editorial advisory boardsupreme court in a. k. gopalan 5case: “man, as a rational being, desires...

EDITORIAL ADVISORY BOARD

CHAIRMAN

Hon'ble Dr. Justice B.S. Chauhan

Chairman, Law Commission of India

Former Judge, Supreme Court of India

MEMBERS

Hon'ble Justice P.S. Narayana, Member, Mahadayi Water Disputes Tribunal

Prof. Mizanoor Rahman, Chairman, National Human Rights Commission, Bangladesh

Prof. H.J.F. Silva, Vice president, CLEA/Professor of Law, United Kingdom

Mr. R. Venkataramani, Senior Advocate, Supreme Court of India

Prof. (Dr.) A. Lakshminath, Vice Chancellor, CNLU, Patna

Prof. (Dr.) R. Venkata Rao, Vice Chancellor, NLSIU, Bangalore

Prof. (Dr.) P.S. Jaswal, Vice Chancellor, RGNUL, Patiala

Prof. (Dr.) Iswara Bhat, Vice Chancellor, NUJS, Kolkata

Prof. (Dr.) B. C. Nirmal, Vice Chancellor, NUSRL, Ranchi

EDITORIAL COMMITTEE

CHAIRMAN

Prof. (Dr.) S. Sivakumar, Member, Law Commission of India

Hony. Chairman, Academic Advisory Board, Lloyd Law College, Greater Noida

MEMBERS

Prof. (Dr.) Tara Prasad Sapkota, Dean, Faculty of Law,

Tribhuvan University, Nepal

Prof (Dr.) Wadir Sa, Dean, Kabul University, Afghanistan

Prof. (Dr.) Manjula Batra, Former Dean, Faculty of Law,

Jamia Millia Islamia, New Delhi

Prof. (Dr.) Satish Chandra Shastri, Dean, College of Law & Governance, Mody University Rajasthan

Prof. (Dr.) D.K. Sharma, Dean, Department of Law, Banaras Hindu University, Uttar Pradesh

Prof. (Dr.) R.K. Chaubey, Dean , Department of Law,

Allahabad University, Uttar Pradesh

Dr. Manish Arora, Director, Universal Law Publishing Co., New Delhi

Prof. (Dr.) Kameswari Gowda, Prof., Lloyd Law College, Greater Noida

Dr. Md. Salim, Director, Lloyd Law College, Greater Noida

LEXIGENTIA

MANAGING EDITORMr. Manohar Thairani

President, Lloyd Law College, Greater Noida

EDITORDr. Lisa P Lukose

Associate Professor, University School of Law & Legal Studies,

Guru Gobind Singh Indraprastha University

CO- EDITORMr. Akhilesh Kumar Khan

Head of Department (B.A., LL.B- 5 years) Lloyd Law College,

Greater Noida

ASSOCIATE EDITORAnjali Prabhakaran

Assistant Professor, Lloyd Law College, Greater Noida

ASSISTANT EDITORSDr. Vikram Singh Jaswal


Meera Mathew


INFORMATION AND DISCLAIMER

“Lexigentia”- Law Review of Lloyd Law College is an annual,

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The editors, publishers and printers do not own any responsibility for the

views expressed by the contributors and for the errors, if any, in the

information contained in the Journal and the author(s) shall be solely

responsible for the same.

Contents

1. Freedom of Speech and Expression Justice B. S.Chauhan 1

2. Is Expression Free? A. Lakshminath 10

3. Fair Use for Educational Purpose : S. Sivakumar 39

An Analysis Lisa P. Lukose

4. Liability of the Vehicle Insurance Rajesh Kumar 48

in the Class of Fake and Inappropriate

Driving Licenses

5. Decriminalization of Attempt to Suicide : Rituraj Sinha 65

A Move from Retaliation Sonali Roy Choudhary

to Rehabilitation

6. Does Privatization Serve the Public Prakash Sharma 80

Interest? An Assessment of the

Risks and Benet of Prison Privatization

7. Press Clause and Speech Clause Meera Mathew 98

Constitutional Interpretation in India

and America : Comparative Analysis

8. Law of Sedition : History and Practice N. Jayalakshmi 111

9. Good Governance and its Challenges Sougata Talukdar 130

in India : An Overview

10. Corporatization of Agriculture and Tejendra Meena 154

Its Effect

11. The Trend of Media Trial in India: Vaishali Arora 174

Its Contours and Juxtaposition

With the Norms of Journalistic

Ethics and Self-Regulation

1

FREEDOM OF SPEECH AND EXPRESSION

*Justice B S Chauhan

Abstract

The freedom of speech and expression is the rst and foremost human right to make the life

meaningful. This right is enshrined in all international legal instruments on human right.

This right undoubtedly is the cornerstone of democracy which enables the citizen to take part

in democratic process. Free ow of information cannot be guaranteed without protecting and

enforcing freedom of speech and expression. This article aims to discuss the limitations and

reasonable restrictions the state can impose on the freedom of speech and expression and the

logic behind such reasonable restrictions.

I Introduction

The freedom of speech and expression is regarded as the rst condition of 1

liberty. It occupies a preferred and important position in the hierarchy of

the liberty, it is truly said about the freedom of speech that it is the mother

of all other liberties. Freedom of speech and expression means the right to

express one’s own convictions and opinions freely by words of mouth, 2

writing, printing, pictures or any other mode. It thus includes the

expression of one’s ideas through any communicable medium or visible

representation, such as, gesture, sign and the like. In modern time it is

widely accepted that the right to freedom of speech is the essence of free

society and it must be safeguarded at all time.

II Essence of right o freedom of speech

There are three notions which are essential in appreciating the essence of

right o freedom of speech:

i. Discussion,

ii. Advocacy, and

iii. Incitement.

* Chairman, Law Commission of India.1 Subhramanyam Swami v. Union of India, W.P. (Crl) 184 of 2014.2 John Milton, “Freedom of Speech and Expression India v America - A study” 2007 India L. J.

Freedom of Speech and Expression

2 LEXIGENTIA-INTERNATIONAL LAW JOURNAL OF LLOYD LAW COLLEGE

Indisputably, any plain discussion or even advocacy of a specic matter

attracts protection article 19(1) (a) of Indian Constitution. It is just while

such discussion or advocacy arrives at the point of incitement that article

19(2) inevitably comes into question. The advocacy is protected from

regulation unless it takes the form of incitement. For illustration,

advocacy can have various forms and it can range from the modest to the

bullying, and the manner at which the advocacy is designed can similarly

array from the permissible or harmless to the inacceptable or forbidden

one. For this, it is very vital that a speaker or communicator to have a

clear-cut perception of what is right and what is wrong, what is nationalist

and what is anti-national; what connotes the offending to state. Though

there are various theories on speech exist, the modern theories justifying

the freedom of speech are dominated by a utilitarian vision: speech is

protected because it is necessary to achieve some greater, often ultimate,

social good. This leads to the philosophy of necessity in maintaining and

preserving freedom of speech and expression in tune with prevailing

social order.

J Frankfurter observes’: “Not every type of speech occupies the same position on the

scale of values. There is no substantial public interest in permitting certain kinds of

utterances ....” Here comes the relevance of regulating the speech. Even our much learned

Constitution drafting committee members also realised that no freedom can be absolute or

completely unrestricted. It is undeniable that freedom is like oxygen. In the unforgettable

words of Charles Bradlaugh “Better a thousand fold abuse of free speech than denial of free

speech. The abuse dies in a day but the denial slays the life of the people and entombs the 3hopes of the race.”

