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The Proposed Accessibility Exception to Copyright

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Update (April 26, 2010):

Please note that although this does not affect the critique below, the relevant Section No. is 52(1)(zb) in the Copyright Amendment Bill, 2010, and not 52(1)(za) as mentioned herein — Section 52(1)(za) was based on documents which had reportedly been leaked and made available.

Section 52(1)(zb) reads as follows:

The adaptation, reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such works in their normal format.

Also read Disability and the Indian Copyright Amendment Bill, 2010 (SSRN link).

This paper is updated till May 6, 2010, and deals with both the proposed accessibility exception to copyright, and the compulsory licence which has been proposed for the benefit of disabled persons.

The Proposed Accessibility Exception to Copyright

By Nandita Saikia and Bihu Sharma

(This is a Working Paper and is based on the proposed Copyright Amendment.)

 

Introduction

The disabled in India are, for the most part, an invisible minority with disability, and often the disabled themselves, being stigmatised. In a country where access to information and education is limited by a variety of factors, including class and caste, persons who have disabilities tend to be far more disadvantaged than the average person of their own caste and class would be.

Disability is generally considered to be an individual and isolated problem and without a support structure, comprising family or other persons, that has adequate resources, having a disability in India is almost certain to limit one’s ability to be a productive member of society.

One of the ways in which disabled persons are prevented from realising their potential is by their access to printed material such as books being virtually non-existent should they suffer from a disability which hampers their ability to access printed material.

Image from WikiCommons

Image from WikiCommons

The Scale of the Issue

A large fraction of printed materials are protected by copyright law which grants the owners of copyright certain exclusive rights with respect to such materials.

In the developed world, estimates indicate that only 5 per cent of published books are converted into formats which are accessible to people with visual impairments. In India, the situation appears to be much worse. It has been estimated that only about 0.5 per cent of all published books in India are converted into accessible formats, and that less than 1 per cent of visually impaired persons have adequate access to printed matter. These statistics only take into account persons who are visually impaired.

Additionally, besides those who cannot access printed material due to reasons not related to disability such as illiteracy or financial constraints, there are millions of people in India whose access to printed material is limited because of other disabilities ranging from dyslexia to an inability to manipulate the pages of a printed book.

Exhaustion of Rights

The doctrine of Exhaustion of Rights states that once a copy of a copyrighted work has been legally sold, the copyright owner exhausts his rights in that copy of the work and can be resold without reference to or consent from the owner. This means that once a copy of a copyrighted work had been made available anywhere in the world in an accessible format, that copy would not be considered to be an infringing copy of the work in India.

Thus, although explicitly following the principle of international exhaustion could adversely impact such things as the availability of low priced editions in India, since publishers would have little incentive to make such editions available in the Indian market without the assurance that the copy would not be ‘leaked’ to countries, following a principle of international exhaustion may actually benefit disabled persons since the cross-border movement of copyrighted works in accessible formats would be legal.

The Proposed Amendment to the Copyright Act, 1957

Indian Copyright law does have ‘exceptions to copyright’ incorporated in it. These exceptions could be in the form of ‘Fair Use’ or ‘Fair Dealing’ provisions, and, if one were to extend the definition of ‘exceptions to copyright’, it would also probably be possible to include within the scope of the definition statutory and compulsory copyright licences.

The Indian Copyright Act, 1957, as it stands today, however, does not contain provisions which deal with making copyrighted works accessible to disabled persons. Traditionally, exceptions to copyright have been defined in terms of very narrow circumstances in which a copyrighted work may be exploited by a person other than its owner without the consent of the owner.

The need to incorporate provisions which enable disabled persons to access to copyrighted works has, however, been recognised in recent years, and it has been proposed to amend the Copyright Act, 1957, to include within the statute a separate compulsory licensing provision to allow for the publication of copyrighted works in formats for the benefit of the physically challenged.

In addition to this, it has been proposed to incorporate an additional ‘exception to copyright’ in the statute which would allow a copyrighted work to be reproduced and distributed in a format accessible to disabled persons. The proposed amendment reads as follows:

Section 52(1)(za): The reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such works in their normal format.

Although the proposed insertion of such a Section is, in itself, a step forward, it would appear that the provision does not serve the needs of either copyright owners or disabled persons as best it could. For example, it is entirely silent with reference to technological protection measures, and does not say that such a measure may be circumvented in order to convert a copyrighted work into an accessible format. While it would be possible to argue that the law intended to allow for technological protection measures to be circumvented under the accessibility exception, one would probably have to use rather circuitous logic to do so.

