Category Archives: Legal Provisions

Rehauling Sexual Assault Law in India

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Comments on the Proposed Amendments to Criminal Law

The Criminal Law (Amendment) Bill, 2010 has been made available.  The Bill contains proposed amendments to two laws: the Indian Penal Code and the Criminal Procedure Code. The former is a substantive law while the latter is a procedural law. In other words, the Penal Code states what would constitute and offence and what the punishment for such offence would be. The Criminal Procedure Code, on the other hand, specifies the procedure required to be followed to implement the law laid down in the Penal Code.

The Bill, inter alia, redefines rape by proposing to amend Section 375 of the Indian Penal Code in the following terms:

A man is said to commit ‘sexual assault’  if he –

(a) penetrates the vagina, the anus or urethra or mouth of any woman with

(i) any part of his body; or

(ii) any object manipulated by such man

except where such penetration is carried out for proper hygienic or medical purposes;

(b) manipulates any part of the body of woman so as to cause penetration into the vagina, the anus or the urethra of the offender by any part of the woman’s body;

(c) introduces any part of his penis into the mouth of woman,

under the circumstances falling under any of the following six descriptions:-

Firstly.-Against her will.

Secondly.- Without her consent

Thirdly.- With her consent when such consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married.

Fifthly.-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that action to which she gives consent.

The exception for medical/hygienic purposes in Section375(a), however, doesn’t seem to require consent. What this would mean is that if the penetration were for medical purposes, and such purposes are not defined, the doctor, would not be required to obtain the consent of the woman so as to avoid falling foul of the provisions of this section if the proposed amendment were to become law. This, of course, could be considered to fly in the fact of the lived experiences of many women. It completely denies the existence of medical rape. It would also seem to exclude from the scope of sexual assault such things as medical students performing pelvic exams on unconscious women without their consent. While it is possible to see the requirement for such an exception, it is difficult to understand why the exception does not state: “except where such penetration is carried out for proper hygienic or medical purposes with the consent of the woman.”

After defining sexual assault, the proposed amendment then states the punishment for sexual assault and lists specific sexual assaults which would be dealt with in a stricter manner in Section 376 of the Indian Penal Code. Under Section 376(1), sexual assault would normally be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life and, possibly, also a fine. Under Section 376(2), sexual assault by certain persons and/or under certain circumstances would be treated more seriously. Specifically:

Whoever,-

(a) being a police officer commits sexual assault -

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a women in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits sexual assault on a woman or minor in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and commits sexual assault on any women or minor inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits sexual assault on a woman in that hospital; or

(e) being relative of, or person in a position of trust or authority towards, the women assaulted commits sexual assault with such woman; or

(f) commits sexual assault on a woman knowing her to be pregnant; or

(g) commits sexual assault on a woman when such woman is under eighteen years of age; or

(h) commits gang sexual assault,

(i) being in a position of economic or social or political dominance commits sexual assault on a woman under such dominance, or

(j) commits sexual assault on a woman suffering from mental and physical disability, or

(k) while committing sexual assault causes grievous bodily harm, maims or disfigures or endangers the life of a woman, or

(l) commits persistent sexual assault,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be imprisonment for life and shall also be liable to fine.

Thus, Section 376(2), if passed, would be an enhanced version of the current law as it introduces some new provisions such as that which deals with sexual assault by relatives.

Further, in the case of certain persons such as those who are in positions of authority or are public servants, sexual intercourse which does not amount to sexual assault would also be an offence under Section 376B of the Indian Penal Code in specified circumstances. If the perpetrator had taken advantage of his position and induced or seduced any woman either in his custody or under his charge or present in the premises and has sexual intercourse with her, the sexual intercourse would amount to sexual assault. The punishment for such an offence would be either simple or rigorous imprisonment for a term which may extend to 10 years but shall not be less than 5 years and, possibly, also a fine.

There has also been proposed an amendment to the Indian Penal Code (Section 376A) to deal with the sexual intercourse by a husband upon his wife during separation. Under this provision:

Whoever commits sexual assault with his own wife, who is living separately under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may be extend to seven years and shall also be liable to fine.