“Ley dey key apney paas faqat ik nazar to hai

Kyon dekhen zindagee ko kisee kee nazar sey hum.”

- Sahir Ludhiyanvi

(I have nothing but only a vision of my own, why to view life with

someone else’s vision).

3Jewish Supremacism, Freedom of Speech and My Book Jewish Supremacism, available at http://davidduke.com/freedom-of-speech/

3

In a constitutional democracy, a highly sensitive law which encroaches

upon the citizen’s rst freedom - the freedom of speech and expression-

must be in accordance with the basic spirit of the Constitution

guaranteeing such right. Freedom of speech and expression given under

article 19 of the Indian Constitution is often considered as primary right

which is not only fundamental but takes precedence over other rights.

The Supreme Court has always relied upon the relationship between free 4speech and the promotion of democracy. In Rangarajan, the court held

that democratic form of government itself demands (from) its citizens:

- An active and intelligent participation

- Public discussion with people’s participation is a basic feature

- And rational process of democracy which distinguishes it from all

other form of government.

III Reasonableness

For the criterion for test of reasonableness is whether the law strikes

proper balance between social control and the rights of the individual.

The following aspects are taken into account:

1. Nature of the right infringed;

2. Evil sought to be remedied by the law, its extent and urgency;

3. Whether restrictions are proportionate to the evil; and prevailing

conditions at the time.

However, under article 19(2), reasonable restrictions are provided. The

Supreme Court have justied the restrictions on free speech imposed by

article 19 (2) on utilitarian grounds: some restrictions on freedom may be

necessary so that others may also enjoy their liberties. As noted by the 5

Supreme Court in A. K. Gopalan case:

“Man, as a rational being, desires to do many things, but in civil society

his desires have to be controlled, regulated and reconciled with the

4 S Rangarajan v. P Jagjivan Ram, 1989 SCC (2) 574 which laid down that while there has to be a balance between free speech and restrictions for special interest, the two cannot be balanced as though they were of equal weight and Romesh Thappar v. State of Madras, 1950 AIR 124. 5AIR 1950 SC 27.



exercise of similar desires by other individuals… Liberty has, therefore,

to be limited in order to be effectively possessed”.

6In the famous article titled “Dignity and the Visibility of Hate”, the

author, Jeremy Waldron explained how and why restrictions to speech

further the legitimate public interest in maintaining a “well-ordered

society. He categorically says:

“When people call for the sort of assurance to which hate speech laws

might make a contribution, it is not on the controversial details of justice.

Instead, it is on some of the most elementary fundamentals—that all are

equally human and have the dignity of humanity, that all have an

elementary entitlement to justice, and that all deserve protection from the

most egregious forms of violence, exclusion, and subordination”..

IV The law of sedition

The law of sedition was made so as to protect the state from those who

excite disaffection towards, the Government established by law and also 7

includes disloyalty and all feelings of enmity. The state is empowered to

punish those who jeopardize the safety and stability of the State, or

disseminate such feelings of disloyalty as have the tendency to lead to the

disruption of the State or to public disorder. Also, any element that has

tendency to disturb the tranquility of the State and lead ignorant persons

to endeavour to subvert the Government and laws of the country need to

be taken action against. The objects of sedition generally are to induce

discontent and insurrection (revolt, rebellion).

However, to call an act seditious it is important to note that it is an

intentional act that causes class hatred. Hatred implies an ill-will, hatred

and contempt are the state of mind in relation to the object. Also, when the

debates or discussion crosses the limits of fair and honest criticism

against the government may be considered as Seditious. There must be a

direct and immediate object of incitement to violence and even the mere

talk of armed revolution in Russia or even in India in theoretical terms

62010, Harv. L. Rev.7 Indian Penal Code 1860, section 124 A.

5

and the verbal demand for a national government and a national army to

resist, say, Japanese aggression, is anything but an incitement to violence.

Hence, when an act of speech has a reasonable chance of catalyzing or

amplifying violence by one group against another, given the

circumstances in which it was made or disseminated, such are not

legitimate one, but is dangerous speech. Under the common law system,

such speech had been treated as a ‘sui generis’ that is, ‘outside the realm

of protected discourse’. It can be observed that violent acts of hate are

generally preceded by hate speech that is expressed publicly and

repeatedly for years, be it by politicians, journalists, so-called activists, or

even the state. Many assassinations, terrorism, genocide, ethnic

cleansing have had happened in many places due to this provocation. We

have witnessed the dangers of racial invective and defamatory hate

speech as experienced in places ranging from Western Europe to the

former Yugoslavia, in Eastern Europe, and down to Rwanda. The efforts

to proscribe and punish speech, although taken to promote the dignity

and self-worth of every individual and protect against the evils hate

speech triggers, ultimately fail to attain the requisite level of legality on 8an international level.

Indisputably, offensive speech has real and devastating effects on

peoples’ lives and risks their health and safety. It’s harmful and divisive

for communities and hampers social progress in ghting discrimination.

Left unchecked, hate speech can lead to war and genocide.

Speech can harm directly or indirectly, or both. It may directly offend,

denigrate, humiliate or frighten the people it purports to describe – such

as when a racist shouts at a person of colour. Speech can also bring about

harm indirectly – and with equal or even greater brutality – by motivating

others to think and act against members of the group in question.

Although the right to free speech is a fundamental value, it should not be

allowed to outweigh the basic human rights of other people, especially

their right to life.

8 See, David Bauman,Hate Speech and Human Rights , avai lable at http://today.uconn.edu/2014/07/hate-speech-and-human-rights/



As legal and judicial reforms advance in many countries, it is clear that

there is a parallel need for attention towards Indian legal aspect. The

American Constitution though forbids apparent restrictions on speech,

there are various doctrines that are practised to avert hate speech. The 9 10

doctrines such as- “reasonable listeners test,” “present danger test,” 11 12“ghting words” are just examples. The chilling effect concept had

been recognized most frequently and articulated most clearly in

decisions chiey concerned with the procedural aspects of free speech

adjudication.

Currently, with the onset of internet, smart phones and advanced digital

media the mass communication’s availability has become so unrestricted

and largely unedited scale. Any distasteful, disagreeable, and even

violent or dangerous posts are published just as easily as their more

stimulating and likeable counterparts. It is undeniable and inevitable that

not all of that speech and expression will be pleasant or tolerable to all

who view it, but it is a long-standing tenet of democracy that even

distasteful views and opinions deserve a measure of protection.

Many foreign courts also have made a similar point in an opinion

upholding a restriction on hate propaganda. However, it does not mean

that the government cannot be criticized when the decisions taken by it

are wrong and arbitrary. With our democratic set up, every institution

including government has to be held accountable for its laws and

policies. And this can be done only by the citizens of the country who

have the right to express their assent or displeasure over an issue. By

imposing regulations and reasonable restrictions, it does not mean that

state is creating an environment where the dissenting opinion is heard and

9 Whether or not a reasonable recipient of the statement would believe it constituted a true threat.10 whether the words are used in such circumstances as to create a clear and present danger.11 As rstly established by US Court In Chaplinsky v. New Hampshire. This doctrine is another limitation to freedom of speech (1942). 12 This doctrine denotes a situation where a speech or conduct is suppressed by fear of penalization at the interests of an individual or group.