In addition to this, there are a number of other provisions in the accessibility exception which give rise to concern. The aim of an accessibility exception to copyright would presumably be to ensure that disabled persons are able to enjoy copyrighted works to the same extent as abled persons. It is, however, debatable whether the proposed amendment to the Copyright Act, 1957, is successful in doing so.

The Protection of Copyright Owners

Under the proposed amendment, the reproduction, issue of copies or communication to the public of a copyrighted work would be legal if it were in a format specially designed only for the use of persons with a disability regardless of whether or not the copyright holder had already made the work available in that format. Further, given that the format into which a work could be converted to ensure accessibility has not been qualified in any way, the original format could be modified to an extent beyond that which would be required to provide accessibility to disabled persons.

Thus, the extent to which modification has been allowed under the proposed amendment is not qualified. Ideally, for the protection of rights holders, the exception should have only applied to works which had not been made available by rights holders themselves in the necessary accessible formats (at a reasonable price and without undue effort having to be expended in order to obtain the works in question in such formats).

Further, there is also no provision in the accessibility exception which states that it would apply only to non-commercial endeavours to make copies of works in accessible formats available to disabled persons. It is conceivable that such a requirement would, in a country like India, simply restrict the applicability of the exception to an appreciable extent. Further, if the proposed amendment were to be modified along the lines mentioned in the previous paragraph, it would completely obviate the ‘need’ for a provision regarding non-commercial use since the rights of copyright owners would be adequately protected.

The Requirements of Disabled Persons

The proposed amendment requires the accessible format to have been specially designed only for the use of persons suffering from a disability (such as Braille). This would immediately exclude formats which have not been “specially designed” only for disabled persons from falling within the scope of the accessibility exception. Since many of the formats which disabled persons would benefit from are not formats which have been specially designed for them (whether they be large-print photocopies for visually-impaired persons or photocopies on coloured paper for dyslexic persons), this requirement would, in a way, defeat the aim of attempting to ensure that disabled persons are in fact able to access copyrighted works.

Moreover, according to the proposed amendment, the format to provide accessibility must have been specially designed not merely for the benefit of persons with disabilities but for their use. This means that a format which may be utilised for instructional or educational purposes, for the benefit of disabled persons, without being designed specifically for the use of disabled persons, could be seen to be excluded from the scope of the accessibility exception.

Similarly, the requirement that a disabled person be prevented from being able to enjoy the work in its original format also significantly narrows down the scope of the proposed amendment since it means that certain ‘activities’ would not fall under the scope of the disability exception. If a disabled person were to enjoy a copyrightable work to any extent at all, the provisions of this exception would not apply, since the person would not be considered to have been unable to enjoy the work, or to have been prevented from doing so on account of their disability. The corollary to this is that a format of work which would merely enhance a disabled person’s ability to access and enjoy a work (such as a large print photocopy) may not fall under the scope of this exception since the disabled person may not have been prevented from enjoying the work in its original format.

With reference to accessible formats themselves, the insertion of sign language as an example of an accessible format gives rise to some concerns in itself. It would probably have been worth specifying that an accessible format contemplated by the provision could be any format whether or not it was substantially the same as the original format of the work. Such an amendment would be welcome since it is entirely conceivable that, in future, it could be argued that the law never intended for ‘minor’ changes in formats such the making of photocopies to be included within the scope of the exception considering that the one format mentioned would, in most cases, be a ‘substantial’ change, and that it betrays the legislative intent to only include ‘substantial changes’ of format within the scope of the exception.

Conclusion

While the drafting of this proposed amendment in the Indian Copyright Act, 1957, to enhance accessibility to copyrighted works at all is certainly a step in the right direction, the text of the exception is fraught with ‘loopholes’, and its language could well be considered to be a reflection of the way in which the Indian society views disabled persons.

According to the proposed amendment, disabled persons do not simply have disabilities, they are ‘persons suffering’ from disabilities, and formats in which copyrighted works are made available for abled persons (who comprise the majority of the population) are not merely the original formats but the ‘normal’ formats of those works.

India probably has a long way to go before it sees disability as nothing more than a difference instead of as an abnormality. However, in the context of an exception to copyright for the benefit of disabled persons, even as it stands, the proposed amendment would probably significantly enhance the ability of disabled persons to access copyrighted works.

(Bihu Sharma can be reached at bihusharma[at]gmail[dot]com, and Nandita Saikia can be reached at saikianandita[at]gmail[dot]com.)

