Category Archives: News

Absurd Reason for Rape Acquittal

Posted on by
1

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

Posted on by
Reply

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

Posted on by
Reply

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.

Legally wise: September 2008

Posted on by
Reply

Is India’s commercial legal market on the verge of opening up?  (Timesonline UK)

With support from several sides for a more liberal regime in the legal services market and with abundant opportunities for transactional work, are India’s Bar Association members finally seeing the brighter side of things? Or will the country’s legal market continue to incur a high opportunity cost? There is hope that a long-awaited judgement of the Mumbai High Court will result in the opening up of the market.

Interpreting the SET Satellite ruling – AZB & Partners (Livemint)

An excellent article for all you tax buffs on the likely impact of the Morgan Stanley and SET Satellite judgments on principles of transfer pricing.

Law on adverse possession antiquated says the Supreme Court (The Hindu)

The Supreme Court has expressed its disappointment over the antiquated law of adverse possession whereby an owner of property can be ousted of his title simply because of inaction on his part within a stipulated time. Calling the right to property a “human right”, the court disallowed a squatter from gaining title to the land despite the existing law of adverse possession.

No alimony if wife sufficiently well-off (DNA)

The Delhi High Court has ruled that a woman earning an amount of money that is sufficient to maintain her living standards is not entitled to maintenance from her estranged husband.

SC hands over Ghaziabad GPF scam case to the CBI (Tribuneindia)

In a shocking case involving allegations of judicial corruption, the SC has acted swiftly by calling for a CBI probe into the delivery of Rs.15 lakhs at a judges doorstep.

Vacant seats not to be carried forward says SC (Indianexpress)

The Supreme Court has clarified its position on the issue of “carrying forward” of unfilled OBC quota seats (in central education institutions) to the subsequent year by ruling that the seats must go to candidates from the General Category in the present year itself.

Non-bailable warrant issued against Raj Thackeray (DNA)

In a Jamshedpur court of 1st class judicial magistrate A K Tiwari, a warrant has been issued against Raj Thackeray directing him to appear before the court on November 17 on account of allegations of his having made derogatory remarks against Bihari’s. A copy of the arrest warrant has been issued to the Mumbai Police Commissioner for its execution.

BMW 2: Bhasin in judicial custody (Headlinesindia)

With his bail plea rejected by the Delhi High Court, Utsav Bhasin – who allegedly rammed his BMW into a motorcyclist thereby killing one person – will remain in judicial custody and is to be produced before court on October 10.

Proposal to make current law for determining a child’s scheduled caste status “gender neutral” (DNA)

Currently, in order to determine the status of a child as scheduled caste, only the father’s community status is relevant, with the mother’s status having no bearing. A proposal by the Ministry of Social Justice and Empowerment seeks to make the mother’s status an equally relevant factor during such determination.

Leprosy patients cannot contest a civic election or hold municipal office in Orissa:  (BBC)

The Orissa high Court had earlier upheld the disqualification of two elected councillors to a civic body as per the Orissa Municipal Act of 1950. The Supreme Court, to the shock of many, has upheld the ruling finding no invalidity or illegality.

MF Hussain: “Dignity of contemporary art” upheld (BBC)

Artist and painter MF Hussain has found vindication through a Supreme Court verdict that upholds a lower court ruling that dropped charges in three legal proceedings against him. The painter, who has faced criticism for his depiction of newd goddesses in paintings and other artistic work, was cleared of obscenity charges.

Hari Puttar gets the nod (Economic Times)

Warner Brother’s allegation that the film-makers of “Hari Puttar” sought to confuse movie-goers and take unfair advantage of the Harry Potter brand was not accepted by the Delhi High Court.

Scrabulously fabulous – Going strong with Wordscraper and Lexulous in light of the Delhi HC judgement (The Inquirer)

The Delhi High Court has disallowed the use of the word Scrabulous or any Scrabble like name but has held Scrabble to be “incapable of copyright protection”. The internet version of Scrabble (which is extremely popular on Facebook) now goes under the name Wordscraper.

Legal innovation (times online)

 How arbitration law has enabled Sharia courts to deliver valid rulings in Britain.

National Law School in Delhi (Timesofindia) 

With a government grant of Rs. 110 crore for a law school, a judicial academy and a national centre for mediation on a 13 acre plot of land, NLS Delhi looks all set to make a flourishing start.

Smokers beware (Expressindia)

With the Supreme Court refusing to stay the government notification of a ban on public smoking beginning October 2nd, cigarette manufacturers and active smokers won’t be able to light-up as and when it pleases them.

Condom ads obscene? (Outlook)

The Supreme Court has stayed a Madras High Court order which prohibited the marketing of condoms with explicit visuals on wrappers or in advertisements and which also directed condom manufacturers to seek prior permission from the Advertising Standards Council of India (ASCI).

Hindu seeks open-air cremation in Britain: judgement awaited (Guardian)

In 2006, Rajpal Mehat was cremated on a wooden pyre in a secluded location in Northumberland: the Newcastle city council deemed this as an illegal act. Come 2008 and another Hindu has challenged the council’s decision to disallow an open-air cremation for him. A high court verdict is awaited on the matter.

India and Inflation

Posted on by
Reply

Inflation in Hungary, 1946With the price of virtually everything having gone up, there’s little to be said about the impact of inflation in recent times on the general Indian public that isn’t readily visible.