7

respected; the government today is annihilating the masses from

expressing their views.

It has been seen that the youth in India keep appreciating the American

jurisprudence on freedom of speech for its so-called liberal

interpretation. One can notice the changing paradigm of legislative and

judicial opinions after 9/11 attacks. It had been severely exacerbated the

then prevailed notions of personal liberty and freedom. Surveillance and

Supervision had crept in to weed out the greatest threats to civil liberties.

Hence one nation cannot simply follow the libertarian tradition today.

Nation, sovereignty, the very subsistence of state etc. are to be valued

rst.

Now the policies of government and the state for the very subsistence of

its nature cannot be devalued for private person’s liberty and freedom.

The state comes rst and then only people. Let us analyze this with a

hypothetical example especially for those who glorify the European and

American liberty. A tourist tries to check into any hotel. He must show

his passport or required identity card, and personal data goes directly to

the national police or internal security service for whatever checks on

him they want to make. Hence, every nation has its own internal security

policies and regulations. There is no point in holding a suspicion about

everything- be it on government, be it on fellow human beings, or even on

any institutions. With such a mistrust and doubt, nothing can be worked

out. A patient trusts the doctor and takes the medicine, a client trusts the

advocate and gives his case, a student trusts the teacher on what he or she

teaches, then why governed population lacks such a trust on government?

Further, we have undoubtedly a vigorous and active judiciary that keep

watching and examining such situations. We also have an active press

and media to report such matters. In the intimidation of having a possible

mishandling, a proposed law that is need for the time cannot be

disregarded.

V Conclusion

Much to the concern of despots everywhere, nonetheless, is that today’s



Internet is sprouting – at least literally – to everyone having access to their

own shortwave-like potential to be able to talk to anybody anywhere in

the world. With the social media - tweets and posts are creating biggest

threats. They are becoming more complicated to handle than other means

of propagation like newspapers, broadcasting, telecasting etc. Millions

and millions of people are accessing social media at a time. Imagine the

volume of information and data they write and post that can be a mere

opinion or view or comment but can also be an inciting comment. The

legal system cannot leave such chance of any of its citizen posting any

malicious messages and transmitting it across which others keep sharing

and circulating. The interesting aspect on this is as to how government

could restrict this mode of speech! And this sort of restriction should not

be like the misuse we had seen earlier on section 66A of Information 13Technology Act. Secondly, how to determine the impact upon the reader

since the psychological question relating to the reaction of the reader

arises through desktop or laptop or smart phones.

For example, we have seen the exodus of poor North East students after

such threatening posts; we have seen many riots taken place due to such

obnoxious and abhorrent messages being circulated. In other countries,

there are proper legal proviso to proscribe similar situations. They have

ltering process via content regulation. Some countries even adopted the

extreme regulations. For instance, in China, government regulate internet 14

through censoring some information and websites.

Now in Bolivia a Bill is pending that seeks to ban anonymity online;

punish collecting and processing personal information without consent

and so on, hence government specically proposed a new department to

be created so as to monitor social networking sites. Similarly, in most

other parts of the world – democratic or not – the communications

infrastructures are mostly government owned or operated there is content

13 This section has been struck down in Shreya Singhal v. Union of India, AIR 2015 SC 1523.14 Beina XU, Media Censorship in China, Council on Foreign Relations available at http://www.cfr.org/china/media-censorship-china/p11515.

9

surveillance and monitoring of Internet based trafc by one or more

government intelligence or law enforcement agencies – and usually

without any threshold showing or requirement for probable cause or

reasonable belief to look at the substance of the communication.

Unless our mental barriers towards reforms are mellowed, all doses of

external remedies are bound to fail. Hence it is the need of the time to

have review on present laws pertaining to speech and expression in the

light of social media boom and many cases of ghting words being

reported. It is worth to quote John G. Roberts J, the earlier Chief Justice of

the United States:

“Speech is powerful. It can stir people to action, move them to tears of

both joy and sorrow, and . . . inict great pain. Hence it is to be delivered

rightfully.”



IS EXPRESSION FREE?

* A. Lakshminath

Abstract

This article discusses and analyzes the jurisprudential point of view of the right of freedom

and expression in depth by referring to literature and various aspects of modern and post-

modern view of human rights and human dignity. It has also referred to the practice or

approach of courts and contribution from the different quarters of fourth estate. The article

points out the disturbing features of the contemporary times relating to religious

conservatism, advanced communication technology which threatens the humanity and

individual freedom. It has further stressed on the need of reinvention and re-articulation of

the foundational principles to save the world from holocaust and suggests reinvention of the

principles of Hindu philosophy for preservation and ensuring human dignity while asserting

or guaranteeing or enforcing freedom of speech and expression.

I Introduction

1WRITING IN 1859, J.S. Mill in On Liberty emphasized that ‘the only

purpose for which power can rightfully be exercised over any member of

a civilized community, against his will, is to prevent harm’… In the part

which merely concerns himself, his independence is of right absolute

over himself, over his own body and mind, the individual is sovereign.

Yet whatever mischief arises from their use is greatest when they are

employed against the comparatively defenceless; and whatever unfair

advantage can be derived by any opinion from this mode of asserting it,

accrues almost exclusively to receive opinions.

Content and viability are essential for the assertion of right in the wider

sense. Content includes ethical assertion which forms the critical

importance of certain freedoms, viz., freedom from (torture) and

correspondingly about the need to accept some social obligation to

promote or safeguard these freedoms. Viability includes open

impartiality or open and informed scrutiny. Viability in impartial

reasoning is central to the vindication of rights even if such reasoning is

ambiguous or dissonant as in the case of American Declaration, French

Declaration and Universal Declaration of Human Rights.

* Pro-Chancellor-Emeritus/Vice-Chancellor, Chanakya National Law University, Patna.1John Stuart Mill, On Liberty (Longman, Robert & Green, London, 1869).

11

II Human rights

The acceptance of a class of human rights will still leave room for further

discussion, disputation and argument that is indeed that nature of

discipline. The validity is ultimately dependent on the presumption of the

claims of survivability in unobstructed discussion. It is extremely

important, as Amartya Sen puts to understand this connection between

human rights and public reasoning especially in relation to demands of 2objectivity.

The universability of human rights relates to the ideas of survivability in

unobstructed discussion – open to participation by persons across

national boundaries. Partisanship is avoided not so much by taking either

a conjunction, or an intersection, of the views respectively held by

dominant voices in different societies across the world … but through an

interactive process, in particular by examining what would survive in

public discussion, given a reasonably free ow of information and

uncurbed opportunity to discuss differing points of view.

3Human rights are thus seen by Sen as “pronouncements in social ethics,

sustainable by open public reasoning”. And he emphasizes that “the

understanding and viability of human rights are … intimately linked with

the reach of public discussion, between persons and across borders”. For

Kant the core of what makes judgment possible is our “common sense” 4shared by other judging subjects. It is this shared sense that allows us to

exercise an “enlarged mentality” by imagining judgments from the

standpoints of others. For Kant the ground for our “common sense” is the

identical cognitive faculties of imagination and understanding that all 5

human beings share.

The UDHR is intended as a minimum standard which should nd

universal acceptance in order to prevent the expected “clash of cultures

2Amartya Sen, The Idea of Justice (Penguin Books, 2010).3 Supra note 3.4 Immanuel Kant, Critique of Judgment (Hackett Publishing Company, Indianapolis, 1987).5Ibid.

