Who does not offer himself for employment; or
(b) Who is more than 65 years of age in case of male or 60 years of age
in case of female worker.
(c) Who is incapacitated and is unable to do work; and
(d) Who has intentionally caused damage to crops belonging to the
landowner or caused any other loss to the landowner.
The Act provides that the government shall form a scheme and establish a
fund known as Agricultural Workers “Provident Fund”. The fund shall be
administered by a Board. Under Section 9 of the Act the landowner shall
pay contribution to the fund at the rate of ve percent of the wages paid by
him to each agricultural worker and each worker shall also pay
contribution to the fund of an amount equal to the amount of contribution
payable by the landowner. The Act xes maximum of eight hours and six
hours of work in a day for adult and adolescent workers respectively.
Wages for the harvest have to be paid at the threshing oor on which the
threshing takes place and no portion of the produce can be removed from
the threshing oor without payment of the prescribed wages to the
agricultural worker concerned. The Act provides for a Conciliation
Ofcer for the settlement of disputes. If no settlement can be reached
between parties the Conciliation Ofcer refers the dispute to the
Collector who may in turn refer it to the Agricultural Tribunal. The Kerala
Agricultural Workers Act, 1974, confers certain benets to the
agricultural workers, gives security of employment and payment of
wages higher than those xed under the Minimum Wages Act in
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172 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
deserving cases, regulation of working hours, constitution of an
Agricultural Worker Welfare Fund and settlement of disputes on the lines
of Industrial Disputes Act.
V Conclusion
37“Food is a source of wealth but Food production is a source of misery”.
This statement of Rabindranath Tagore seems very true in today’s context
of India. One of the reasons for this misery of farmers is corporatization
of agriculture. Corporatization of agriculture is busting the countryside
of India. After analysing the effect of corporatization of agriculture, it can
be said that corporations involved in agribusiness are controlling the
agriculture activities in the country to the very great extent. They are
indirectly making use of land and farmers to making prots and on the
other side farmers are becoming poorer and poorer day by day.
Raman Magsaysay award winner and one of the world’s greatest experts
on famine and hunger as Noble laureate Amarty Sen says about him, P.
Sainath nicely says that “Nothing has now remained in the hands of
farmers including the decision on choosing the seeds, fertilizers, water,
cost of electricity, input cost and market value, whereas the power of
decision making has been left in the hands of a few big corporate houses
in India and abroad.
Corporatization is not the dangerous thing but the monopoly of
corporations is the worst thing for any democratic country. As this project
shows that every level of agriculture process from seeds to selling and
distribution of the agriculture products are becoming subject of the
control of few Multinational countries. The propaganda to protect these
corporations is also growing with the same speed as there power is
growing. Alex Carey, writer of book titled ‘Taking the Risk out of
Democracy: Corporate Propaganda versus Freedom and Liberty’ said ththat there are three historical development in the 20 century: Growth of
democracy, growth of corporations and growth of the propaganda to
protect the corporations which lame the growth of democracy. It is very
37 Nobel Laureate Rabindranath Tagore
173
true in the context of agriculture sector in India, as west already had bad
experience of corporatization of agriculture in India there is propaganda
growing that it is very good idea.
There is an urgent need review of our polices on agriculture sector.
Parliamentarian should take up this issue seriously as it directly affect the
more than 53% of the population of India. Again small farmers should be
encouraged to take food crops rather than cash crops as its makes self
sufcient to them. Again government should put money in research on
input cost cutting methods in the agriculture. Technology should be use in
cutting the input cost of agriculture especially in case of India where most
of the farmers having small holding of land. Input cost cutting Model like
IFD (Integrated farm development model) which also called as LESA
(Low External Input Sustainable Agriculture) developed by Myrada
Krishi Vigyan Kendra at Gobichettipalayam, Tamil Nadu should be
encouraged and implemented throughout the country. This model is
identied by the UNICEF as an innovative method and UNICEF also
planning for implementation of this model throughout the country.
Again adoption of new technology should be made after proper scrutiny
of the technology. Because agriculture is totally a different sector it is not
like other sector like if there is failure in the technology of motor vehicle
and if it’s leading to the more accident on the roads than it can be banned
and production can be stopped but it is not the case with the agriculture.
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174 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
*Research Scholar, Indian Law Institute, New Delhi and Assistant Professor of Law, Amity Law School, Amity University, Noida.1328 U.S. 331 (1946).