Image Source: WikiCommons

Sustainable Peace

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By Sidhartha Jatar


The UN has played a significant role since 1948 in peacekeeping operations throughout the world. With over 16 missions underway and a total of 63 missions under its belt, the UN Peacekeeping machinery is well-oiled and sufficiently experienced to provide protection to governments and civilians struck by internal strife and external threats. Recent figures put the number of military and civilian personnel deployed at over 93,000.

Peacekeeping has come a long way since its early origins and has grown conceptually to include performance of both military and non-military functions during the course of peace support operations.  While peacekeeping forces have had successes in terms of mediating and implementing peace agreements, their inability to sustain lasting peace has been a cause for concern and criticism. In the 1990’s the UN’s failure to prevent violent episodes in Angola and Rwanda and its inability to avoid ‘relapses’ in other post-conflict zones affected its image as an effective and credible force and necessitated self-reflection and internal change. The nature of peacekeeping underwent a transformation, as did the mandate of peacekeeping forces. The world recognised peacekeeping to be a dynamic concept requiring continuous expansion and evolution with time. Simultaneously, there was also a realisation that peacekeeping was only an enabler of peace and security and not a final solution to violence and conflict. For durable peace, transformation of social, economic and political institutions would be required and root causes of conflict – which could range from cultural and ethnic hatred to a race for valuable resources – would have to be addressed.

Thus evolved the idea and need for peacebuilding which is an attempt at setting long-term goals, bolstering political and financial commitments to agenda’s having long gestation periods and contributing to the development of a civil society where human rights, dignity of life and basic needs are attainable. Peacebuilding is founded upon a realisation that there needs to be a cohesive effort by all interested parties to develop economic and social structures and remove hatred and fear from the minds of those affected by violence. The process also commits itself to the establishment of the rule of law since without a fair, impartial and effective mechanism of justice, society would retain the scars of the past and be rendered helpless and vulnerable to newer injustices.

With the Peacebuilding Commission having been set up in 2006 by the UN, the task of planning and strategising policies, resource gathering and resource allocation, building regional cooperation, reviewing progress and recovery goals and importantly extending the period of political attention and political commitment in conflict-recovery zones will receive focused attention. The commission will also look into sufficient and sustained funding and inclusion of best practices.

What may be derived from the above is a need for maintaining a continuum between peacekeeping and peacebuilding during the long process of attaining human security. Human security is pivotal to both long-term and short-term strategies of a peace operation. The UNDP report defines human security as “safety from chronic threats and protection from sudden hurtful disruptions in the patterns of daily life,” and identifies seven categories of threats: poverty, hunger, disease, pollution and environmental degradation, violence, cultural and political repression. The challenge lies in the creation of a mandate for peacekeeping and peacebuilding that will incorporate these factors into the respective mission strategies despite the differences that exist in their timeframes and primary functions. 

In order to achieve these tasks, a sustained effort to peacefully manage the interests of different groups, focus on cooperation and dialogue, systematise justice delivery mechanisms, initiate reconstruction programmes, bring constitutional reforms and address structural causes of conflict is required. Priority will have to be given to sound micro and macro economic policies, re-establishment of commercial ties and trade links and provision of adequate employment opportunities. The role of civil society in reconciliation, fostering of forgiveness and inner healing cannot be underemphasised either.

It is only with clear and coherent mandates, sound transition strategies and a multi-pronged approach that the twin efforts of peacekeeping and peacebuilding will result in creation of durable and sustainable peace.

Effect of Armed Rebellion on Children: Innocence Scarred

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By Sidhartha Jatar
 
Introduction

There is a stark contrast between the two worlds that exist today: one world offers comfort and hope to children in an environment where their social and developmental needs can be attended to while the other deprives communities and societies of the stability required to meet these welfare needs. Children are the future of every generation and are like saplings that require sufficient nutrition, sunlight, shelter and space to grow healthy and stay rooted. Families provide their first line of defence, giving them emotional strength and inculcating in them a basic sense of trust and bonding. Communities offer platforms for wider interaction, enabling children to develop a sense of belongingness and responsibility. Thus, it is in a salubrious climate conducive to peaceful development that children find opportunities for wholesome growth.

Armed rebellions rob a child of these essential ingredients. They upset the daily routines of life, destroy the social fabric of a community and leave behind a milieu that is unfavourable to value-based cultural and social development – the effects of this being noticeable at several levels: 1) Personal – biological and psychological 2) Family and relations 3) Social networks, schools and neighbourhoods 4) Norms and value-systems.

The deprivations of war and armed conflict result in poverty, disease, hunger, lack of clothing and poor sanitation with maximum brunt being borne by children. Children become active participants in heinous crimes as well as direct victims of violence. Through thematic references one can attempt to gauge the extent and nature of the effects of armed conflict on them.