Is Expression Free?


and civilizations”. One of the consequences of rights being the point of

departure for constitutional law is that phenomenon like social rights

(which are in fact duties or responsibilities of the states) have been

drafted as individual claims in national constitutions despite their non-

justiciability (e.g., directive principles and fundamental rights). Hardly

two decades later, the UDHR gained the status of an obligatory (albeit

non-justiciable) document for all the countries of the world.

Brian Berry has ably demonstrated why Rawls theory of “justice as

mutual advantage,” being inadequate to consider the intergenerational

question, must be expanded to include the notion of “justice as 6

impartiality”. Amartya Sen acknowledges “the inuence of Theory of

Justice had extended by the early 1980’s, beyond the realm of political 7

philosophy to that of welfare economics. Rawls’ conception of justice

should include the internal justice of the family and the individual,

assuring adequate protection of human rights, in his wider conception of

moral development. The irony of the Rawlsian legacy is that the

difference principle and the pragmatic conception of ‘overlapping

consensus’ aroused maximum interest in countries where social welfare

policies and human rights protection have been the most developed -

whereas in developing countries like India this aspect of Rawls’ early

work has been virtually ignored.

This includes any act of seeking, receiving and imparting information or

ideas, regardless of the medium used. In practice, the right to freedom of

speech is not absolute and is commonly subject to limitations such as

libel, slander, obscenity, sedition (including, for example inciting racial

hatred), copyright violation, revelation of information that is classied.

The right to freedom of expression is recognized as a Bill of Rights under

article 19 of the UDHR and is recognized in international human rights

law in the International Covenant on Civil and Political Rights. Article 19

of this states that “[e]veryone shall have the right to hold opinions

6 T.S.N. Sastry, India and Human Rights: Reections (Concept Publishing Company, New Delhi, 2005).7 Ibid.

13

without interference”, and “everyone shall have the right to freedom of

expression; this right shall include freedom to seek, receive and impart

information and ideas of all kinds, regardless of frontiers, either orally, in

writing or in print, in the form of art, or through any other media of his

choice”. Article 19 of Indian Constitution adds that the exercise of these

rights carries “special duties and responsibilities” and may “therefore be

subject to certain restrictions” when necessary “[f]or respect of the rights

or reputation of others: or “[f]or the protection of national security or of

public order (ordre public), or of public health or morals”.

Concepts of freedom of speech can be found in early human rights

documents. England’s Bill of Rights in 1689 granted “freedom of speech

in Parliament”. The Declaration of the Rights of Man and of the Citizen,

adopted during the French Revolution in 1789, specically afrmed

freedom of speech as an inalienable right.

Article 19 of the UDHR, adopted in 1948, states that:

Everyone has the right to freedom of opinion and expression; this right

includes freedom to hold opinions without interference and to seek,

receive and impart information and ideas through any media and

regardless of frontiers.

International, regional and national standards also recognize that

freedom of speech, as the freedom of expression, includes any medium,

be it orally, in written, in print, through the internet or through art forms.

This means that the protection of freedom of speech as a right extends to

not only the content, but also its means of expression. The English poet,

John Milton offered one of the earliest defences of free speech (in early

modern times). His essay on the right to divorce had been refused a 8

licence for publication. He then published in 1644 Areopagetica, which

is one among history’s most inuential and impassioned philosophical

defences of the principle of a right to freedom of speech and expression,

without a licence.

8 John Milton, Areopagetica: For the Liberty of Unlicensed Printing (The Grolier Club, New York, 1644)

Is Expression Free?


Today, we nd two main arguments used to defend free speech. There are

instrumental arguments that free speech results in tangible benets. A

good example is Meiklejohn’s argument that it promotes the sort of 9

discussion that is a precondition to the functioning of democracy. This

argument appeals to consequences and is, theoretically, testable by

reference to empirical evidence. More commonly today, moral

arguments are preferred in defence of free speech. Some arguments tend

to move from what it is to be a person to the idea that it is an infringement

of autonomy or dignity to remove or restrict speech.

One of the most interesting challenges to free speech today is Holocaust

denial. It is particularly useful to test out Mill, who we saw emphasized 10

the truth or falsehood of statements. The Holocaust – the planned and

systematic extermination of European Jews by the Nazis – is a “fact” – it

is, however, one beset by controversy. There are “Holocaust deniers”

(they prefer the term “revisionists”) who doubt that it happened or who

see the orthodox view that 6 million perished as a gross exaggeration (an

MEP elected in 2014 is on record as saying it was “merely” 340,000).

Some deny there were gas chambers in Auschwitz (a common allegation

is that Jews put them there after the war to assist in the creation of the state

of Israel). Like those who believe the sun goes round the earth and those

who believe the earth is at and those who believe the world was created

in six days, Holocaust deniers are wrong. It is not even a subject worthy of

debate. The Holocaust is an incontestable fact. A number of countries

have criminalized Holocaust denial. UK has not done so.

What then of hate speech? This typically degrades people because of

their race, religion or sexual orientation. It targets minorities. Hate speech

is intended to “compromise the dignity of those at whom it is targeted… it

aims to besmirch the basics of their reputation, by associating descriptive

characteristics like ethnicity or race, or religion with conduct or attributes

that should disqualify someone from being treated as a number of society

9 Alexander Meiklejohn, Free Speech and its Relation to Self- Government (Harper Bros., New York, 1948) 10 Will Cartwright, “ John Stuart Mill on Freedom of Discussion” 5 RJP (2003)

15

in good standing”. It invariably involves acts of extreme racism delivered

provocatively.

It is questionable whether protecting hate speech protects the wrong

people: those with the power of communication at the expense of the

vulnerable. But some liberals believe this is a price to be paid to uphold

their cherished principle of free speech. Some argue that “Hate Speech”

degrades people because of their race and religion targeting minorities

intended to compromise the dignity of those who are targeted. It can only

be countered by more speech citing Nazi march in Chicago which was stheld as protected under 1 amendment freedom. Some liberals believe

that this is price to be paid to uphold the cherished principle of free

speech.

Human rights developed as a concept mainly within Western societies.

But Beitz emphasises that justication needs to be “valid across the 11religious, moral and political societies in today’s pluralistic world”.

Catharine A. Mackinnon asserts that the law of equality and the law of 12freedom of speech are on a collision course. In the United States, the law

of freedom of expression has grown as if a commitment to speech were no

part of a commitment to equality and as if a commitment to equality had

no implications for the law of speech. Issues at the equality–speech

interface are not framed as problems of balance between two cherished

constitutional goals, or as problems of meaningful access to either right

in the absence of the other, but as whether the right to free speech is

infringed acceptably or unacceptably, whether what is called freedom

will give way to an imposed equality. Equality–promoting provisions in

the United States concerning hate crimes, campus harassment, and

pornography, […] for example, tend to be attacked and defended solely in

terms of the damage they do, or do not do, to speech. At the same time,

issues such as racial segregation in education, with its accompanying

illiteracy and silence, are framed solely in equality terms, rather than also

11 Charles Beitz, The Idea of Human Rights (Oxford University Press, New York, 2009).12 Catharine A. Mackinnon, Only Words (Harvard University Press, Cambridge, 1993).

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as ofcial barriers to speech and therefore as violations of the First

Amendment freedoms.