THE TREND OF MEDIA TRIAL IN INDIA: ITS CONTOURS
AND JUXTAPOSITION WITH THE NORMS OF
JOURNALISTIC ETHICS AND SELF-REGULATION
*Vaishali Arora
Abstract1FrankfurterJ in Pennekamp v. Florida said:The judiciary cannot function properly if what
the press does is reasonably calculated to disturb the judicial judgment in its duty and
capacity to act solely on the basis of what is before the court.Thomas Sowell dismisses the
conventional notion advocating that, “when your case is weak, shout louder” and instead,
announces a thought that evidently communicates the colossal power media commands in a
democratic polity in the contemporary regime. He appositely remarks, “when your case is
weak, take it to the media, instead of to the courts”. The emergence of this often-debated
phenomenon of “media-trial” in India may be conspicuously traced back to the high-prole
case of murder of model Jessica Lal, raising certain perturbed issues questioning the abuse of
power by the dominant groups and the inherent gaps within the judicial system. Thereafter,
trial by the media became a customary fashion in the country to purportedly achieve justice
through a body, characterized by self-assumption of powers in this regard, derived in the
garb of its role as the “watchdog”, permitting it to suspect the governance realm. Whilst the
momentousness of this tool cannot be disputed in awakening and unifying the apathetic
masses for a cause and consequently, affording them a platform to stage their grievances and
voice their discontent against the state’s misdemeanours; at the other end of the spectrum, its
unsolicited indulgence into the arena of administration of justice, constitutionally reserved
for the judiciary, and its ensuing impact on the stipulations of a free trial, has surfaced grim
doubts on the illusionary conceptions of journalistic ethics and self-regulation in India. In
the light of these issues, this article primarily conceptualize media trials, extracted as a
corollary of the freedom of press. It would delineate the periphery of legitimacy of such
intrusions vide constructing an analysis of the varied judgments pertaining to this theme.
Lastly, it endeavours to deliberate upon the feasibility of the abstract ideal of journalistic
ethics and yardstick of self-regulation in modulating the cynicism circumscribing such
trials.
I Introduction
The right to freedom of speech and expression is a sine qua non of a
liberalized democratic society. It is vital for unravelling and accessing the
other guarantees and is therefore positioned at the pinnacle in the
175
hierarchy of rights. Warranting the freedom to speak and express is
indispensable for the attainment of a four-fold purpose namely,
attainment of self-fullment by an individual, discovery of truth,
strengthening the decision-making capacity and facilitating a balance 2
between stability and social change. Owing to its worthiness, the right to
freedom of speech and expression is thus, accorded the nomenclature of
being “the mother of all liberties” and thereby cherished as the rst
condition of liberty.
Expression relies upon thought and ensuing opinion, conceived by virtue
of procured information. This necessitates the presence of an
information-provider, responsible for circulating information imperative
for the facilitationof public participation in the political decision-making
process. The stipulated task is accomplished by the “media”, a phrase
circumscribing every genre of communication channel through which
information can be meted out to the public at large.
Conventionally, this role was performed by the pressnevertheless with
rapid technological progression; the silhouette of the media industry has
radically expanded to embrace television, radio, motion pictures and, the
boundless world of the internet. Accordingly, the comprehensive
expression “media” may be bracketed into, the “print media,” “electronic
media” and, the relatively novel marvel of “social media”.
Media has been assigned a crucial function in any forward-looking
contemporary regime. Besides discharging its prima-facie chore of being
an information-provider, it is theparamount generator of public opinion,
vigilant guardian of people’s rights and watchdog of the state
functionaries.
As a necessary corollary of the afore-deliberations, it may be resolved
that to enjoin the right to freedom of speech and expression in its true
spirit, it becomes inevitable to read within its domainthe freedom of
media. Corroborating this stance, the Delhi High Court in Indraprastha
2S. Sivakumar, Press Law and Journalists: Watchdog to Guide-dog (Universal Law Publishing, First Edition, 2015).
The Trend of Media Trial in India: Its Contours and Juxtaposition With the Norms of Journalistic Ethics and Self-regulation
176 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
3People and Another v. Union of India, has rightly remarked that, “the
democratic credentials of a State are often measured with reference to the
degree of independence enjoyed by the media.” It is for this rationale that
media freedom has been bestowed with explicit or implicit fortication in
most global Constitutions. Accordingly, in the Indian milieu, article 19
(1) (a) of the Constitution pledging the right to freedom of speech and
expression to the citizenry, encompasses within its realm the liberty of the 4media industry.