Selective themes

 Child soldiers

 Armed rebels and militia forcibly recruit children to fulfil their manpower shortages for both military and non-military activities. While some child soldiers are trained to kill, others are used for support functions such as cooking and spying. Child recruitment by rebels and militia is a favourable option since these children don’t require pay and can be manipulated easily. There are some deeply disturbing stories, for example, of RUF soldiers in Sierra Leone forcing children to take part in slaughter campaigns against their own families and communities in order to sever ties. The RUF is also said to have also engaged in extreme brutalities such as cutting limbs of children to prevent government forces from using them to source diamonds. The LTTE in Sri Lankan is an example of a regularised military force which inducts children into its armed forces and provides them with weapons training.

 Land mines

These are one of the worst forms of weaponry with severe long-term effects. As sitting time bombs, they pose a significant threat to children who are curious and are unable to read or understand danger signs. While mines cost a pittance to make and take little time to embed, removing minefields is a costly and time-consuming proposition. Additionally, the danger posed by landmines continues well after their intended purpose has been served. Scarcity of medical aid and resources means that few child amputees have access to prosthetics. Many more are left unattended to and succumb to their injuries.

Small-arms trade

The small-arms trade has significantly increased the ability of children to participate in acts of violence. Small arms are found in plenty in conflict zones where weapons are unaccounted for and arms dealers are operative. Children can be taught to use these weapons and reload/reassemble them. Being easy to carry and handle, they form the perfect weapon in a child’s armoury.

Sexual violence

Girls are raped and forced into prostitution apart from being used as soldiers. It is said that they serve a double purpose of performing the function of a soldier by day and offering their services for enervated combatants by night. The mental trauma and debilitating physical effects on such children are but one of the many other problems they have to face. Social stigma, early motherhood, threat of HIV/AIDS all add up to cost the girl child her adolescence.

Children as witnesses/targets

As witnesses to horrific crimes, the psychological impact on children can be destabilising to their personalities and character. The brutality and violence to which they are exposed has resulted in them being termed as “lost generations”. Where communities are sought to be wiped-out through genocide and ethnic cleansing, children become primary targets.

International Law and special protection for children during armed conflict

Since the 19th century, nations have attempted to use International Law to circumscribe the effects of armed conflicts on civilians including children. Prior to WW2, the laws of war (culminating in the Hague Convention) were the only rules that advocated maintenance of law and order during conflict and immunity of civilians including children. The devastating effects of WW2 on the civilian population, however, would provide impetus for a new legal order that expressed the resolute stand of nations to ‘humanise’ war and protect innocent persons. The Geneva Convention of 1949 and its Two Additional Protocolsthus became pillars of what has come to be called ‘International Humanitarian Law’. The Fourth Geneva Convention in particular refers to special protection of children, their need for family support and their right to adequate care, maintenance and education while Protocol I prohibits recruitment of children below the age of 15 for military purposes. In 1989, a significant step was taken through the creation of the Convention on the Rights of the Child (CRC), a legal instrument that specifies rights of children. The Convention embodies a few basic principles:

o Best interests of the child shall be of primary consideration

o No discrimination on grounds colour, sex, religion etc

o Childs inherent right to life

o Child’s right to freedom of expression

The Optional protocol to the CRC on Armed conflict then recognised the rights of all persons below 18 years of age to special protection and non-recruitment for use in hostilities by armed forces and non-State actors.

The international legal framework has also been bolstered by the Rome Statute of the International Criminal Court that recognises child recruitment as a war crime and a crime against humanity and seeks to ensure that egregious violations of human rights don’t go unpunished. The arrest and trial of Thomas Lubanga (leader of the rebel forces in Congo) is a decisive step towards strengthening the international enforcement machinery and deterring future perpetrators who might think that they can go on unwatched and unpunished. Political commitments made via the Paris Principles towards disarmament, demobilisation and reintegration of children associated with armed conflict have confirmed the resolve of several conflict-ridden nations and their governments towards protection of children’s rights.
 
In spite of these prolonged efforts at the international level, ground realities show a deteriorating condition for children in conflict-affected areas. Just over the last decade, some 6 million children have been wounded in armed conflict. Current estimates peg the number of child-soldiers at 300,000. Where has the international community failed and what is the way forward?

“Era of application” and strategies for execution

If the world community is going to witness any further success in its endeavours, the 21’st Century will have to be an era of implementation. This is easier said than done considering that the nature of conflict has changed i.e. battles are increasingly being fought intra-state by non-state actors including disbanded militia and rebel forces. Additionally, terrorism has literally brought war into ‘one’s own backyard’ requiring the use of precision strikes and aerial bombings that cause collateral damage.
Application of international law to such non-state actors and its enforcement remains a challenge.