Despite the hype about the proposed amendments regarding rape being gender-neutral, it is clear from Sections such as 376(2) that many of the provisions are gender-specific. For example, sexually assaulting a disabled woman would, at least theoretically, under Section 376(2)(j) result in an enhanced punishment but there would be no such enhancement of the punishment if the victim were male.

Also, the provision of Section 376(2)(g) which states that those who commit ”sexual assault on a woman when such woman is under eighteen years of age” is unclear. It has also been proposed to add a Section (dealt with later in this post) which deals with the sexual assault of minors with a minor being defined as a person who is under the age of 18. Section 376(2)(g) deals with the sexual assault of women in this same age group. It is not clear why it has been thought to be necessary to have two provisions which deal with the sexual assault of female minors, or which Section would actually apply in such a case.

One explanation would be that Section 376(2)(g) actually intends to deal with the age of consent. However, if this is the intention, it is not truly reflected by the wording of the law. Assuming that Section 376(2)(g) lays down the age of consent for women and states that it is 18 years of age, whether this age is too high is debatable. What appears to be a lacuna here, however, is that the age of the man is not taken into consideration at all. There should probably have been a proviso inserted into this clause which so that it would come into effect only if the other person involved was “x” number of years older than the complainant/victim. In other words, it is probably not ideal to have a law which states that if one person was 18, and the other 19, the consent of the 18 year old would be immaterial since, presumably, the reason for having an age of consent is to protect minors from adults, and not from other minors or from persons who are at the threshold of majority.

The provision which is proposed to be inserted into the Penal Code to deal with the sexual abuse of minors states:

(1) A person is said to commit “sexual abuse of minor” against a minor under the age of eighteen years if the person-

(i) penetrates his penis into the vagina, the anus or urethra or the mouth of a minor;

(ii) manipulates any object or part of his or her body or that of the minor so as to cause penetration into the vagina, the anus or urethra or mouth of any minor with or without the will or consent of the minor.

Explanation-Mere penetration is a sexual assault within the meaning of this section.

(2) Whoever commits any offence of sexual abuse of minor shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

(3) Whoever, with sexual intent, invites, counsels or incites or exhibits pornography a minor to touch, directly or indirectly, with a part of the body or with an object, the body of any minor, including the body of the person who so invites, counsels or incites, or touches, with sexual intent, directly or indirectly, with a part of the body or with an object, any part of the body of a minor, shall be punished with imprisonment of either description which may extend to ten years.

(4) In this section,- (a) ‘minor’ means —  a person under eighteen years of age.

There have been discussions about the need for such an amendment to the law for many years now. So far, it has only been possible to deal with child abuse under the existing Section 377 of the Indian Penal Code which deals with so-called unnatural offences. The Section has been notorious for its widespread misuse — consenting adult homosexuals have routinely reported being threatened with its implementation since the Section makes homosexual acts an offence even if they are between consenting adults.

As mentioned at the beginning of this piece, it has also been proposed to amend the Criminal Procedure Code so implement the changes in the Penal Code. Strangely enough, with respect to child sexual assault, the following amendment has been proposed:

198B. No court shall take cognizance of an offence punishable under sub-section (2) or sub-section (3) of section 376C of the Indian Penal Code, except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by his father, mother, brother, sister or by his father’s or mother’s brother or sister or by any other person related to him by blood or adoption, if so permitted by the court.

This means that in cases of child sexual abuse, a complaint may only be filed by the victim or certain relatives of the victim. It does not seem realistic to expect a child to file, or even be able to file, a complaint. And, considering the way in which child sexual abuse, particularly when the abuser is a relative, is veiled in Indian society, it is extremely difficult to understand why relatives would be listed as the only possible complainants other than the victim. Under this provision, it appears that a complaint cannot be made by such persons as doctors and other health-care providers, caregivers or educators who may, in fact, be in a better position than relatives to make such a complaint.

Once a complaint has been made though, and the trial is in progress, it has been proposed to insert a provision into the Criminal Procedure Code which would allow the judge to take appropriate measures to ensure that the alleged minor victim of sexual assault or any other sexual offence is not confronted by the accused, although the court must also uphold the right of cross-examination of the accused.