Notwithstanding its vigour, it cannot be contested that the modern-day
media exerts gigantic powers. It possesses the potential to make and
tarnish reputations and institutions, overturn power equations and cause
revolutions. Cognisant of its competences and prominence in a polity
amalgamated with the persistent quest for unprecedented prots, the
media, especially the press and news broadcasting channels, often abuse
its powers by stooping to irresponsible journalism.
Amongst the plethora of menaces plaguing the media, “media trials”
have become an emerging trend contaminating the content broadcasted
and the resultant public opinion framed. Without a doubt, whilst a trial by
the media is palpably in public interest and if employed diligently, may be
a benison for the society, its blemishes must be intercepted. However,
prior to embarking upon the aspect of regulating such trials, it is exigent
to primarily decipher the meaning of a “media trial” and appraise its
worthiness and concomitant perils.
II Comprehending the expression “media trial”
Open public debates on issues of national signicance characterize a free
and fair democracy and are indispensable for its advancement. Such
3 thJudgement pronounced on 9 April, 2013 Available on:http://lobis.nic.in/ddir/dhc/PNJ/judgement/09-04-2013/PNJ09042013CW12002011.pdf (last visited on 1st October, 2016).4Freedom of Press has been construed as an implied fundamental right by an assortment of judicial decisions for instance, Romesh Thappar v. State of Madras, AIR 1950 SC 124; Brij Bhushan v. State of Delhi, AIR 1950 SC 129; Express Newspapers (P) Ltd. v. Union of India, AIR 1958 SC 578; Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305; Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106, amongst a plethora of others.
177
deliberations can alone be facilitated by an information-provider,
necessitating further the prevalence of a liberalized media fraternity,
engaged in disseminating truthful information. The credibility media
would command in a polity is directly proportional to the nature of
reporting it indulges in. Thus, objectivity in reporting is an obvious
expectation of the populace from the fourth estate.
The media is thus, not ethically permitted to transgress the vires of
neutrality and transparency in reporting, to make room for its own
prejudices and as a corollary, adversely mould the public opinion to
impose its own judgment in a matter yet to be investigated or sub-judice
before the judiciary. Resorting to such modus operandiin the wake of
creating unwarranted sensationalism to triumph the battle of high TRPs
and ensuing prots, thereby trespassing the domain of the Courts, in
abeyance of any cogent evidence, shall tantamount to a “trial by the
media” wherein the media acquires the stature of being a “public court”.
The Hon’ble Supreme Court of India in R.K. Anand v. Registrar, Delhi 5High Court, has endeavoured to describe a “media trial” as “The impact
of television and newspaper coverage on a person’s reputation by
creating a widespread perception of guilt regardless of any verdict in a
court of law.” It has been further remarked that, “during high publicity
court cases, the media are often accused of provoking an atmosphere of
public hysteria akin to a lynch mob which not only makes a fair trial
nearly impossible but means that, regardless of the result of the trial, in
public perception the accused is already held guilty and would not be able
to live the rest of their life without intense public scrutiny.”
Thus, the phenomenon of “media trial” entails an ostensible clash of
fundamental rights namely; the freedom guaranteed to the media under
article 19 (1) (a) competing with Article 21 of the Constitution of India,
encompassing within its realm the right to privacy, dignity and fair trial. It
also correspondingly ignores certain vital legal principles of
‘presumption of innocence until proven guilty,’ ‘guilt beyond reasonable
5(2009) 8 SCC 106.
The Trend of Media Trial in India: Its Contours and Juxtaposition With the Norms of Journalistic Ethics and Self-regulation
178 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
doubt’ and; ‘audi alteram partemor the right to be heard’.
Regardless of the afore-articulation, it is pertinent to mention herein the
constructive role of the media in initiating a public trial. Considering a
country like ours, branded by a wide array of systemic aws, there are
innite instances awaiting justice. Power here is concentrated amongst
the rich and inuential consequent to which, thevulnerable common-man
is often confronted with the blind eyes and deaf ears of the State and its
agents. This is where the media intrudes as a saviour of people’s rights. It
provides them a grievance redressal platform to raise their voice against
injusticeand henceforth restores their lost faith in the traditional state
organs.