When pornography and hate propaganda explode, as they are in what

Yugoslavia was and elsewhere in Eastern Europe, they tend to be met

with indifference or afrmatively embraced as freedom under US-style 13

speech theory. As pornography and its defense as ‘speech’ take over

more of the world, pervading law and consciousness, desensitizing

whole populations to inhumanity, and sexualizing inequality, legal

attempts to reverse rising racial, ethnic, and religious discrimination,

harassment, and aggression – often ending, as in Croatia and Bosnia-

Herzegovina, in genocide – may be disabled. The ofcial history of

speech in the United States is not a history of inequality – unlike in

Europe, where the role of hate propaganda in the Holocaust has not been 14forgotten.

The evil to be avoided is government restricting ideas because it

disagrees with the content of their political point of view. The terrain of

struggle is the mind; the dynamic at work is intellectual persuasion; the

risk is that marginal, powerless, and relatively voiceless dissenters, with

ideas we will never hear, will be crushed by governmental power. This

has become the ‘speech you hate’ test: the more you disagree with

content, the more important it becomes to protect it. The marketplace

becomes the battleeld when we are assured that truth will prevail while

grappling in open encounter with falsehood, as Milton is often 15

paraphrased.

The existing law against pornography was not designed to see harm to

women in the rst place. It is further weakened as pornography spreads,

expanding into new markets (such as video and computers) and more

legitimate forums and making abuse of women more and more invisible

as abuse, as that abuse becomes more and more visible as sex. So the

13 Jessica Spector, Prostitution and Pornography: Philosophical Debate about the Sex Industry (Stanford University Press, 2006).14 Id.at 83.15 Supra note 8.

17

Court became increasingly unable to tell what is pornography and what is

not, a failing it laments not as a consequence of the saturation of society

by pornography, but as a specically judicial failure and, nally, as an

area in which lines cannot be drawn. The stage is thus set for the

transformation of pornography into political speech: the excluded and

stigmatized ‘ideas’ we love to hate. The way this protects what

pornography says and ignores what it does – or, alternatively, protects

what pornography says as a means of protecting what it does – is

obscured. Thus, can a law develop which prohibits restricting a lm

because it advocates adultery, but does not even notice a lm that is made

from a rape.

Child pornography is not considered the speech of a sexually dissident

minority, which it is, advocating ‘ideas’ about children and sex, which it 16does. Perhaps the fact that boys were used in the lm in the test case has

something to do with it. The ability to see that child pornography is

harmful has everything to do with a visceral sense of the inequality in 17

power between children and adults, yet inequality is never mentioned.

A new principle can be dened in terms of specic experiences, the 18

particularity of history, substantively rather than abstractly. It will

notice who is being hurt and never forget who they are. The state will

have as great a role in providing relief from injury to equality through

speech and in giving equal access to speech, as it now has in disciplining

its power to intervene in that speech which manages to get expressed.

No one seeks “a uniform ethical system”, but everyone wants “necessary 19

minimum of shared ethical values”. “When a state utterly or egregiously

fails to protect the rights of the people residing within its jurisdiction the

rest of humanity must have capacities to do more than sit idly by until the

16David Dyzenhaus, Sophia Reibetanz Moreau, et.al. (eds.)Law and Morality: Readings in Legal Philosophy 950 (University of Toronto Press, Toronto, 2007).17 Ibid.18 Supra note 12.19 Hans Kung, A Global Ethic: Development and Goals, Available at: http://www.interreligiousinsight.org/January2003/Jan03Kung.html (last visited on Sept. 12, 2016).

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slaughter is nished or merely assist the victims after they are

violated…….”

Others committed to moral cosmopolitanism also explore its

implications. What institutions will result world government? States

being given only “conditional sovereignty”? Pogge offers us the fullest

exploration of institutional cosmopolitanism, Falk presents the most 20

convincing case for international humane governance.

21James Nickel in Making Sense of Human Rights denes human rights

as basic moral guarantees that people in all countries and cultures have

simply because they are humans. Tobin says human rights protect human

dignity. Human Rights are interdependent and indivisible.

As Camus suggested there does not seem to be an absolute meaning to

life, for human beings, to nd something useful to do and some reason to 22

live. The post-modern future will be one in which our idea of justice will

be reformed so as to reect a world of ‘small contingent facts’ rather than

an ephemeral illusion of large necessary truths (Rorty). Rorty’s post-post

modernism or post-Nietzschean world will not be quite so ironic or

whimsical or playful as its post-modern predecessor. The stakes in terms

of human sufferings are too high and too immediate as can be seen with

the rising of ‘ethnocentrism’. Rejection of absolute contingency of

Neitzschean post-modernism leaves one with either Kantian

universalism or some kind of murky middle ground. Ethnocentrism

represents privileging of localized group moralities and political values

which is dangerously anti-liberal and liable to justify any number of

undesirable and un-liberal ethnocentrism forms of exclusionary politics.

However, both Unger and Rawls seem to support ethnocentrism. But

such danger can be avoided, as Rorty suggests, by employing strong

liberal political institutions which can preserve procedural justice and

20 Richard Falk On Humane Governance (American University, 1998).21 James W. Nickel Making Sense of Human Rights (Georgetown University Press, Washington D.C., 2004).22 Albert Camus “Stanford Encyclopedia of Philosophy”, available at: https://plato.stanford.edu/entries/camus/ (last visited on Sept. 12, 2016).

19

thereby prevent the state from slipping into a kind of modernist liberalism

of Kant.

Freedom is important; Happiness is important; Autonomy is important

are all ethical assertions. Assessment of viability depends on public

scrutiny – validation of ethical claims from other types –utilitarian, 23

Rawlsian or Nozickian. People speak of moral rights while advocating

their incorporation in a legal system. Self-legislative will of Kant comes

as justication for such limitation. Uncurbed critical scrutiny is essential

for dismissal as well as for justication.

The General drift in Society in our age is that the troubled intellectual in

India today is being asked to choose between Freedom of Expression that

can lead to intellectual murder or a silence that can end in intellectual 24

suicide.

Anyone who can reach Wikipedia enters a digital haven of freedom of

expression. Curbs on free speech are growing tighter. Without the contest

of ideas the world is timid and ignorant. Free speech is under attack by

Governments, non-State actors and by some people and groups asserting

that they have right not to be offended. Repression by governments has

increased in several countries like Russia, China, Middle East

particularly after the overthrow of despots during the Arab spring.

In some cases non-State actors are enforcing censorship of assassination

as was done to Reporters in Mexico who investigated crime or corruption

were tortured and murdered. Secular bloggers in Bangladesh are hacked 25to death in the street. The offence of violating the groups such as ethnic

and religious groups and even people holding political beliefs being

subjective, the power to police it is both vast and arbitrary. It is

23A. Lakshminath and Mukund Sarda, “From Human Rights to Human Dignity: An Unending Story” Available at: http://bvpnlcpune.org/Article/FROM%20HUMAN%20RIGHTS%20TO%20HUMAN% 20DIGNITY.pdf (last visited on Sept. 12, 2016).24 Gopalkrishna Gandhi, “The General Drift of Society” The Hindu, Oct. 18, 2016.25 “Free Speech under Attack”, The Economist, June 4, 2016, Available at: http://www.economist.com/news/leaders/21699909-curbs-free-speech-are-growing- tighter-it-time-speak-out-under-attack (last visited on June 10, 2016).

