Author Archives: Law Matters

Juveniles Defined: 2000 Law Applies

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A Juvenile Justice Act was passed in 1986. Fourteen years later, another Juvenile Justice Act was passed in 2000. Both of these Acts were meant to ensure that children who committed crimes were treated humanely and that they were given an adequate opportunity to reform themselves away from the influence of hardened criminals.

One of the main problems with the application of the criminal justice system to juveniles though has been that the two statutes of 1986 and 2000 both defined juveniles differently. Under the 1986 Act, juveniles
were defined as those under the age of 16 while under the 2000 Act, juveniles were defined as those under the age of 18.

The result of this inconsistency was that all those who committed crimes when they were over the age of 16 and under the age of 18 between the years 1986 and 2000 wound up being treated like adults. Many of them are still undertrials today.

One such person, Hari Ram, approached the Supreme Court for relief. He had allegedly committed an offence at the age of 17 and was being treated as an adult. A bench of the Supreme Court comprising Justices Altamas Kabir and Cyriac Joseph allowed his plea to be treated as a juvenile and settled the inconsistency between the two statutes.

The Court, in the case of Hari Ram v State of Rajasthan, said that it was unacceptable to have two different
definitions operate simultaneously. It said, “…all persons who were below the age of 18 years on the date of commission of the offence even prior to April 1, 2001 [the day the 2000 Act came into force] would be treated as juveniles even if the claim of juvenility was raised after they had attained the age of 18 years on or before the commencement of the Act and were undergoing sentence upon being convicted.”

Thus, the 2000 law has now, thankfully, unequivocally been given precedence over the 1986 Act. This should come as welcome news to all those who can now benefit from the definition of juveniles under the
2000 law.

More Protection to Women in Live-in Relationships

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Women in live-in relationships are supposed to receive the same protection as wives when it comes to domestic violence. Now,  it appears that that protection also applies to dowry.

Section 498 A of the Indian Penal Code has long been criticised by so-called men’s rights activists who claim that they are doing such things as ‘saving Indian families’, never mind that they’re doing so at the expense of the safety of Indian women. Section 498 A makes cruelty against women by their husbands and in-laws an offence.

So far, it has been possible for a man to avoid being brought under the ambit of this Section by simply not marrying the woman in question. The literal interpretation of the Section requires a wife to be treated cruelly for an offence to have been committed, and the logic was: where there is no wife, there can be no cruelty under the ambit of this Section of the law.

In Koppisetti Subbharao @ Subramaniam Vs. State of A.P., a Bench of the Supreme Court comprising Justices Arijit Pasayat and A K Ganguly changed this though. Justice Pasayat who wrote the judgment said that the would not allow a narrow interpretation to stand in the way of women’s rights.

In this case, a man named Koppisetti Subbharao had been accused of harassing his live-in partner for dowry. He defended himself saying that Section 498 A did not apply to him since (a) he was not married to his live-in partner and (b) he was married to someone else.

The Court was not impressed. It said that ‘the nomenclature “dowry” does not have any magical charm written over it. It is just a label given to a demand of money in relation to a marital relationship’. Drawing parallels with the law which recognises the legitimacy of children born of void and voidable marriages, it explained its stand asking: “Can a person who enters into a marital agreement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise?”

Preferring a liberal construction of the law, the Court went on to explain why it had rejected a literal and technical interpretation saying: “Such legal niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment of a woman over demand for money.”

This judgment seems to go a long way in saying that men can’t dodge either responsibility or liability to women they live with by simply not getting married to them.

Judgment: http://judis.nic.in/supremecourt/helddis3.aspx

The Pirates Flounder

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By Shyam Somanadh

Entertainment Industry Wins Pirate Bay Case, Loses $390 MN business opportunity

By now it is all over the place that Pirate Bay (or at least the four defendants) has lost its lawsuit regarding their enablement of piracy using the website. Neither will this ensure that piracy related to entertainment will come to an end, nor will this ensure that artists will find another way to monetize their efforts beyond what the entertainment industry can offer.

I have no quibble with the fact that piracy is bad, what I do have a problem with is the fact that on the one hand organizations like RIAA are only happy to sue the pants off file sharers, citing ever declining numbers in their businesses, while on the other, they refuse to see that not everyone who is using P2P has price point zero as the only acceptable price range.

At this very moment, Pirate Bay’s trackers are supporting over 22,387,439 seeders and leechers over IPv4, there is a much smaller number on their IPv6 network. That is a huge number of people who are actually acquiring content, concurrently. Well, to be precise, 22 million of them in one go. And we are not even counting the users on the other networks.