In the Indian milieu, the idea of a media trial was instituted in its full-
edged form by the bewildering judgement of the trial court in Jessica 6
Lal murder case. A mass movement sprung triggering revolutionary
changes. Thereafter, media trials were undertaken in public interest in an
assortment of famed cases like the Priyadarshini Mattoo rape and murder 7 8 9case, Nitish Katara murder case, Ruchika Girhotra suicide case, the
Delhi Nirbhaya gang-rape case, amongst a plethora of others.These have
been classic instances demonstrating how media investigation, if done in
an apposite and bona-de manner can exceptionally contribute to serve
the interests of justice.
Nonetheless, conducting a media trial has become a vogue in India.
Whilst it is crucial for the maintenance of a system of checks and
balances, at the other end of the spectrum is the enduring blatant abuse of
6Discussed in-depth in the subsequent segment of “Media Trials in India: The Judicial Approach”.7Santosh Kumar Singh v. State Through CBI; [2010] 13 (ADDL.) S.C.R. 901Available at:
thhttp://supremecourtondia.nic.in/scr/2010_v%2013_piv.pdf (last visited on 11 October, 2016).8Vikas Yadav v. State of U.P., Available at:http://supremecourtondia.nic.in/FileServer/2016-10-03_1475495470.pdf (last
thvisited on 11 October, 2016).9S.P.S. Rathore v. C.B.I., Available at:http://supremecourtondia.nic.in/FileServer/2016-09-23_1474629326.pdf(last visited
thon 11 October, 2016).
179
this weapon by the media demanding immediate attention. Accordingly,
it becomes indispensable at this juncture to apprehend the judicial
attitude vis-à-vis qualifying such trials.
III Media trials in India: The judicial approach
Commencing this segment of the paper with the remarks of the Supreme
Court in Santosh Kumar Satishbhushan Bariyar v. State of 10
Maharashtra that, “if media trial is a possibility, sentencing by media
cannot be ruled out,” it is pertinent to examine in this light, the judicial
outlook vis-à-vis the permissible limits of trial by the media in India.
Citing primarily in this context the judgement of the Supreme Court in 11Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), pertaining
to the ‘infamous’ incidence of murder of model Jessica Lal on the th thintervening night of 29 and 30 April, 1999 at an elite party in the capital
city of Delhi, for her refusal to serve liquor to the accused, son of an
eminent Congress party leader, subsequent to the closure of the bar,
eliciting a nation-wide crusade against the undemonstrative system
gratifying the inuential.
The trial, which prima facie seemed to be an ‘open and shut case’,
astonishingly concluded with the acquittal of the accused in 2006 owing
to key witnesses turning hostile. It was then that the case gained
momentum within the media fraternity and raised immense public outcry
against the apparent miscarriage of justice. Consequent to the detested
judgment, a sting operation was conducted to unravel the truth behind
abrupt hostility of witnesses, thereby mounting pressure on the
government and judiciary to reconsider the same. The inexplicable
pronouncement witnessed the common-man of the country pitching
against the powerful and formally established the vigour of “media trial”
as a justice-seeking platform.
10Available at: http://judis.nic.in/supremecourt/imgs1.aspx?lename=34632(last thvisited on 11 October, 2016).
11Available at:thhttp://judis.nic.in/supremecourt/imgs1.aspx?lename=36237 (last visited on 11
October, 2016).
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180 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
Responding to an appeal led in the instant case before it, the apex court
whilst admiring the signicance of the print and electronic media,
advised those engaged in the eld “to ensure that trial by media does not
hamper fair investigation by the investigating agency and more
importantly does not prejudice the right of defence of the accused in any
manner whatsoever”. It further hinted towards a grave peril of prejudice
if the media is warranted unperturbed liberty. It was therefore suggested
that publishing photographs or statements of the accused or suspect,
unequivocally holding him guilty, prior to the identication parade or
order of the court, as the case may be, require regulation. The court,
however, concluded in the present case that the media reports agreeably
did perplex the mind of the public and affect the accused yet it was only in
a limited fashion since they did not have a prejudicial impact upon the
minds of the masses.