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unfortunate that the University of California suggests that it is racist

“micro-aggression” to say that “America is a land of opportunity”. Hate

speech is another inroad into the freedom of expression. China locks up

campaigners for Tibetan independence for “inciting ethnic hatred”;

Saudi Arabia ogs blasphemers; Indians can be jailed for up to three

years for promoting disharmony “on grounds of religion, race, caste etc.

Germany and other 10 countries bar insults against their own heads of

State. In many countries free speech is lukewarm and conditional. A

group of Islamic countries are lobbying to make insulting religion a crime

under International Law.

Laws against hate speech are unworkable, subjective and widely abused.

Banning words or arguments which one group nds offensive does not

lead to social harmony. On the contrary it gives everyone an incentive to

take offence - a fact that opportunistic politicians with caste based

support are quick to exploit as is happening in India in recent times. It’s

better not to try silence views with which you disagree and answer all

objectionable speech with more speech which alone ensures greater

freedom.

Many countries have introduced “defence of terrorism” etc., recently that

are often very broad and vague. Such laws are handy tools for those in

power to harass their enemies and particularly become dangerous when

cynical politicians who rely on votes from certain group often nd it

useful to demand the punishment of someone who has allegedly insulted

its members before elections as it has happened in the case of Ashish

Nandi, an intellectual who made a subtle point at a literary festival in

2013 where local politicians preferred outrage and he was charged under 26Prevention of Atrocities Act.

But ethnocentrism offers the best hope for pragmatic liberalism because

it redenes freedom as ‘interdependence’ and as constituent of

‘solidarity’. This idea of pragmatic or relative solidarity, Rorty uses as a

model with which to describe a non-foundational idea of human rights –

26 Supra note 19.

21

one that bears a striking resemblance to that advocated by the likes of 27Douzinas. One feels clearly the pull of contemporary anxieties

regarding the need to devise some kind of philosophy for the emergent

‘new world order’. Such a non-foundational human rights is human right

of consciousness, a response to hearing sad and sentimental stories rather

human right founded on moral knowledge or any other illusion. It is,

Rorty adds, a human right that might be Kantian in spirit, but which is 28Derridean in execution. What matters for pragmatists is devising ways

of diminishing human suffering and increasing human equality

increasing ability of all human children to start life with dignity.

In the ‘End of Human Rights’, Douzinas impressed the natural

progression from the politics of critical legal studies to the aesthetics of 29

post-modern legal thought. The problem with jurisprudential

conceptions of human rights, at least in the modernist tradition, is their

overzealous interest in ‘rights’ at the expense of the human. While the

identity, the social imaginary supports a social organization in which

human relationships will respect and promote the uniqueness of the

participants. The idea of a ‘human rights imaginary’ impresses the non-

essential nature of rights. Rights are merely instruments. What has

essence is humanity, the mutually determining relations of ‘self’ and

‘other’. The Derridian resonance is obvious, perhaps never more so when

Douzinas acknowledges that such a humanism must focus once again on

the nature of love and affection, ‘pity and friendship’ as political concepts

(eg., in cases of Iraq, Afghanistan, Syria, Libya, Yemen and recently 30abandoned Rohingya Muslims, Minorities etc.).

It is not necessary to believe in God to be a good person. In a way, the

traditional notion of God is outdated. One can be spiritual but not

religious… ”Some of the best people in history did not believe in God,

27 Ian Ward, Introduction to Critical Legal Theory 178(Cavendish Publishing, Great Britain, 2004).28 Ibid.29 Costas Douzinas, The End of Human Rights: Critical Thought at the Turn of the Century (Hart Publishing, United Kingdom, 2000).30 Supra note 23.

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while some of the worst deeds were committed in His name.” These are

not the words of a free-thinking rationalist that religious fanatics are 31gunning for. They are the words of Pope Francis. The backlash against

religion has been spearheaded by scientists like Richard Dawkins and

Sam Harris who have cogently and eloquently argued that far from being

a negation of moral codes and an ethical life, atheism as a form of

consciousness-raising is an afrmation of spiritual transcendence. When

the French philosopher-mathematician Pierre-Simon Laplace presented

a copy of his monumental work on the creation of the universe,

Mecanique Celeste, to Napoleon, the soldier-emperor asked, why there 32

was no mention of God in the book. Laplace replied “I had no need of

that hypothesis.” Is it time we outgrew that ‘needless hypothesis’? Those

who say it is, can do so with the blessing of Pope Francis. More than a

century after Nietzsche proclaimed his demise, is humankind beginning

to feel that – like an adolescent who outgrows childish clothes – we have

outgrown the psychological, emotional and spiritual need of God?

J. S. Mill made three main arguments on freedom of speech: the argument

from Truth, the argument from Democracy, and the argument from

Autonomy or Self-Expression. John Stuart Mill’s celebrated study On

Liberty also sustained with the traditional liberal arguments on the 33benets of freedom of speech and the press on the breakthrough of truth.

Mill extended the liberal tradition commenced by Milton and Locke

ideas in the course of a broader notion of freedom of the press. Wellington

states that freedom of the press derived from his concept of individual

liberty when Mill illustrated ‘liberty of thought, from which it is 34impossible to separate the cognate liberty of speaking and writing’. Mill

pursued the track of Milton and had an immense inuence on the

deliberation on press freedom. However, it was criticised that Milton’s

31 “Pope Francis said Belief in God is Not Necessary to be a Good Person” Available at: http://www.snopes.com/politics/quotes/popeatheist.asp (last visited on July 10, 2016).32 Jug Suraiya “God as a Needless Hypothesis”, Available at: http://new.modernrationalist.com/2015/10/god-as-a-needless-hypothesis/ (Last visited on June 12, 2016).33 Supra note 1.34 Ibid.

23

views in favour of freedom of press from state or any other structure to

manage were based on the idea that censorship of ideas inevitably

resulted in a loss of an element of truth. Kathleen M. Sullivan stated that

speech is embodied in a kind of ideological hierarchy in which

mainstream ideas held widely at any given time by majorities or the

socially powerful predominate over the systematically subordinated 35voices of dissent. Thus, protecting speech by dissidents and dissenters

from regulation serves to equalize the relative opportunities.

The freedom of expression is considered as an integral part of a

democratic regime, i.e., one based on some form of institutional

arrangements designed to ensure signicant responsiveness of

government to the wishes of the governed. Members of the public in

general, be the infants or convicts without the vote, or without a right to

free expression, have an interest in the prosperity of democracy, hence, its

existence is, in part, the existence of the right to free public political

expression. The dilemma arises as to what level are there general

principles of freedom of expression, and to what amount is freedom of

expression category-dependent? It is stated that interference by

government to discontinue the publication of what it regards as a false or

misleading view seems contrary to freedom of expression whether the

view concerns anything such as politics, religion, sex, health or the

relative desirability of two kinds of automobile. Freedom of expression,

as a philosophical crisis, is an example of a more general crisis about the

nature and status of rights is to be tested. The interests with which

freedom of expression is concerned especially deals with the interests

that are the basis of special concern with expression.

There are three important justications for freedom of expression:-

1) It helps in sighting of truth by open discussion. That is to say, it

helps out in the detection of truth.

2) Free speech is a phase of self- realization and progress. Freedom of

expression is a central part of each individual’s right to self-

35 Kathleen M. Sullivan, “Two Concepts of Freedom of Speech” 124 Har. LR 143 (2010).

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advancement and self-fulllment.

3) Freedom of expression shields the right of all citizens to identify

with political issues so that they can partake in better working of

democracy. Freedom of speech therefore forties the competence

of an individual in taking part in decision-making.