Some other strategies that might help reduce the negative impact of armed rebellions on children:

  • Removal of small arms stockpiles
  • Cutting shipment lines for illegal trade in arms
  •  Ending political/financial/military support to groups that conscript children
  • Certification systems e.g. the Kimberly certification scheme which imposes strict standards before which a diamond can be termed as conflict-free
  •  Improved monitoring and reporting (as has been envisaged by the Security Council’s Working Group): This will help in gathering data, creating records, supporting future prosecutions of offenders etc
  •  Increasing awareness amongst families and communities regarding human rights and international norms
  • Convincing non-state actors to demobilise child soldiers
  • Renewal of support to anti-mine groups

Reintegration and Peacebuilding

Reintegration of children in society is an essential function of peacebuilding and the UN sends child protection officers along with peacekeeping forces to provide, amongst other things, training to its soldiers.  The task of reintegration is complex given the heterogeneity of experiences children face during armed rebellions.

How does one ensure that children aren’t painted with the same brush (especially through institutionalised mechanisms)?

Does the international community have an overly simplified understanding of the mental state and condition of children in conflict-zones? Perhaps there is a greater need for reintegration to be ‘age appropriate’, ‘gender focused’ and ‘community based’? A girl who has been a child soldier, rape victim and a child mother might need counselling on different fronts for her ‘double trauma’. A child soldier turned major will need a different approach to reintegration that someone of lesser age. There could be children who don’t require counselling at all and show signs of “spontaneous reintegration” whereas others might need spiritual healing for their sense of alienation, guilt and anger.

Just as the approach towards reintegration can be varied, the healing process itself could involve both institutional and non-institutional mechanisms. Through combined efforts involving political will, community structures and youth led initiatives children of war and conflict can hope to attain emancipation from its scourges.

Legally wise: December 2008

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Compiled by Sidhartha Jatar

National Investigation Agency and new Anti-terror law

President Pratibha Patil has signed two bills signaling the creation of a National Investigation Agency on the lines of the FBI and the enactment of an anti-terror law which will boost police powers. (VOA)

To enable the Federal Agency to function effectively and without state interference, the bill skirts the fact that ‘law and order’ is a state subject by terming terror strikes as an attack on India’s sovereignty and thereby lends a constitutional cover to the agency’s sweeping powers. Special courts are sought to be designated to try terrorists. (ToI)

The anti-terror bill seeks to balance security needs with individual freedoms and fundamental human rights. (BBC)

Media self-regulation

With a Parliamentary Committee favouring statutory regulations for the media on the lines of the Press Council of India and with the Information and Broadcasting ministry threatening government oversight (control over content), broadcasters have unveiled self-regulatory guidelines thereby quickening the process that was started by the News Broadcasters Association much before the Mumbai attacks. (TOI)

Live-in-relationships and the Domestic Violence Act

Commenting on the need for a specific law for protecting women involved in live-in relationships, law minister H.R Bhardwaj said that the Domestic Violence Act was adequate and that an expansion could be considered when society was prepared to accept this kind of relationship. (DNA)

Hindi – an unfeasible alternative

Citing practical difficulties, the Law Commission has struck out a suggestion made by Parliaments official language panel that article 348 of the Constitution be amended so as to allow judgements to be delivered in Hindi. (The Telegraph)

Income of dependant has no bearing on compensation amount in cases involving accidents

The Delhi High Court has disapproved of a ruling of the Motor Accident Claim Tribunal which adjusted earnings of the dependant (of an accident victim) against compensation she was entitled to. The high court stated that the income of a family member must not have any bearing on compensation payable. (DNA)

Women: Safe for no more than three minutes

In a shocking report, women in India –it is said- are a victim of criminal acts every three-minutes. In many cases, the perpetrators are known to the victim and are often husbands or in-laws. (Zee news)

Newspapers not responsible for advertisers misleading claims

The Delhi High Court has ruled that newspapers have no duty to bear when it comes to advertisements on their pages for consumer goods which are false and misleading. The trial courts order requiring a disclaimer was set aside. (Indiaprwire)

Parliament approves the LLP Bill

With Parliamentary approval of the LLP Bill, an alternative business vehicle is now made available to anyone who seeks flexibility in management structure along with limited liability i.e. no joint liability and liability limited to the agreed share in the partnership. With the Partnership Act not applying to this model, several other restrictions will be eased. (Thaindian News)