The Delhi High Court in this regard is accredited for delivering a historic
judgment germane to the aspect of conducting media trials by deploying 12
the modus operandi of sting operations. The court took a suo motu
action on the basis of a newspaper report pertaining to a sting operation
done by ‘Live India’, a private television news channel, relating to the
purported involvement of Uma Khurana, a school teacher employed with
the Delhi government, in forcing a girl student into prostitution. It was
successively suspected that the operation was deceptive however,
immense loss of public repute was until then borne by the victim. The
court thus deliberated upon the question of “how the recurrence of such
incident could be stopped and minimised so that an innocent person
cannot be victimised.”
The court in the instant case applied the ratio of the Supreme Court of the 13United States judgement in Keith Jacobson v. United States. Analysing
the same, the high court observed that, “Giving inducement to a person to
12See Court on its Own Motion v. State; 146 (2008) DLT 429.Available on:http://delhicourts.nic.in/Dec07/Court%20on%20its%20own%20motion%20Vs.%20S
thtate.pdf (last visited on 12 October, 2016).13 thReported in 503 US 540; decided on 6 April, 1992.
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commit an offence, which he is otherwise not likely and inclined to
commit, so as to make the same part of the sting operation is deplorable
and must be deprecated by all concerned including the media.” In such
circumstances, the individual involved may also assert guilt of the person
offering such inducement and consequently, impute him as a party to the
crime the former is accused of.
It nevertheless claried its stance by articulating that sting operations
may sometimes be indispensable in public interest and as a tool for justice
if they demonstrate acts and facts as they have truly and in reality
happened but, “a hidden camera cannot be allowed to depict something
which is not true, correct and is not happening but has happened because
of inducement by entrapping a person.” Therefore, in the opinion of the
high court, per se the media is well within its right domain when it seeks
to resort to tools of investigative journalism to bring the citizenry “face-
to-face with the ugly underbelly of the society” nonetheless, it cannot
transgress its authority to encroach upon the rights of privacy and dignity
possessed by an individual.
In the nality, certain suggestions were proposed by the Court to mitigate
the menace of stings. First and foremost, it submitted that a self-
regulatory code of conduct should be drafted by the responsible and
senior television journalists and editors, having key involvement in the
production and airing of programmes through the channel of electronic
media. It stated in this regard that, “we believe and trust that all TV
channels/media shall take steps and prohibit its reporters from producing
or airing any programme which is based on entrapment and which are
fabricated, intrusive and sensitive.” Additionally, it was recommended
that the Press Council of India may take the requisite initiative in this
arena. Furthermore, the court insisted that the Ministry of Information
and Broadcasting must craft suitable guidelines regulating the airing of
sting operations by the news broadcasting media.
Dealing with the legitimacy of sting operations in the country and
addressing the issue of nature and extent of the right of the media to deal
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with a pending trial, the Supreme Court in R.K. Anand v. Registrar, Delhi 14High Court opined that, “it would be a sad day for the court to employ
the media for setting its own house in order; and media too would
certainly not relish the role of being the snoopers for the court.” The
Court further elucidated that coercing the media to procure the consent
and permission of the court prior to publishing or broadcasting a report 15concerning a pending trial, would be a contravention of the right to
freedom bestowed upon the media by article 19 (1) (a) and thus
tantamount to pre-censorship of reporting court proceedings, a
phenomenon forbidden by the stated constitutional provision.
However, in furtherance of this observation, it was declared that the
afore-nding of the court does not imply that the media is permitted to
publish any kind of report or conduct a sting pertaining to a sub-judice
matter in any manner it desires. Moreover, the legal bounds within which
a report or comment on a sub-judice matter can be made is well dened
and an act infringing these parameters would invite consequences. Also,
the court contrasted normal reporting by the media with the scheme of
sting operations and resolved that the latter are “incalculably more risky
and dangerous” owing to their inherent attribute of being essentially
deceptive and therefore, it was concluded that any fallacy therein would
invite “legal restrictions with far greater stringency and more severe
punishment”.
Besides, it was enunciated that every sting operation cannot be classied
as a ‘trial by the media’. To elaborate, if there is nothing in the programme
14Supra note 6; the case was incidental to the ongoing criminal trial in the infamous BMW hit-and-run accident involving Sanjeev Nanda. It evoked considerable media attention and public interest owing to the involvement of an illustrious family coupled with the fallout of the prosecution witnesses. In this backdrop, NDTV, a popular television news channel, conducted a sting operation bringing to light the negotiations between the Special Public Prosecutor IU Khan and RK Anand, the senior defense counsel, for the sell out of the prime witness in favour of the defense, in lieu of a high price. The apex court was thus confronted with the task of ascertaining the role of NDTV in carrying out the sting operation and telecasting the programme based on the sting materials in regard to a criminal trial that was going on before the court.15One of the recommendations forwarded by the amicus curie in the preceding case of Court on its Own Motion v. State, explicitly refuted by the apex Court in the instant case.