III Media

The media plays a critical role in stimulating debate about important

issues, presenting facts and reporting news, uncovering corruption and

misconduct and providing a vehicle for diverse perspectives. Therefore,

it) is) considered as a) lynchpin) of) democracy. This freedom carries

with it the right to receive and communicate ideas orally or written

through any medium. Regarding the justication for press freedom, it is

observed by Jennifer Whitten-Woodring that free media will act as a 36

watchdog over the government. Speech serves as a central means of

potentially cooperative and presumptively nonviolent human

interaction. It generates inuence and commune. Press and the electronic

media have obligations different from those that pertain to individuals

and the freedom of speech with regard to individual may have an

objective such as personal development or promotion of autonomous

decision making. Such an objective has no direct relevance to press.

Think hard, work harder. If you dream of making a difference to the lives

of the underprivileged, can retain your cool under stress, are willing to be

non-judgmental and are amiable with different kinds of people, then free

press is an option to explore. “one world is a product of journalism”.

Today the stress is not only on information but ‘credible’ information.

The onus is much more on broadcast journalist. The right of free

expression, once the province of intellectuals, now becomes a matter of

concern to all who favour socio-economic advances like adequate

education, social justice and access to the news media. Freedom of

expression is no longer a political nicety but a precondition for social

36 Jennifer Whitten-Woodring, “Watchdog or Lapdog? Media Freedom, Regime Type, Government Respect for Human Rights” 53 ISQ 595 (2009).

25

competitiveness. This lays down the foundation for an unusual political

condition of the future of intellectuals, scientists, promoters of social

justice and advanced managers of power, all of whom will now nd that

their interest depends on revolutionising the education system, widening

the access of the entire population to computers and other news media,

and protecting even extending freedom of expression. Such a coalition is

the best guarantee of both intellectual and social advances in the steconomics of 21 Century. For Marx freedom was the recognition of

stnecessity. 21 Century social structures can be built on media’s

commitment to social justice. Necessity is the mother of such

commitment of a free and fearless media to secure the ends of social

justice and liberty.

The print and electronic media are essential ingredients of democratic

dialogue. They are participants and not referees in the realisation of

constitutional ideals and aspirations. They need constant feedback. Their

myopia amuses. Their size worries. Their errors hurt. Their arrogance

angers. Like other institutions they profess ideals that exceed their very

human capacities. Gwynne Dyer while writing on Free to Lie laments 37that India is one of ve most ignorant countries in the world. He further

states that in the century and a half when there have been free mass media

(and now social media as well), nobody has come up with a solution for

this problem. “Free” includes free to make mistakes, and free to distort

facts and tell outright lies. Are the media just pandering to existing

popular fears, or are they actually creating them? The unsatisfactory but

inevitable answer is: a bit of both.

IV Free expression and social responsibility

Now a days, journalism persuades journalists and newspaper

entrepreneurs to reconsider accepted ideas of newsworthiness, editorial

policy, and professionalism. Broadcasters’ should respect the public’s

right in broadcasting ‘to receive suitable access to social, political,

37 Gwynne Dyer, “Free to Lie”, The Telegraph, Available at: http://www.telegraphindia.com/1160808/jsp/opinion/story_101143.jsp#.WEfOedR97Dc (Last visited on Aug.8, 2016).

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aesthetic, moral and other ideas and experiences’. This works on fairness

regulation, that the public interest requires opportunities for expression

of contrasting viewpoints on issues of public importance, dates back

more than half a century. Under this, the broadcasters retain discretion to

“decide what issues are ‘important,’ how ‘fully’ to cover them, and what

format, time and style of coverage are ‘appropriate’. This poses the most

potent threat to guarantees of free speech and press. Fairness regulation at

its constitutional worst, therefore, creates gradations of speaking rights

and restricts the speech of some members of society to magnify the

relative voice of others.

Whether anonymity should come under the purview of free speech and

expression? There are several reasons for placing anonymous political

advertising within the category of the press rather than speech First, as a

matter of technological necessity, during the founding era anonymity was

predominantly a feature of the press rather than of speech. In US, press

freedom protected commercial, scientic, artistic, and religious writings

every bit as much as it protected political writings, however, the legal

doctrine of freedom of the press was never unlimited. There is

widespread recognition that the press could be abused, and that the law

should prescribe remedies for abuse. Thus, an author, and sometimes a

printer, could face unpleasant legal consequences if responsible for

breach of parliamentary privilege, defamation, blasphemy, obscenity,

perjury, sedition, or treason. Whether anonymity is protected should not

depend on a court’s calculus of whether disclosure would suppress free

expression in a particular case. The First Amendment of US Constitution

protects an author’s privacy for its own sake.

Internet allows for new means of communication and thus tracking a

user’s internet activity seems intrusive because companies can exploit 38

intimate information. The example is that of cookies, that are

commonplace today because they can ‘remember’ log-in information,

personal preferences, and can be used for security purposes. But cookies

38 Richard M. Marsh Jr, “Legislation for Effective Self-Regulation: A New Approach to Protecting Personal Privacy on the Internet” 15 MT&TLR 543 (2009).

27

are capable of much more: they can store, and later transmit, personally

identiable or sensitive information. This data could include an

individual’s name, credit card number, health condition, social security

number, or lifestyle preference. Cookies are, by design choice and not by

coding constraints, largely invisible to consumers and encrypted to be

unintelligible to any user wanting to know what the cookies are saying

about him or her. Thus these encroachments seem even more dangerous

because ISPs already have users’ billing information in their database and

could combine the data. It is all the more dangerous since smart phones

take up all net banking facilities. This sort of behavioral advertising

violate personal privacy and compromise personal autonomy because the

consumer has no idea how he has been categorized and may be induced to

act in ways he would not have chosen if he knew about his prole. To

resolve this dilemma, some scholars argue that privacy should be

enforced through civil litigation by creating a property right in personal

data or by using tort law to remedy harms from exploited information.

But it may be less effective than legislative and regulatory solutions in

protecting personal privacy. Self-regulation provides exibility and

commercial success but seems to suffer from a poor incentive structure

and inadequate enforcement. Legislation can provide enforcement and

mandate nation-wide policies in the current political atmosphere which

may get widespread support for a legislative remedy.

The defamation law apparently puts a ceiling on freedom of expression

and the law should reconcile defamation law and freedom of expression.

According to Sally Walker, any law which restricts freedom of 39expression should be made to satisfy three minimum standards:

1. The courts and the legislature, must be able to reconcile freedom of

speech with defamation. Recently there is demand that the law of

defamation needs a change;

2. The law should go no further than is indispensable to guard the

interests justifying its subsistence; and

39 Sally Walker, “Regulating the Media: Reputation, Truth and Privacy” 19 MULR 729(1994).

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3. The law should be adequately obvious that those who are involved

by it are procient to resolve what is and what is not allowable by the

law.

Cyberspace being the prospect of the information industry is a place

where everybody is meeting, regardless of gender, age, race, or

association. Since there is no regulatory body policing the Internet, the

extent to which an individual is capable of acting without restriction is a

mystery. Article 19 (1) (a) is a local provision in cyberspace, users all over

the world often pray to its talismanic force against those endeavouring to

hamper free and robust speech. The assumed needs of the budding

mercantile area of the Internet and therefore it is making on governments

is the furthermost menace to the active libertarian theory in cyberspace.