If the entertainment industry can see this only as an opportunity to sue 22 million people and get a dollar off each of them they deserve to die the painful death they are undergoing now. If they can see the 22 million as a live and kicking market, they deserve to live and live well.

For those who argue that piracy is free are sadly mistaken. Every download is paid for at some point in the chain. If you do that in your office, it is your company that foots the bill. If you do it at your home, you pay for it with your DSL/Cable bill. In effect, there is no ‘free’ in the equation here, there is already a value attached to it, even when you are leeching off a torrent. The only problem in the whole picture is that the ones who are getting paid are neither the content creators, nor it is the distributors who get paid.

So, who gets paid?

The telcos who sell you bandwidth and the connection are the ones who profit most by it. Even as sneaky as that can be, it is not their fault either that people use torrents and P2P to get their fix. The fact remains that there is no simple, sane and legitimate way to consume content at a reasonable price point at the moment. The entertainment industry has always refused to embrace innovation on that front. They should de-incentivize piracy, by working hard to make non-pirated content easily available.

Instead, what do they do? They spend their time trying to keep price levels at the highest possible points, trying to maximize their margins and holding on to the days of glory days of CD and cassette tape sales, than trying to open their eyes to the new reality that this will work in their favour only if they play for scale. The average person probably does not download more than 30 songs a month on the internet. Why is it not possible to address that need at a flat rate which would make it much easier for everyone to understand and legitimately participate in the process.

You don’t even need to convert the entire 22 million users connected to the Pirate Bay tracker to make this work. At even 25% conversion, that is 6.5 million users in a month. Those users shelling out $5 per month for 30 tracks, without DRM is worth about $32.5 million in monthly revenues and $390 million in annual revenues. I am playing easy with the numbers here, but my point is valid, there is a massive business opportunity here, which is getting ignored.

Even with DRM, Apple and the iTunes franchise has shown that people can and will pay for entertainment given the right experience and a useful price point. But really, why is Apple owning that space, with Amazon competing hard with them on that front? Why is the entertainment industry a no-show here, other than the rare moments when they shake themselves out of their stupor, and trying to up their margins per track sold?

Piracy is really no news. It has been there before the internet was created and it will continue to remain with us as long as we are around. What the entertainment industry needs to recognize is that they need to change their business models and the way they operate now. And every day they spend chasing these people in court with victories that result in a minor blip on the global piracy radar, is another day they are losing to save their own livelihoods.

School Punishment Kills Student

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It has been reported that a girl in Delhi died after being punished in the municipal school she attended. Her name was Shanno, and she was eleven years old. Apparently, her teacher made her sit in a position imitating a chicken for two hours in the sun and piled bricks on her back. The girl is reported to have died from a lack of oxygen although the details are not clear.

Much could be said about the teacher’s lack of all good sense and humanity but words would probably do a poor job of describing it. To treat a child in such a manner especially considering that temperatures in Delhi are well over 40 degrees centigrade would require extraordinary cruelty.

The media, in its coverage, seems to have focussed on the dearth of laws to protect a child in such a situation and has spoken of the Delhi High Court and the NCPCC taking a stand against corporal
punishment in schools.

It isn’t entirely clear why that should be especially relevant in a case such as this. The Indian Penal Code doesn’t have any shortage of provisions to deal with harming other persons be they children or
adults: causing hurt, causing grievous hurt, assault, murder and culpable homicide, among others.

And while it is certainly not a bad idea to have some sui generis legislation in place banning the corporal punishment of children both within and outside schools, it is entirely ridiculous to imply that
the absence of such legislation in any way bars awarding punishment to those guilty of assaulting a child.

Even leaving criminal law aside, erring teachers and institutions could always be sued under tort law. The principle of vicarious liability, among other things, would ensure that schools which had such teachers could also be pursued through legal channels.

True, children are often assaulted by school teachers. True, there exists no law which specifically deals with banning corporal punishment. It does not, however, automatically follow that there are no remedies available to children and their parents when teachers act in such an unconscionable manner and assault their students.

Another Incident of Ragging

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Every once in a while, the news of a student dying because of ragging hits headlines. Usually, it’s followed by a few debates on the telly after which everyone but those involved in and affected by the issue forget all about it. Until the next time it happens.

On March 16, 2009, the issue came up before the Supreme Court following the death of Aman Kachroo, a student of Dr Rajendra Prasad Medical College, Kangra, Himachal Pradesh. Aman was ragged following which he died. It isn’t entirely clear what exactly it was that caused him to die: he suffered a perforated eardrum and internal injuries but there are queries about whether the doctor who attended to him was negligent in treating him.