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indicative of the guilt or innocence of the accused and it simplicitor is a
reection of the systemic aws, a sting cannot be bracketed as a media
trial. Accordingly, in the instant case, the sting programme telecasted by
NDTV was not graded as a media trial on the premise that barring few
stray remarks and comments by the anchors or the interviewees, the
content of the programme merely exhibited some unscrupulous people
trying to undermine the BMW trial whilst portraying the worrisome state
of the criminal administration of justice in the country.
Concerning the crucial question if such stings can be accused of being in
contempt of the Court by interfering or tending to interfere with, or
obstructing or tending to obstruct the due course of a fair trial, the apex
court settled that, “stings and telecast of sting programmes served
important public cause” thus, until “what was shown was proved to be
substantially true and accurate” and the operation “is in larger public
interest”.
At this juncture arises the crucial question whether the judiciary is
empowered to pass a prior restraint order impeding a publication or
broadcast of a news story, as a probable remedy to ameliorate the
fallibilities of a trial by the media. The foremost judgement probing this
aspect was delivered by the apex Court in Reliance Petrochemicals 16Limited v. Proprietors of Indian Express. The court asserted that the
freedom of press is not absolute but qualied by the reasonable
restrictions enlisted under article 19 (2). It cannot be claimed divorcing
other constitutionally guaranteed rights and accordingly, must be
harmonizedwith the rudiments of a fair trial. Taking cues from the
doctrine of “clear and present danger” propounded by Holmes J in this
regard, the court resolved that it has inherent powers to issue interim
16AIR 1989 SC 190; The petitioner, Reliance Petrochemicals Limited had offered for public subscription secured convertible debentures, after duly procuring the sanction of the Controller of Capital Issues, as lawfully mandated. The public issue was however, challenged in few High Courts. In the meanwhile, an article denouncing the issue as an unreliable venture appeared in the Indian Express provoking the instant case. Henceforth,the petitioners launched contempt proceedings against the respondents for allegedly interfering with the administration of justice by publishing an article commenting on a sub-judice matter, thereby prejudicially impacting its adjudication.
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orders restraining a publication if in its observation; there exists a “real
and imminent danger” that the continuance of the publication would
result in interference with the administration of justice.The test
formulated thus advocatedthat any preventive injunction against the
press must be “based on reasonable grounds for keeping the 17administration of justice unimpaired”.
Similarly, dealing with the facet of the court’s inherent power to conduct
in-camera proceedings and prohibit publication thereof or evidence
recorded therein by the media, the apex Court in Naresh Shridhar 18Mirajkar v. State of Maharashtra claried that “open justice” is though
indisputablythe cornerstone of our judicial system and instils faith in the
legal system, it is not absolute and subject toimposition of restrictions by
the court in its inherent jurisdiction if administration of justice so
demands.
Addressing the same issue lately in Sahara India Real Estate 19Corporation Limited v. Securities and Exchange Board of India, the
Supreme Court postulatedthe “doctrine of Postponement of
Publications” and enunciated certain cardinal principles governing the
passing of a prior restraint order against a publication, permissible in
some exceptional cases. The court settled thus:
Anyone, whether an accused or an aggrieved person, who genuinely
apprehends on the basis of the content of the publication and its effect, an
infringement of his/ her rights under Article 21 to a fair trial and all that it
17It is noteworthy here to apprehend the status quoin America with regard to restraint orders on publications. Ordinarily, in the United States, any encroachment with the liberty of the media to access, report and comment upon ongoing trials is per se unlawful. Accordingly, prior restraint orders are completely prohibited. Therefore, in circumstances wherein, a reckless piece of journalism begets prejudice to the proceedings, there exist no sanctions against the party responsible for the wrong-doing owing to the inuence of the First Amendment absolutely shielding the press. Nevertheless, the American Courts have evolved procedural safeguards known as “neutralizing devices”, aimed at counterbalancing the effect of prejudicial publicity for instance, change of venue, ordering re-trial, reversal of conviction on appeal. Besides, certain sparse exceptions have been recognized.18AIR 1967 SC 1.19(2012) 10 SCC 603.
