Author Archives: Nandita Saikia

About Nandita Saikia

Nandita Saikia enjoys studying intellectual property issues. She has been extensively published, and her experience encompasses work as a litigator, journalist, editor, website content co-ordinator, as an ICT campaign content manager and as a guest lecturer of music history. She can be contacted at saikianandita[at]gmail[dot]com.

Absurd Reason for Rape Acquittal

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If there ever was a crazy reason to let a man get away with rape, it’d have to be this reasoning behind the judgement of the Orissa High Court: “Law is well settled that it is not possible for a single man to commit sexual intercourse with a healthy adult female in full possession of her senses against her will.”

 At first glance, the reasoning is just about as ‘sound’ as it was in the “Jeans are difficult for another to remove. Therefore, a woman who was wearing them could not have been raped.” case and as repugnant as Judge Archie Simonson’s “Women are sex objects whether or not they like it.” logic.

 

In the case in which the High Court came up with this extraordinary pronouncement, a healthy tribal woman whom the High Court deemed capable of resisting rape was raped and there was only one witness to the crime. The High Court concluded that the perpetrator had either been falsely accused or that the sex was consensual. The court based its conclusions upon the reasoning that there was no evidence of any resistance on the part of the woman.

 

Luckily, the Supreme Court did not agree with the it. On December 16, 2008 Justices Arijit Pasayat and Mukundam Sharma quashed the acquittal order passed by the High Court and proclaimed:

 

“The conclusions are not only confusing but border on absurdity.” The apex court also professed itself to be baffled as to why the HC said that the law says that it is impossible for a single man to rape a healthy woman who was in possession of her senses since, as it pointed out, “there is not even a single decision which says so.”

 

The Supreme Court also reprimanded the High Court judge for failing to adhere to judicial discipline by disclosing the name of the rape victim.

 

(The relevant case is State of Orissa v Sukru Gouda.)

Amending the Law on Adultery

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Adultery was made a crime under India’s current legal system during the time of the Raj itself. Based on the idea that a wife belonged to her husband in the most literal sense of the word, the Indian Penal Code allowed husbands to choose to have criminal proceedings initiated against those men with whom their wives committed adultery since those men had laid claim over the ‘property’ which did not belong to them.

After independence, the law was challenged in a series of decisions, but the Courts upheld its validity and said that not only was the law constitutional but that it was also fair not to proceed against an adulterous wife through the Indian Penal Code. The rationale behind this changed though; wives were seen as being innocent and as requiring protection. Also, the courts ruled that the provisions of criminal law were not intended to be used by one spouse against the other.

Given current circumstances, and considering that Victorian England along with its moral code no longer exists, one would imagine that adultery should not be a crime. However, it has been widely reported that contrary to attempting to decriminalise adultery, the Government has been trying to garner opinions to see if and how the law can beamended to make wives punishable for the offence of adultery as well.

A number of activists have opposed this move for reasons ranging from their not believing that women should be made accountable considering that they are hardly in powerful socio-economic positions to not believing that adultery should be a crime at all.

It isn’t entirely clear why the Government is concentrating on making the criminal provisions dealing with adultery gender-neutral instead of focussing on making adultery merely a civil wrong. Civil wrongs do not leave people in gaol, crimes can.

*IPC section 497: Whoever has consensual sexual intercourse with a wife of another man, without the consent or connivance of that man, is guilty of adultery.”

Copyrighting the Taj

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Some time ago, the Egyptian government was reported to have been contemplating copyrighting the pyramids. No one knew how they planned to do so or, for that matter, how they planned to take action against would-be infringers. After a while, the reports died down and no one seems to be quite certain what happened to the government’s plans.

The Indian High Commission at Dhaka seems to have missed both the controversy and the amusement it gave rise to in legal circles. According reports, the High Commission (or perhaps just its spokesman) threatened to invoke copyright laws against a Bangladeshi businessman named Ahsanullah Moni who’s building a replica of the Taj Mahal in Bangladesh.

Indian copyright law does protect works of architecture to an extent. Their artistic character or design is protectable and so are models for buildings provided the buildings are located in India. In other words, buildings which look like boxes cannot be protected by copyright law, and whether or not the buildings are shaped liked boxes, copyright protection does not extend to processes or methods of construction.

Most importantly, copyright protection lasts for sixty years after the death of the author if the work is published during the lifetime of the author. By no stretch of the imagination can copyright exist in the Taj Mahal. If not anything else, it was built long before copyright protection existed.

Never mind the practical implications of claiming that structures such as the Taj have such protection. Every keychain and model maker would then have to obtain a licence before selling their wares whether to tourists or others. And it’d be interesting to see just how such a requirement was enforced.