In addition to this, Additional Solicitor General Gopal Subramaniam also spoke of the death of a girl student of Agriculture and Engineering College, Bapatla, Andhra Pradesh after allegedly being
forced to dance obscenely.

The Supreme Court did not take the issue lightly and Justices Arijit Pasayat and A K Ganguly issued a show cause notice to the Principal and Registrar of the Dr Rajendra Prasad Medical College asking them to explain why contempt proceedings should not be initiated against them for not complying with the court’s directions to prevent ragging.

The notice issued by the Supreme Court also required the Principal and Registrar of the Medical College to state what action was taken after the ragging incident was brought to their notice. In addition to this, the court asked the Medical Council of India to inquire into the allegations of medical negligence against the doctor who treated Aman, and the Chief Secretaries and Directors General of Himachal Pradesh and Andhra Pradesh to file separate affidavits stating what they have done to comply with the court’s earlier directions and what action has been taken against the two institutions as well as against the students who did the ragging.

Justice Arijit Pasayat said in no uncertain terms, “It appears that the concern shown by this court has not been taken seriously by the authorities. Prima facie it is contempt of this court. The directions issued by this court on May 16, 2007 and February 11, 2009 on the basis of the R K Raghavan Committee Report to end the menace have not been complied with. Time has come for cutting off financial age to there institutions which are not complying with the directions.”

Perhaps the possibility of this happening i.e. financial support being cut will actually get institutions to do what they can to stop ragging. The University Grants Commission has also said that it will finalise stringent rules on the issue by the first week of April 2009.

The intervention of the Supreme Court and the measures of the UGC come too late for the students who have alreay lost their lives but, with any luck, they will help others in the future.

References:

The Times of India, The Hindu, Indlaw,  IndiaJournal

The National Flower

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It doesn’t seem too unreasonable at first glance to say that a national symbol should not be used by a political party for political gain. That is essentially what Shaheen Parvez has been saying for some five years now. However, on March 16, 2009, the Supreme Court dismissed a Special Leave Petition she filed on the issue.

It was contended in the SLP that the lotus which is the BJP’s symbol cannot be used by the party because such use would be against the Emblems and Names (Prevention of Improper Use) Act. This is the statute which prevents such symbols as the Ashoka Chakra (and a whole host of others) from being used in a number of ways such as in the names of commercial establishments.

This SLP which sought the cancellation of the lotus symbol allotted to the BJP was made against a December 2008 Delhi High Court Order and was dismissed at the admission stage itself by a Bench of the Supreme Court comprising Chief Justice K G Balakrishnan, Justice Sirpurkar and Justice Sathashivam.

The petitioner said that she wrote letters to the Election Commission in 2004 and 2005 asking for the cancellation of the symbol but the Commission turned her down saying that the symbol had been reserved by the BJP for some twenty-five years prior to which it had been used by independents. It was after this that the petitioner approached the Delhi High Court. After failing there too, she approached the Supreme Court.

The apex Court, however, did nothing at all towards preventing the party from using the symbol.

Reference: The Hindu; March 17, 2009

Sex Selective Abortion Rampant Amongst the Rich

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While it’s well known that female foeticide is widely practised in India, the general perception is that the practice prevails due to poverty and the lack to education.

There have been a number of studies in recent years which have disproved this. In fact, they’ve shown that some of the most lopsided sex ratios in India exist in some of the richest neighbourhoods such as GK in New Delhi and in states such as Punjab which are certainly not amongst the poorest states in the country.

A new study by the Harvard School of Public Health lead by S V Subramanian reported by the Statesman on December 15, 2008 confirms this. It found that the odds of having a boy is higher in a rich family than in a poor one, in an educated family than in an uneducated

one, and in an urban family than in a rural one.

The study clearly shows that the Pre-Natal Diagnostic Techniques Act, 1994 is a failure, and that the intensity of the preference for sons together with the ease with which sex determination tests could be performed are factors which make the sex ratio so lopsided among the rich.

Saying that dowry and inheritance practices could be what causes families to want sons, the study raises the rather worrying possibility that as strong a preference for sons may simply be dormant among the poor. It goes on to say that their reduced access to technology may be what is preventing them from participating as actively in foetal sex determination followed by selective abortion.

Usually, education and awareness are touted as solutions to the problems of female infanticide and foeticide in India. Clearly, they are not solutions. It isn’t clear what would solve the problem though.