185
comprehends, would be entitled to approach an appropriate writ court
and seek an order of postponement of the offending publication/
broadcast or postponement of reporting of certain phases of the trial
(including identity of the victim or the witness or the complainant).
In such circumstance, in an endeavour to balance the right to a free and
fair trial along with the media freedom enshrined under article 19 (1) (a),
the court may exercise its discretion to grant such preventive relief, as is
vital for the proper administration of justice. However, whilst providing
such remedy, the court must be mindful of the principles of necessity and
proportionality, further bearing in mind that an order of postponement
should be for short duration and employed alonein cases involving real
and substantial risk of prejudice to the fairness of trial. A neutralizing
device (or balancing test) of such nature would not tantamount to be an
unreasonable restriction and fall within the constitutional framework.
Yet another noteworthy pronouncement in this arena has been delivered
by the Delhi High Court vide an order in Swatanter Kumar v. The Indian 20Express Limited wherein the plaintiff, a retired Supreme Court Judge,
accused of sexual misconduct against an intern was allegedly defamed by
certain unveried and inauthentic media reports adversely instituting his
guilt despite a pending enquiry into the allegation. Relying upon the
pronouncement of the Supreme Court in Sahara India, the high court
agreed that prima facie, the content disseminated by the print and
electronic media in the instant case created a trial by media kind of
situation generating sensation amongst the masses by accentuating upon
mere allegations. Thus, there arises a need to postpone the same or similar
nature of publications. Such order by the Court may include the directive
of non-disclosure of identity of the victim or witness of complaint.
It may thus be inferred from the above assessed judicial outlook that the
judiciary in India “in toto” endorses a favourable attitude towards the
media freedom. It has strived to harmonize media freedom with the
20Available at:http://lobis.nic.in/ddir/dhc/MAN/judgement/16-01-2014/MAN16012014S1022014.pdf (last visited on 12th October, 2016).
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186 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
specications of a fair trial and justice administration. Though the higher
judiciary is acclaimed for issuing worthy directions on a case to case
basis, there continues to existgaps due to a dearth of comprehensive
guidelines or code of conduct regulating media trials.
th 21IV The 200 Law Commission report: Free speech v. fair trial
The most rhetoric research on the pragmatic and detrimental facets of
media trials in the country has been undertaken by the Law Commission th
of India and presented in its 200 report titled “Trial by Media: Free
Speech vs. Fair Trial under Criminal Procedure (Amendments to the
Contempt of Court Act, 1971)”. Published in August 2006, the report
recommended varied breakthroughs, including modication of certain
provisions of the Contempt of Court Act, 1971, to efcaciously address
the noxious effect of sensationalized news reports instigating a media
trial, culminating in victimization of the suspect or accusedby circulation
of defamatory content against him and, administration of justice.
The Commission in chapter IX of the said report has enumerated certain
kinds of publicationsin the media which could be prejudicial to a suspect
or accused and thwart the due course of administration of justice. The
same have been urged to be forbidden. These may be summarized herein-
below to include:
i. Publications concerning the character of accused.
ii. Publication of confessions made by the accused. It would not entitle
the accused justice since regardless of the Court’s decision, he is a
deemed convict in the assessment of the society.
iii. Publications which comment or reect upon the merits of the case.
iv. Photographs of the accused where identity is likely to be an issue.
This may obstruct the procedure of identication of the accused.
v. Premature publication of evidence, including interviews with
witnesses.
21Available at: http://lawcommissionondia.nic.in/reports/rep200.pdf (last visited on 14th October, 2016).
187
vi. Publications of past criminal records. It shall publicize the belief
that it is more likely for the person so accused to have committed the
crime charged for if he has a criminal history.
vii. Comments which engender sympathy or antipathy for the accused.
viii. Publications criticizing witnesses, revealing or questioning police
activities or creating an atmosphere of prejudice in any manner
whatsoever.
The same chapter embodies certain key recommendations proposed by
the Commission concerning this aspect. Primarily, it has stressed upon
prohibition of any publication which is prejudicial to the accused, a
limitation that shall become operational from the time of arrest in
contradistinction with the ling of the chargesheet by the police.