Thus, although the aim seems to be to redefine and restructure sexual assault law in India, the proposed amendment, as it now stands, is not without its flaws.

By Nandita Saikia

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 infringement’ 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 infringement’ 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.

Image Source: WikiCommons

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)

Telenor’s India Foray a Self-Made Disaster

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By Tejas Adiga

Last week Norway-based Telenor, the world’s seventh largest telecom operator with a subscriber base of about 159 million, announced its foray into the Indian mobile market when it agreed to buy 60% stake in Unitech Wireless. Unitech Wireless is the one of the latest entrants into the telephony market, which has received license to operate in 22 circles across India. Telenor will pay $1.07bn or Rs 6120 crore for a 60 per cent stake in a fledgling Indian mobile operator, Unitech Wireless, giving it a foothold in a market that is growing at a rate of 8 million new subscribers a month.

So is Telenor’s investment a wise decision or one which may cost the Nordic giant dearly ??

Valuation Mess:

At the outset it is important to understand the valuations involved in the deal. Valuations of the target company are primary steps in deciding a possible investment or acquisition of any stake in that company.

Every telecom company in India for a mobile license pays Rs 1,650 crore as license fee. Every aspirant takes an UASL license for providing telephony, cellular, internet and other communication. Under the UASL scheme every successful applicant would get start up spectrum of 4.4 Mhz in all the 22 circles in India. Accordingly Unitech paid Rs 1650 crore as pan India license fee and was given startup spectrum in 13 circles.

Absurd Estimation:

Telenor- Unitech deal for 60% stake puts the enterprise value of the company at Rs 11,620 crore. Unitech has made a killing by getting an enterprise valuation of Rs 11,620 crore — seven times higher than the price that it paid to obtain pan-India spectrum across 22 circles in January and far higher than its own market-cap of Rs 8,100 crore. The sale of 60% equity to Telenor brings Rs 6,120 crore into Unitech’s kitty or more than three times its investment without a network or customer.


The deal offers Unitech a lifeline, given the over 51% value erosion of its stock recently along with a liquidity crunch in the realty sector that is battling the effects of an economic slowdown. Further Unitech has stood as guarantee for the loan syndicate taken by Unitech Wireless. This deal would infuse cash into the entity and reduce the debt of the parent real estate major.

Imposing Challenges:

Indian telecom sector has developed at a rapid pace and is already reaching saturation. Telenor may find it hard to turn profitable it a short period of time in the highly competitive telecom sector. Major challenges facing it are:

Industry Infrastructure:

Telecom industry is a Greenfield industry and the cost of setting up infrastructure runs into billion dollars. Telenor has placed itself a difficult position by committing $3 to $4 billion over the next three years to build mobile infrastructure on a pan-India basis despite market and regulatory challenges. Building pan-India mobile infrastructure is constrained by the fact that Unitech has spectrum in only 13 of its 22 circles. Uncertainty over the timing and availability of spectrum in the remaining nine circles, an insecurity that the Department of Telecommunications is not in a hurry to address are other major concerns. Active and passive infrastructure sharing is allowed in India, it would take time for a new entrant to negotiate with incumbent players and issues of network and service quality will be affected in a drastic manner.

Incumbent Players and Competition:

Telenor has invested in a company that has no infrastructure, customers, and cash flow. It has paid nearly 7 times the actual cost incurred by Unitech for an entity that has only spectrum as an asset. This is a clear case where Unitech has made a profit due to speculative pricing of spectrum.
Further Telenor is up against some of the world’s largest operators and India’s biggest business like Bharti, Vodafone, Reliance, BSNL, Tata Tele and Idea. India’s top seven mobile companies boast of subscribers in the range of 13 to 77 million. These operators are large, flush with funds, and carry huge infrastructure advantages, apart from nationwide brands. They will not be easy to beat. By the time Telenor would start operations the Indian mobile market would have crossed the 400 million subscribers mark and begin to plateau, if not decline. The only relief for it would be the introduction of Number Portability, but its highly likely that subscribers would go for existing players and not new ones. Thus subscriber acquisitions will be a challenge for Telenor.