Ansals get a year down

The Delhi High Court declined the plea of the Uphaar victims association to have a stricter jail term for the Ansal brothers and reduced their existing two year sentence to one year citing old age and social standing as factors being taken into consideration. In addition, the court reduced to two years the sentences of two Delhi Vidyut Board employees by holding them liable under Section 304 A (rash and negligent act) for improperly repairing the generators rather than imposing a penalty under section 304 of the IPC (culpable homicide not amounting to murder). Further, the gatekeeper who had bolted the door of the cinema and was absent from duty at the time the fire broke out was charged for negligence and his seven year sentence was reduced. (TOI)

Strong suspicion not enough to summon a person to court as accused says the Supreme Court

Holding that a person could not be brought to court as an accused simply on suspicion, the Supreme Court said that fresh evidence would be a pre-requisite where the accused was brought before the court under Section 319 of the IPC. A prima-facie case would have to be made out basis material presented. (Webindia123)

Celebrity endorsements – Liability ratcheted up

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By Sidhartha Jatar

One of the most commonly used tools for marketing a product is advertising, which uses the media to ‘reach out’ to consumers. Celebrities are an essential pawn in this strategy as they lend credibility to the product and engage with the consumer. But do celebrities really know the product to which they lend their face? If celebrity endorsers are not experts (or at least sufficiently knowledgeable) on the products they promote, how far should they be responsible if that product turns out to be a damp squib?

Currently, section 68 of the Companies Act, 1956 provides for punishment to any person fraudulently inducing another to invest money through a false or misleading statement made either knowingly or recklessly. The new Companies Bill, 2008 which was tabled in Parliament this October increases the liability to 50 lakh rupees and adds to this a jail sentence that may extend to three years (currently, the law provides for a fine of 1 lakh rupees). The inference then is that a celebrity who “knowingly” or “recklessly” makes a false representation will potentially have to undergo up to three years imprisonment. Quite clearly, the legislature wishes to add sufficient deterrent value to unfair practices and keep both celebrities and the companies on behalf of whom they endorse the product, in check.

It is a debatable issue whether the ratcheting up of liability is too severe given that ultimate product/service liability must rest with the manufacturer/service provider. While it may be fair to hold a management representative of a company liable for a misleading claim, should the celebrity be required to conduct a due diligence before entering into advertising contracts? While on one hand, the possibility of a jail term may appear harsh, proving knowledge and recklessness might turn out to be a difficult endeavour. Some of the factors that will have to be considered include – the nature and extent of involvement of a celebrity with the product (whether he/she is simply an endorser or has become a spokesperson over time), the impact the advert has had on the consumer (dependent on the ‘size’ of the celebrity and factual evidence), the extent of knowledge the celebrity has about the product and given the circumstance, the level of care the celebrity ought to have taken before endorsing the product. Unless there is proof beyond reasonable doubt (as is required under criminal law), the chances of a celebrity being sent to jail are low.

The next thought that occurs to one’s mind is why the Companies Act has taken on the onus of protecting the consumer from misleading advertisements. Why should a company tribunal be required to look into consumer protection issues? The Consumer Protection Law itself offers a detailed definition of an ‘unfair trade practice’, a term that was introduced to the Act in 1984 in order to protect consumers against false and misleading ads, among other things. Clearly, then, celebrity liability should fall under the purview of this act, rather than the Companies Act.

It remains to be seen how effective the new provision will be. There is little doubt,though, that such regulatory structures will contribute to the caution celebrities exercise while seeking to ‘cash in’ during a media blitz.

Will God ever return to Rwanda to spend the night?

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By Sidhartha Jatar

With the Tanzania based ICTR sentencing former defence official Theoneste Bagosora to life in prison for participating in the 1994 genocide in Rwanda, the international community can ‘pat itself on the back’ for a remarkable first – Bagosora is the first person to be indicted by the tribunal for planning and organizing killings.

Ever since the ICTR was set up in 1997, over 34 people have been convicted and 23 still remain on trial. Recently, a famous singer – Simon Bikindi was sentenced to 15 years in prison for an inflammatory speech he made inciting violence against Tutsis during the genocide. Such convictions go a long way in reassuring Rwandans that justice has not left their doorstep and perpetrators of this inhuman crime will be brought to book.

That, however, does not take away from the fact that over 800,000 people were killed in a period of 100 days during the genocide. Compare this to Pol Pot’s murder of a million victims in Cambodia over four years or Hitler’s systematic extermination of Jews during World War two and the scale and rate of the genocide will become clear.