Additionally, it had articulated that the high courts must be authorized to
direct postponement of publication or broadcast pertaining to a criminal
matter. Furthermore, it has propagated the training of journalists in
certain relevant areas of law and legal requirements/ethics, explicitly the
arena of article 19 (1) (a) and 19 (2). Likewise, it was suggested that the
study of the Constitution of India, human rights, defamation and
contempt laws, amongst others, must be inserted in the curriculum of
journalism course and alongside, special diploma or degree courses on
journalism and law may be crafted.
V Conclusion
Notwithstanding the inevitability and worthiness of investigative
journalism in bringing to light the systemic lapses by providing a suitable
platform to the citizenry to make their voices heard against the wrong-
doings of the powerful, overall making justice relatively accessible, the
overreach of the media in initiating a trial, in absolute ignorance of the
legally prescribed procedure for the same, thereby prejudicing the public
opinion and vitiating the judicial proceedings, cannot be denied.
Whilst a peaceful protest, candle-lit procession, spirited public debates,
and the like; intending towards initiating a “renaissance” in the prevalent
regime, may legitimately be resorted to in a democracy, media tactics
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188 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE
piloted towardscreating needless sensationalism, encroaching upon the
privacy rights of others, prejudicing a fair trial, circulating distorted and
defamatory content, is liable to be condemned. Such malpractices are
violative of the norms and canons of responsible journalism and demand
regulation.
It is pertinent to articulate herein that regulation must not be muddledwith
censorship since the latter would nullify the quintessence of the fourth
estate. Also, regulating the fraternity by virtue of a statute would
tantamount to conferring mammoth power upon the legislature to
manage the media in accordance with its own whims and fancies, a
predicament treacherous for the survival of a democratic polity. It is
hence suggested that the diverse complexities involved must be
harmonized in a fashion so as to savour the merits of investigative
journalism and mitigate its perils. The recommended key thus, is the
exercise of self-regulation by the media.
Primarily, the media must restrain itself to fair, transparent and neutral
reporting. Any adverse information disseminated having the tendency to
injure the reputation of a fellow citizen or likely to have a detrimental
effect on the fair administration of justice, should solicit judicial
intervention. Reiterating the observation of the apex court and varied
high courts in this regard, “the media even under the law is not entitled to
distort the facts for the purpose of juicy news. If they do it, they are held
responsible to suffer damages.” Henceforth, there is a dire need to x the
accountability of the journalist along with the media house, found
engaged indulging into such frivolous acts fallaciously infuriating the
masses. Alongside, every such trial must be backed by compelling
evidence.
Notwithstanding the same, the judiciary is correspondingly expected to
employ self-restraint and abstain from overstretching its inherent powers
to postpone publication or order prior-restraint. Such authority may alone
be exercised in grave circumstances without compromising upon the
liberty accorded to the media. This diligence has to be exerted by the
Judge on a case to case basis.
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Lastly, the Law Commission of India has proposed valuable
recommendations in this regard which remain yet to be implemented and
must be considered by the regulatory and judicial authorities to frame a
comprehensive code of conduct governing media trials.
To conclude, construed in isolation, self-regulation becomes a myth and
journalistic ethics, an abstract ideal. These must be substantiated with
proper and vivid guidelines duly xing accountability and liability of the
wrong-doer. The idea is not to impose a bracket ban on a trial by the media
undermining its utility or seizing the public’s right to know but to evade
excessive publicity, respecting the rights of the suspect or accused vis-à-
vis his privacy, dignity and fair trial.The conception of akin culture can
alone abbreviate dependence on laws to regulate trials by the media.
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LEXIGENTIA
PEER REVIEWERS BOARD
Mr. Anup Kumar Varshney, Joint Secretary, Legislative Department,
Ministry of Law & Justice
Prof. S. S. Jaswal, Registrar , National Law University , Shimla , HP
Dr. P. Puneeth, Associate Professor, Law and Governance,
JNU, New Delhi
Dr. Jyoti Dogra Sood, Associate Prof., Indian Law Institute,
New Delhi
Dr. Asad Malik, Jamia Millia Islamia, New Delhi
Ms. Anju Jain , Advocate , Delhi High Court
Mr. Robin Jacob, Advocate, Supreme Court of India
Mr Ravi Prakash, Advocate, Supreme Court of India