Declining Revenue:

Telenor will face an additional challenge of declining ARPU’s or average revenue per user. Indian telecom majors would have nearly exhausted the urban markets by middle of 2009 with a new growth story emerging from rural India, which is untested. With time ARPUs would head southwards which would make business unprofitable.

Security Concerns:

Telenor has operations in Bangladesh, Pakistan, Malaysia and Thailand. Telecom being a very sensitive sector Telenor may be under the closer scrutiny of intelligence and security agencies. It may need a lot more clearances because of the nature of the environment it operates in.

For the aforesaid factors Telenor entry into the Indian mobile market, at astronomically high levels is a move that can prove fatal to the well being of Telenor.

(Tejas Adiga is a student of law at Pune)

Legally wise: July 2008

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Architecture

  • The Municipal Corporation of Delhi launched a website dedicated to the Jama Masjid precinct redevelopment plan to make the whole process transparent and informative. (ToI)

Drugs and Alcohol

  • The Cigarettes and Other Tobacco Products (Prohibition of Advertising and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 prohibits the sale of tobacco and other such products near educational institutions. However, the Maharashtra Government plans to crack down on all hookah joints in public interest. (DNA)

Education

  • The Karnataka Government found that a State Government cannot decide on what the medium of education in a private school should be. (Merinews)

Employment

  • The Delhi High Court held that an employee can be dismissed for acting beyond his authority as it amounts to breach of discipline and misconduct in a case involving Chaman Lal, an SBI Branch Manager. (Trade Matters)
  • The Armed Forces Tribunal which is to ‘adjudicate disputes and complaints of armed forces officers and personnel relating to appointments, conditions of service and punishments handed down by military courts’ is scheduled to begin functioning in August. Currently, the Supreme Court and the High Courts have the jurisdiction to hear these matters. (ThaiIndian)
  • The Supreme Court has held that unexplained and inordinate delay in the initiation of disciplinary action against a an employee is a ground for quashing the inquiry in a case involving Ranjeet Singh, clerk in the Haryana Health department. (The Hindu)
  • The High Court of Madras held that both legitimate and illegitimate children are entitled to ‘compassionate appointments’ on the death of a parent. (ToI)

Environment and Wildlife

  • The global maritime regulator, the International Maritime Organization, is working on a code for the ship recycling industry. Within the country, India has decided not to allow new ship-breaking yards to be built. (Livemint)
  • The Supreme Court has reportedly ordered amusement parks and mini zoos in India to be derecognised if they are not sanctioned by the Central Zoo, New Delhi. The report seems incomplete. (The Statesman)
  • The Bangalore Lake Development Authority has signed contracts with companies allowing them to take over the management of various like in the area. Permanent damage has been done to wildlife habitats as a result. (Tehelka)
  • A Bench of the Bombay High Court comprising Chief Justice Swatanter Kumar and Justice V M Kanade directed the State government and the municipal corporation to provide a site for dumping bio-medical waste. Rules dealing with the disposal of such waste had come into force in 1998. (ToI)
  • The Supreme Court has the power to denotify areas of wildlife sanctuaries. The Maharashtra Government wants it to use this power to limit the area of the Great Indian Bustard sanctuary in Amhadnagar and Solapur districts from the 8500 sq km proposed in 1985 to about 350 sq km. (Economic Times)

Family

  • A Muslim girl can legally get married without parental consent after attaining puberty even if she is below the age of eighteen years since Muslim personal / religious law allows her to do so held a Bench of the Delhi High Court comprising Justices Vikramjit Sen and V K Shali in the case of a girl named Afsana. Her mother Nihal had claimed that her husband had kidnapped her. (Indian Express)

Food

  • Just in case you were wondering, Pringles are not crisps. Or so a British tax court has ruled. (WSJ Law Blog)