History of the conflict

The root of this conflict lies in social differentiation and concentration of power amongst the Tutsi elite (the minority group) which exercised total control over the Hutu majority for centuries. While a case of elitism may be made against the Tutsi community, racial prejudice and the myth of Tutsi superiority was implanted and reinforced only during European colonization (since 1894). E.g. John Hanning Speke, the Nile explorer, propounded the Hamitic hypothesis according to which all culture and civilization in the region was introduced by the fairer, taller Tutsi community. The Germans and Belgians exploited such vague theories and instituted a policy of indirect rule (Tutsi chieftains were left to rule but in reality were mere puppets), thereby perpetuating feudalistic ways and introducing a system of apartheid.

During the independence movement in 1959, the Tutsi’s – who had long been favoured by the Europeans – found themselves at the receiving end as the Belgians switched sides and backed the rebellion towards majority Hutu rule. This resulted in an exodus of Tutsi’s from Rwanda who for the better part of their lives would live stateless in Uganda, Burundi, Zaire (now Congo) and Tanzania. Through a UN supervised referendum, a Hutu led party came to power in 1961 and the century’s old Tutsi power base shifted to the Hutu majority. The following three decades would see an internal power struggle with a leader emerging in the form of Juvenal Habyarimana. The revolutionaries in Rwanda would, in the words of V.S Naipaul, become “mimic men” as they practiced the very abuses which they had revolted against. Habyarimana declared in 1986 that Rwanda was full and could not accommodate any Tutsi refugees: the Rwanda Patriotic Front (Tutsi rebels) was founded in Uganda the following year. In 1990, an attack by the RPF on Rwanda resulted in probably the first genocide against the Tutsi community with newspapers such as Kangura circulating the “Hutu Ten Commandments” urging violence on all fronts. As tensions mounted and the fighting intensified, over a million people were displaced and left homeless. In 1993, renewed peace negotiations resulted in the Arusha Peace agreement and UNAMIR was deployed by the UNSC to implement it. Any progress that may have been made was unfortunately reversed when President Habyarimana’s plane was shot down (allegedly by the RPF but suspectedly by his own military officers). This moment was used by the Government to justify a wide-scale slaughter of Tutsi’s. Radio Rwanda reported that the Virgin Mary had told a renowned local visionary that she approved the killing of Tutsis and that the President was with her in Heaven. The Interhamwe, a pro-government militia assisted in the bloodletting. Militiamen with machetes cut off hands and limbs of people, raped women and dumped bodies into river streams. One can only imagine the fear and desperation that people must have felt. Whereas the genocide might have been expected to strengthen the ruling Hutu party, in fact, the R.P.F gained control of Rwanda and established a new government. Revenge killings followed and an estimated two million Hutus fled to neighbouring Congo. Ever since, a Hutu rebel force has grown in Congo resulting in the Tutsi government of Rwanda invading Congo twice with the objective of eliminating the Hutu militia. Over five million lives have been lost in this renewed conflict and the worst seems yet to come considering that the struggle -which has spread to Congo – is no longer about an ethnic struggle but also about a race for resources. Today, an ethnic-Tutsi Congolese military rebel named Laurent Nkunda runs amok. Under the garb of eliminating the Hutu militia, he has occupied resource rich regions of Congo and in the process committed several war crimes for which he is sought by Congolese authorities and the international community. The death of innocent civilians continues as the plague of hatred and violence spreads like wildfire.

Reflections

Who is to blame for this crisis? Can we pin-point a perpetrator and serve the cause of justice by trying henchmen and militia leaders? Was this genocide a crime against humanity (in its non-technical sense) or a crime by humanity? After all, military bosses, businessman, mayors, journalists, teachers, taxi-drivers, shopkeepers and a host of unidentifiable persons were involved in the fratricide. Even today amongst the crowd lurk murderers and rapists who did no better than the men being tried at the ICTR. How can society punish them? Would the slow and painstaking trials at the ICTR satisfy Rwandans? Would it fill the vacuum left behind?

In Rwanda there exists a fractured society and a psychologically traumatised generation which will have to deal with the complexity of the conflict and its socio-political and historical dimensions. Survivors of this tragedy will have to rebuild their faith in humanity and answer a seemingly unanswerable question -”When a people murders up to a million fellow-countrymen, what does it mean to survive?”

To end with a note of optimism and hope for the future, a famous Rwandan proverb would seem apt: imana yirirwa ahandi igataha i – God spends the day elsewhere, but always comes back to spend the night in Rwanda.

 
(Image Source: Wiki Commons)

“Legitimate Expectation” – An Administrative Whip

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By Gururaj Saswadkar 

Introduction: 

The theory of Legitimate Expectation is a branch of Administrative Law. It is the newest enroll to the long list of concepts fashioned by the Courts for the review of administrative actions. It has been accepted by the English, Irish and Indian Courts but has been outrightly rejected in Australia and Canada.    