Inflation in India touched a thirteen-year high of 11.42 per cent in the week which ended on June 14. A far cry from the 4 percent it was at in January 2008.

The issue, as the IMF had recognised in April itself, is a ‘politically hot issue’ with General Elections being scheduled to take place early next year. If not anything else, this isn’t an ideal time for the Government to be forced to deal with popular discontent because of rising prices not just because of the direct effects of inflation but also because of the actions its been forced to take to deal with complementary problems including the rise in fuel prices.

Some of the Government’s measures such as reducing fuel subsidies almost across the board have had a direct adverse impact on individual consumers and have done nothing to create the frame of mind which the Government would presumably like to see in voters.

Individuals are not the only ones to have been affected though. The performance of nearly 38 per cent of Indian companies has deteriorated over the last six months and, for many of them, things are predicted to get quite a bit worse before they get any better.

One of the underlying problems has been the phenomenal global increase in oil prices. No one seems to be entirely certain what caused the increase and there has been little agreement on how it should be dealt with. Even leaving aside the fact that petroleum and other similar products are used to synthesize thousands of modern materials right from plastic to chewing gum, the increase has caused the cost of transporting goods to go up significantly, and consumers have had to bear the brunt of the increase. Although, in the long term, the solution is to decrease dependence on oil, short term solutions which have been suggested involve the grant of tax breaks.

Moving back to India, whether or not imported inflation is influencing the rise in domestic prices, what has become increasingly clear is that India needs to create its own comprehensive policy on how to deal with the issue.

The Raghuram Rajan Committee suggested that the Reserve Bank of India focus on controlling inflation. In Europe, the European Central Bank tried to do this by not slashing interest rates to revive growth. Some experts have, however, warned that this may not work in India considering that inflation (which, for example, in India generally rises after every draught) could well be dependent on far more than the country’s monetary policy alone.

On its part, the Government has banned the export of a number of products including non-basmati rice, pulses, edible oil and cement. However, it has refused the recalibrate the rupee in the interest of maintaining a transparent foreign exchange regime.

Only time will tell if the measures the Government has taken will help ensure that the economy doesn’t sink into a depression. What is almost certain though is that its measures will do little to stimulate any form of growth or help to immediately ease the burden which has been placed on individuals.

Selected References:

Wombs for Rent

Posted on by
Reply

On June 25, 2008, the Ministry of Women and Child Development held round table conferences on surrogacy and on building partnerships with men to promote women’s welfare and development.

The issue of renting wombs has been widely discussed abroad whether it’s CNN saying that giving birth has become the latest job to be outsourced to India or the NYT pointing out that while couples from foreign countries pay about $30,000 to clinics, the surrogate gets only about $7,500 out of that amount. (Like everything else which is outsourced to India, it’s quite a bit cheaper to use an Indian surrogate than an American one.)

And it seems quite a bit easier to exploit Indian women: one woman from the US using a surrogate said that Indian surrogate stays at a clinic or supervised home where she can be effectively policed unlike an American surrogate over whom no such control can be exercised. All that would exist if the surrogate were American would be a third party mediator to try to iron out problems.

Also, in the US, the surrogate would have legal rights to the child till she signed parental rights over to the biological parents. Presumably, that isn’t a problem which arises in India since the women who seem to act as surrogates are extremely poor and agree to the arrangement simply to take care of their own families.

There exist ‘National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India’ but they are not legally binding. An Assisted Reproductive Technology (Regulation) Bill, 2008 has also been drafted although it is unlikely to be enacted at any point in the near future. The bill says the child’s birth certificate shall bear the names of his or her genetic parents, that a woman cannot be a surrogate more than three times and that she must be both between the age of 21 and 45 years and disease-free.

Addendum:

It isn’t as if all’s well in other countries though.
The American Bar Association drafted a Model Act Governing Assisted Reproductive Technology. So far so good.
 
It considers ART being used in three circumstances:
Where the surrogate carries an embryo developed from:
(1) the intended parents’ eggs and sperm; or
(2) the intended parents’ eggs or sperm; or
(3) eggs and sperm not from the intended parents.
 
The Model Act suggests that the prospective parents be interviewed before they avail of the technology in the way adoptive parents would be interviewed so that children’s interests are protected. And while one thinks that there couldn’t be anything wrong with that, just one thing makes the picture a little less rosy than it could be — only prospective parents who do not donate either eggs or sperm would be interviewed.
 
One cannot help but wonder if this is the manifestation of a belief that children who are not “of one’s own blood” are loved less than children who carry one’s own genetic material despite the fact that there exist many parents and adopted children who completely negate this idea. Just as there exist parents and children who are living proof of the fact that some biological parents do not even marginally resemble loving parents.

GoogleMail not Gmail

Posted on by
Reply

One of the consequences of a trademark dispute in Germany between Google and businessman Daniel Giersch is that Google can no longer call its eMail service Gmail.

A plain text message, which reportedly started popping up when users tried to access Gmail from Germany, read, “We can’t provide service under the Gmail name in Germany; we’re called Google Mail here instead. If you’re traveling in Germany, you can access your mail at http://mail.google.com. Oh, and we’d like to link the URL above, but we’re not allowed to do that either. Bummer.”