Freedom

  • In ‘Thou Shalt Not Annoy’, Rick Garnett says that local authorities in Sydney have enacted a new, temporary set of regulations that “will allow police to arrest and fine people for ‘causing annoyance’ to World Youth Day participants.” (PrawfsBlog)
  • Justice Sikri of the Delhi High Court said that there was nothing unusual in the holding of the Gay Pride Parade (on June 29) and dismissed objections raised by anti-gay rights activists including B P Singhal of the RSS. (DNA)

Health

  • A 2007 High Court ruling held that government hopitals in Delhi provide patients suffering from haemophilia with not only timely treatment but also with Anti-Hemophilic Factor free if they fell below the poverty line, and at 50 per cent to 80 per cent if they did not. However, this ruling does not seem to have been followed. (CNN IBN)

Inflation

  • Why is it not surprising that Karsten Ottenberg, Giesecke & Devrient, the firm which hellped create hyper inflation in the Weimar Republic in the 1920s is now doing the same in Zimbabwe. (The Big Picture through WSJ)

Intellectual Property

  • Suggesting that Tropical Law could be defined as “the branch of law that deals with clear legal provisions which are rarely, never, or sporadically employed, and other unusual legal problems that occur most often but not uniquely in tropical regions,” Richard N. Brown says that he is not aware of any Venezuelan court which has upheld a Venezuelan patent even though the country’s patent law is over 165 years old. (IP Tango)
  • Manisha Nair mentions the jurisdictional issues the Supreme Court dealt with in the case of Laxman Prasad v. Prodigy Electronics Ltd. & Anr. [2008 (37) PTC 209 (SC)]. (Lex Orbis)
  • The Delhi High Court passed an in Dabur India and Shree Baidyanath Ayurved Bhawan can use the words ‘sugar free’ in relation to their products. Cadila which produces the sugar substitute ‘Sugar Free’ had tried to stop them from doing so. (Business Standard)

Judiciary and Lawyers

  • Puja Trivedi describes the evolution and current status of the eJudiciary in India (Indian Express)
  • When Calcutta’s oldest lawyer, Peston Pedamji Jinwala, died at the age of 89, he asked that a holiday not be declared to mourn his death. In doing so, he may have broken a tradition in the Calcutta High Court which has more holidays than any other High Court. (Khaleej Times)
  • An impromptu lawyers’ strike led to a man who works as a labourer arguing a case in the Madras High Court himself on behalf of his daughter. Their lawyer had told just just a short while before the hearing that he couldn’t argue on their behalf. (The Hindu)

Riots

The Realm of the Bizarre

  • Not sure what death by misadventure is? One example is accidentally killing oneself by drinking too much water, as Andrew Thornton, 44, did. (Daily Mail)

Legally wise: June 2008

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Books

  • P R Dubhashi writes about farmers’ suicides in India and what caused them. (Mainstream)

Consent

  • Typically informed consent involves five elements: a description of the illness, a description of the treatment, risks of the treatment, alternatives to the treatment and the risks of not having any treatment. (BrainBlogger)

Corporate Law

  • The Election and Other Related Laws (Amendment) Act, 2003 attempted to make corporate donations to political parties transparent. (BusinessLine)
  • In Southern Steel Ltd vs Jindal Vijayanagar Steel Ltd., the Supreme Court held that a sick company which makes huge orders and issues cheques to the seller with no real intention of paying must can be held liable under Section 138 of the Negotiable Instruments Act. (Business Standard)

Criminal Law

  • While the US Supreme Court has just rejected the death penalty for a child rapist, the first case in which capital punishment has been awarded in India in 2008 involves child rape. Justices A P Lavande and Arun Chaudhari of the Nagpur bench of Bombay High Court upheld the death sentence awarded to Shankar Khade, 55, for the kidnap, rape, sodomy and strangulation of a 10-year-old mentally retarded girl in November 2007. (Times of India)
  • “New York has a rape shield law, meaning that irrelevant evidence of a rape victim’s sexual history or “reputation for promiscuity” cannot be introduced into evidence. However, in NY, evidence of a victim’s conviction for prostitution within the past three years can be introduced,” says Jill. (Feministe)