Meaning and Explanation:  

The theory of Legitimate Expectation marches into operation when there is an express promise from any Public Authority / Official that there is a regular practice of a certain thing, which the claimant can reasonably expect to continue. In other words, it consists of either inculcating anticipation in the citizen, or assuring him that under certain rules and schemes he would continue to reap certain benefits of which he would not be deprived unless there is some overriding public interest.   

Lord Diplock, in the English case Council of Civil Service Union v. Minister for Civil Service, has explained the doctrine, both in procedural and substantive contexts.  

Procedural: The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before any decision is made. 

Substantive: The substantive part of the theory is that if a representation has been expressly made that a benefit of a substantive nature will be granted or if any person is already in receipt of any benefit, it will be continued and will not be substantially varied to the disadvantage of the recipient.  

The representation should be on the lines of an express promise, or an established past action or settled conduct. It must be clear and unambiguous. It can be to an individual or to a class of persons. 

Thus, to cut a long story short, Legitimate Expectation concerns the relationship between Public Administration and an individual. The principle means that expectations raised by administrative conduct have to be respected and fulfilled lest public interest and betterment demands otherwise. Non-fulfillment can have legal consequences. The role of the Courts in the entire transaction is to safeguard the individual’s expectations in the face of change of policy. They have to ensure that the individual’s expectations are fulfilled mutatis mutandis the Governmental Policies. The theory is an enlargement of principles of Natural Justice. Precisely speaking, the Government and its Departments, in administering the affairs of the country are expected to honour their statements of policy or intention. The policy statement cannot be disregarded unfairly. Unfairness and arbitrariness are akin to violation of principles of natural justice.  

In Food Corporation of India v. Kamdhenu Cattle Feed Industries Ltd. [AIR 1993 SC 1601], the Supreme Court has observed that the doctrine of legitimate expectation falls within the purview of the principle of non-arbitrariness as incorporated under Article 14 of the Constitution. It becomes an enforceable right when the Government instrumentality fails to give due weight to it.  

However, as per the observations of the Supreme Court in Assistant Excise Commissioner v. Issac Peter (1994) 4 SCC 104, the doctrine of legitimate expectation cannot be invoked to alter the terms of a contract of a statutory nature.  

Similarly, in Howrah Municipal Corporation v. Ganges Road Company Ltd (2004) 1 SCC 663 it has been held that no right can be claimed on the basis of legitimate expectation when it is contrary to statutory provisions which have been enforced in public interest.  

In Madras City Wine Merchants Association v. State of Tamil Nadu (1994) 5 SCC 509 the doctrine of legitimate expectation was held to become inoperative when there was a change in public policy or in public interest.    

In Union of India v. Hindustan Development Corporation [AIR 1994 SC 988], the Supreme Court has elaborately considered the reverence of this theory. In the estimation of the Apex Court, the doctrine does not contain any crystallized right. It gives to the applicant a sufficient ground to seek judicial review and the principle is mostly confined to the right to a fair hearing before any decision is given. 

It was held in Navjyoti Co-op Group Housing Society v. Union of India [AIR 1993 SC 155] that the doctrine of legitimate expectation imposes in essence a duty on the public authorities to act fairly by taking into consideration all the relevant factors bearing a nexus to such legitimate expectation. The concerned authority cannot act arbitrarily so as to defeat the expectation, unless demanded by over-riding reasons of public policy. 

Further, in another landmark judgment, M.P. Oil Extraction Co v. State of Madhya Pradesh (1997) 7 SCC 592, the Supreme Court was dealing with the license renewal claims of certain industries. It was held in this case that extending an invitation, on behalf of the State, was not arbitrary and the selected industry had a legitimate expectation of renewal of license under the renewal claims. 

Lastly, in National Building Constructions Corporation v. S Raghunathan [AIR 1998 SC 2776], it was held that legitimate expectation is a source of both, procedural and substantive rights. The person seeking to invoke the doctrine must be aggrieved and must have altered his position. The doctrine of legitimate expectation assures fair play in administrative action and can always be enforced as a substantive right. Whether or not an expectation is legitimate is a question of fact.    

Conclusion: 

The emerged concept of Legitimate Expectation is gradually gaining importance. The substance of the doctrine is honouring implied commitments without hampering express policies. The doctrine invokes to enforce regularity, predictability and certainty in Government’s dealings vis –a – vis the masses.

(Gururaj is a student of law at ILS Law College, Pune)