Unconscionable Contracts

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“This contract is so one-sided, I am astonished to find it written on both sides of the paper.” – Lord Evershed M.R.

The Doctrine of Unconscionability is one of the exceptions to the freedom of parties to contract. It comes into play where bargaining power is not evenly distributed. As a general rule, as long as a contract involves some form of consideration, courts do not get involved. However, if a contract is excessively one-sided, courts are willing to step in and come to the aid of the injured party.

Section 16 of the Indian Contract Act 1972 deals with undue influence. It says that a contract is said to be induced by undue influence if one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. For example, a person who is in a position of authority over another, or who stands in a fiduciary relation to the other, or who makes a contract with a person of sub-normal mental capacity is deemed to be in a position to dominate the will of that other person. If, in such situations, the transaction appears, on the face of it or on the evidence adduced, to be unconscionable the person who is in a position to dominate the will of the other is required to prove that the contract was not induced by undue influence.

Further, under Section 19A of the Act, the party whose consent was obtained by undue influence may choose to avoid the contract. The Court may set the contract aside either absolutely or, if the party entitled to avoid it has received any benefit under it, upon such terms and conditions which the Court thinks are just.

However, the application of the doctrine under Indian statutory law is on a much firmer footing under Section 23 of the Act which says that the consideration or object of an agreement is not lawful if it is immoral, or opposed to public policy. And if the consideration or object is not lawful, the contract is void and unenforceable.

Deciding whether or not a contract is unconscionable though is often difficult to do – in some instances, it is obvious such as in Employment Contracts which contain absurdly broad non-compete clauses or in boilerplate contracts which favour sellers and other drafters. In others, however, it is more difficult to tell the difference between a well negotiated deal (for one party) and between the imposition of an unconscionable contract term on another party to the contract. Also, the decision as to whether or not a contract is actually unconscionable relies heavily on morality. As such, the factors which come into play to reach a decision are decidedly subjective.

Augusto C. Lima says, “The defense of freedom of contract, which finds contemporary resonance in the economic analysis of contract law, usually entails the narrow application of unconscionability. The concept of unconscionability for such a purpose is narrowed by the assignment of a procedural, rather than substantive, nature to it. In such a procedural view, unconscionability is but a device to fill in the gap between a defect in contract formation (such as fraud or duress) and unconscionability as substantive unfairness (focused on the morality of the transaction),” in ‘When Harry Met Kreutziger: A Look into Unconscionability Through the Lenses of Culture‘.

Indian courts have generally been willing to interfere in boilerplate contracts on the ground that they are unconscionable. However, proving unconscionability in other situations can be an uphill task in the absence of clear evidence either within the agreement itself or otherwise.

Some Indian cases on the subject:

  1. Chairman and MD, NTPC Ltd. v. Reshmi Constructions, Builders and Contractors, 2004
  2. LIC of India v. Consumer Education Research Centre, 1995
  3. Delhi Transport Corporation v. DTC Mazdoor Congress, 1990
  4. Bihar SEB v. Green Rubber Industries, 1989
  5. Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, 1986
  6. Pierce Leslie and Co. Ltd. v. Violet Ouchterlony Wapshare, 1968

(This article is by Nandita Saikia and was first published at LawMatters.in.)

Online Revelations and Privacy

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The urge, especially when someone does something nasty, to bitch about them online whether on one’s own blog, on a site such as juicycampus.com, in comments to some article or somewhere else entirely can be very hard to resist.

I’m not entirely certain whether it’s a good idea though even leaving aside the legal issues: possible defamation, incitement to violence, hate speech etc. It isn’t as though once you’ve vented your feelings, you’ve vented them and that’s the end of the story: what you say could come back to haunt you years later. Search engines have particularly unforgiving memories and unless you have have a name like ‘Mary Smith’ which you share with a million other people, all it is ever going to take for someone to dig up what you’ve said (assuming you haven’t said it anonymously) is a thirty second search online, not a thirty-month long search at the archives of twice as many publications.

An example Daniel J. Solove gave in his book ‘The Future of Reputation: Gossip, Rumor, and Privacy on the Internet‘ was of a man who’d written about his ‘brush with the law’ at the age of seventeen had it follow him for the rest of his life whether at job interviews or on dates despite the fact that, officially, his record was unavailable.

I’ve come to believe that whenever one gives out personal information online, even if it is entirely in the form of a vindictive rant, it constitutes an invasion of one’s own privacy and while it certainly is sometimes productive such as when you want a company to honour a guarantee it’s made to you and your bitching online leaves them worried about their reputation being damaged, I’m not sure it’s often advisable.