Education

  • The Calcutta High Court has directed the West Bengal Council for Higher Secondary Education to show the mathematics answer script of a girl who twice failed in the subject but obtained a rank of 982 in the All India Engineering Entrance Examination. (The Telegraph)

Employment

  • The Bombay High Court did not grant relief to Raghunath Kottarry, a deputy engineer with BEST, who had quit his job to contest in elections and wanted his job back after losing. (MyNews)
  • A bench of the Supreme Court comprising Justices Aftab Alam and G S Singhvi issued notices to the central government and the defence ministry in a case which challenges the sacking of personnel who are HIV positive without the mandatory approval of the army’s medical board. (NDTV)
  • Background checks on employees are difficult to conduct with no centralised database and the ease with which fake documents can be verified. The ‘Private Detective Agencies (Regulation) Bill, 2007′ has been drafted and the process might become more regulated if and when the bill is enacted. (Business Standard)

Environment

  • The Coastal Management Zone Notification issued by the government is expected to come into force by 2011. There as been a good deal of controversy surrounding it with industry claiming that it overlooks development while focussing on environmental protection (FreshNews) and the National Fishworkers Forum (NFF) complaining that “it will not only adversely impact the fragile ecological system and marine life but also take away the means of livelihood from India’s 10-million fishing community”. (ToI)
  • Almost a decade after the Supreme Court ruling on the subject, in what is believed to be a first in the country, Agra district authorities forming a five-member River Police Squad to keep an eye on polluters of the Yamuna. (ToI)
  • In what is being seen as a precedent the Supreme Court refused to approve a major irrigation project bordering the Tadoba-Andhari tiger park in Maharashtra on environmental grounds in a case filed by the Bombay Natural History Society (BNHS). (Livemint)

Food

  • The government the Ministry of Agriculture to bring amendments in the Seeds Bill, 2004 to regulate the quality of seeds and increase private participation in the production of major input. (The Hindu)
  • Pointing out that the USA has opposed the Government of India’s condition that imported GM foods must be declared to be such and labelled accordingly by the exporter, S G Vombatkere gives the background of the case filed by the Maharashtra Hybrid Seeds Corporation (also known as the MAHYCO) in the Delhi High Court which has been dubbed as a conflict between commercial interests and public health. (MainStreamWeekly)

History

  • Jinnah’s will and the ownership of Jinnah House disputed (Daily News); Dina Wadia, Jinnah’s daughter, would rather have the house called ‘South Court’ (Times of India)

Human Rights

  • The Haryana Police in the news for all the wrong reasons: custodial torture, rape etc. (BombayNews)
  • Discrimination against Dalits in India continues despite the existence of a number of reports and resolutions including a resolution [on the human rights situation of Dalits in India P6_TA-PROV(2007)0016)] passed by the European Parliament on February 1, 2007 which found India’s efforts to enforce laws protecting Dalits to be “grossly inadequate” and added that “atrocities, untouchability, illiteracy, [and] inequality of opportunity, continue to blight the lives of India’s Dalits.” (Aditya Swarup)

Intellectual Property

  • Brazil does not want India to grant a patent to the HIV drug Tenofovir because adversely affect the import of low-cost generic medicines from India. (Hindu)
  • With reference to a disputes between the Tatas and Bisleri in the Delhi High Court over the use of the word ‘Himalaya’ to market mineral water, Bisleri said the word is a generic name and cannot be used as a registered trademark. (The Economic Times)
  • Manpreet Kaur discusses the patentability of micro-organisms (IndLaw)
  • M J Antony looks at what little case law there is in India with reference to designs : the Supreme Court decision in the case of Bharat Glass Tubes Ltd v. Gopal Glass Works Ltd. where the rights of Gopal Glass which had registered a design for glass sheets were upheld, as well as High Court decisions in the cases of Marico Ltd. v. Raj Oil, Domestic Appliances v. Globe Super Parts, Wimco Ltd v. Meena Match Industries, and Gammeter v. Controller in which the Calcutta High Court which interpreted the meaning of a ‘new and original’ design. (Business Standard)
  • In Boston Duck Tours LP v. Super Duck Tours LLC, —F.3d—, 2008 WL 2444480 (1st Cir. June 18, 2008), the company’s own website provided evidence of the claimed trademark being generic. (Evan Brown)
  • Latha Nair discusses the GI controversy surrounding Pashmina (Spicy IP)
  • The Champagne Region may be watering down its brand (Michael Atkins)

Legislation

  • “Judicial Impact Assessment (JIA) is a process whereby the government can anticipate the likely cost of implementing a legislation through the courts and help deliver timely justice to litigants,” says N R Madhava Menon. This is done primarily by estimating the ‘judicial workload resulting from new legislations and determining the additional costs involved in Judge-time and support services’. (The Hindu)

Society

  • Speaking of a litigious society, Raymond says, “Without the developed and reliable ability to file individual lawsuits, as citizens, we would be powerless to effect positive societal change beyond begging and lobbying our own governmental representatives to legislate the law in our favor. Living in a litigious society is actually empowering for the lowly individual.” (Money Blue Book)

Transparency

  • Naresh Behl, a New Delhi resident, filed an RTI application on April 24, 2007 with the Income Tax department against his father-in-law, Tilak Raj Satija to find out if the latter could pay for his wedding expenses. He was told that the Right to Information Act is not meant to settle personal scores or initiate tax-evasion inquiries. (Indian Express)
  • What the Bar Council of India is doing about corruption in court, uncle judges and the need for more transparency in the judiciary. (The Hindustan Times)

The Realm of the Bizarre

  • New York’s Court of Appeals upheld the dismissal of claims brought by a woman who had sued her rabbi for abusing his position by allegedly persuading her to have sex with him to help her find a husband. (Law.com)
  • Ex-Girlfriend Kidnapped by Italian Man: Made to do Dishes, Iron Clothes (AdelaideNow)

The Right to Die

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Quoting an English writer, a Report of the Law Commission says: “It seems a monstrous procedure to inflict further suffering on even a single individual who has already found life so unbearable, his chances of happiness so slender, that he has been willing to face pain and death in order to cease living. That those for whom life is altogether bitter should be subjected to further bitterness and degradation seems perverse legislation.”

In this Report, the Commission has argued for the deletion of Section 309 of the Indian Penal Code which says:

Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for term which may extend to one year or with fine, or with both.

In addition to this, the Penal Code contains the following provisions which deal with the abetment of suicide.

Section 305: If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine.

Section 306. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Over the years, there has been a good deal of controversy surrounding these provisions of the law.

In P Rathinam v. Union of India (1994 3 SCC 394), the Supreme Court held that Section 309 violated of Articles 14, 21 which deal with the fundamental right of equality and the right to life and liberty enshrined in the Constitution. However, two years later, in Gian Kaur v. State of Punjab (1996 2 SCC 148) it overruled its decision in P Rathinam saying that the Right to Life does not include the Right to Die.

In the Gian Kaur case, the in-laws of a woman who had committed suicide because of being harassed, inter alia, claimed that they could not be guilty of abetting her suicide since the act of committing suicide was itself not an offence. In a unanimous decision, the Supreme Court overturned the decision given in the P Rathinam case. It held that any aspect of life which makes it dignified may be read into Article 21 of the Constitution but no right that extinguishes life is contemplated by the Article. Suicide was therefore declared to be incompatible and inconsistent with the Right to Life as it is understood under the Constitution. (Ref.: Indian Women: A Socio-Legal Perspective by Saikia, N)

In addition to suicide, there are other situations in which the question of whether the right to die exists has been debated. These situations include those where doctors are asked to be involved in assisted suicides or to perform mercy killings.

There are some circumstances where a doctor’s involvement would not be questioned. For example, a doctor would not normally be held liable for discontinuing life support for a brain dead patient on the request of his family. However, S Balakrishnan argues that the refusal of any modality of treatment including life support is not an act of suicide or an attempt at suicide.

Nonetheless, the fact remains that the law on the subject of euthanasia and assisted suicide is unclear. The Law Commission has begun to study the issue of limiting life support to patients in intensive care units.