The Communications Decency Act, 1996, is one such hoofmarks that

may in the process of protecting individuals in cyberspace obliterate free

and vigorous speech. This shows that governments already have the

authority to standardize cyberspace that is coterminous with their

geographical boundaries. But, it is not clear that they can effectively

regulate that portion of cyberspace without denying their citizens its

benets. Therefore the need for today is a rule making, fact-nding,

adjudication, and enforcement process that is accepted as legitimate and

is enforceable both in cyberspace and in the real world. The major legal

issues in cyber world are on access, distribution, contract and tort. As

models of governance, three possible models for regulation exist: no

regulation, government regulation, and self-regulation. The alternative is

not between a tranquil state of no regulation, self-regulation, and

government regulation, but the blend of the three.

The unique nature of the cyberspace requires a uniform global system of

regulation should bar nation-states from enacting inconsistent national 40

legislation. Considering each in turn and comparing different forms of

rulemaking that are least restrictive, most decentralized, and cost

40 Tanya L. Yarbrough “Connecting the World: The Development of the Global Information Infrastructure”, Available at: http://www.repository.law.indiana.edu/ cgi/viewcontent.cgi?article=1272& context=fclj (Last visited on Sept. 12, 2016).

29

effective to those that are more centralized, restrictive, and cost

inefcient. Through this process, we reach at the third model - private

law, self-regulation, through a contract law paradigm which is best suited

to govern cyberspace. The contract law model is most frequently offered

as the governing paradigm for cyberspace. It is stated that for those

threats from which technology and individual proposal do not present

enough security, contract law or social enforcement methods endow with

a good basis for generating a law of cyberspace. The users therefore need

to submit their substantial rights during contract to government;

consequently, the contracts must be essentially just due to consensus ad

idem. Hence, the current vogue of shrink-wrapping contracts in

cyberspace must end. Contracting parties must take advantage of the

technological options in cyberspace that reduce the transaction costs of

negotiating contracts so that each contract represents the unique meeting

of the minds - or at least a meeting of the electronic agents. About dealing

with the dispute part it is stated that it should be resolved initially through

negotiation, mediation and arbitration.

Social media differs in several important respects from conventional

print or television ads, and even other websites. These distinctions bring

social media outside the commercial speech realm, and as such,

restrictions on their use will be more highly scrutinized than those on

advertising. Thus regulation necessarily will be exible, thereby

allowing the technology to reach its potential within legal framework. It

is a fact that Social media is not merely a marketing but is a human

connection. To the lawyers and attorneys it is said to be all the more

advantageous as it is virtually cost-free podium from which lawyers can

express, speak, comment on legal news, law rm issues, and experiences

in court. Attorneys can make contacts quickly, exchange information,

and collaborate across jurisdictional boundaries. Moreover, publically

commenting on the law requires that practitioners keep current with new

developments. Social media provides a valuable way to interact within

the community and build a network. For this reason social media is

quickly replacing alumni contacts as an important source of referrals.

Is Expression Free?


There lies the real signicance of social media.

Lawyers already operate in a highly-regulated environment, and there are

several standing ethics rules that could be construed as ambiguous as to

their applicability in the virtual world. Suddenly applying these rules to

social media use without further clarication could implicate due process

concerns. Ethics rules are drafted to govern the substance, not the

medium, of attorney behaviour. The rules should be clear that the

traditional behavioural restrictions apply equally to social media. Instead

of blatantly bringing in regulations, there should be criteria on posting

news on condentiality of information, duties to prospective clients,

responsibilities regarding non-lawyer assistants, advertising etc. This

approach presents the best balance between regulatory ends and

attorneys’ freedoms. It applies all the client protections already embodied

in the current rules to the social media forum. The social media has a

variety of benets that attorneys can use to improve their practice and

understanding of the law. These tools also give clients the ability to

access information about the profession that was previously difcult to

obtain. For all these reasons, any regulations placed on its use by lawyers

should be reasonable and better serve social media to the legal 41profession.

V Digital media

Social media being not simply the digital media, but the modern media,

is considered as the best medium for bonding your lost associations, good

opening to discover jobs, provides a podium of entertainment by posting

pictures, sharing jokes, also partaking relevant articles on various

aspects. With the proliferation of countless users and consumers, social

media has become a platform to express opinions to a wider audience,

ending the individual’s and society’s reliance on traditional media. With

information owing across networks and servers straddling several

41 Kellen A. Hade, “Not All Lawyers Are Antisocial: Social Media Regulation and the First Amendment” Available at: https://www.scribd.com/document/104341010/Not-All-Lawyers-Are-Antisocial-Social-Media-Regulation-and-the-First-Amendment (Last visited on Aug.8, 2016).

31

countries around the globe, there is a growing need to protect information

pertaining to personal and national security. Unlike in the real world,

where social etiquette and manners can sometimes seem restrictive and

limiting, people feel they have a greater sense of freedom of expression

and/or of speech when using online networks.

While traditional websites continue to exist, the robust and responsive

utilisation of the tools that social media offers has improved their efcacy 42and visibility. The law in this area is still relatively unsettled and

constantly changing, but some recent developments have created

intriguing precedent, and the application of existing legislation promises

to keep things interesting for the foreseeable future. Though the social

media has global media platforms, the applicable legal systems are

presently conned to national borders. If one is surng on these sites and

putting some personal details on it, there is a chance of misuse of

information also. There is also a fear of hacking, stalking and online

crime. There may be some people who are so much humourous; they may

download your posted photos. There is no guarantee of such activities.

Many people tend to go too far in sharing their lives and do not remember

that the very real consequences that can occur. Thus in order to overcome

these misuses in social networking sites, one should be aware about the

legal implications i.e., what laws are there to get protection, if any

misuses are occurred in social networking sites and what legal

obligations are there both for the user and the site.

The main areas when users can get themselves into difculty are through

the posting of defamatory content or contents that infringes the

intellectual property rights of someone. Since no statutory immunity

exists to shield users, the standard laws pertaining to defamation and

infringement apply. Likewise, if a user is found to have posted

defamatory contents, the user will be liable, even if the sites can escape

42 Jessica Bosari, “The Developing Role of Social Media in the Modern Business World”, Available at: http://www.forbes.com/sites/moneywisewomen/2012/08/08/ the-developing-role-of-social-media-in-the-modern-business-world/#559165b74189 (Last visited on July 10, 2016).

Is Expression Free?


liability unders. 230 of Communication Decency Act and s. 79 of

Information Technology (Amendment Act), 2008. Similarly, if a user

posts materials infringes on another’s copyright, the user will face

liability for the infringement. Several of the most prominent cases

regarding user’s liability for material posted on social networking sites

have dealt with students suffering criminal charges or adverse

consequences at their schools as a result of allegedly defamatory,

threatening or indecent messages posted on social networking sites.

Given the limited information Facebook provides and the absence of

meaningful choice with regard to certain processing operations, it is

highly questionable whether Facebook’s current approach satises these

requirements. It is opined by Brendan Van Alsenoy and other researchers

that Facebook combines data from an increasingly wide variety of

sources (eg., Instagram, Whatsapp etc.). By combining information from

these sources, Facebook gains a deeper and more detailed prole of its

users. Facebook only offers an opt-out system for its users in relation to

proling for third-party advertising purposes. The current practice does

not meet the requirements for legally valid consent. Likewise, Facebook

has not made any changes to their privacy policy as part of its 2015

model. Its existing default settings with regards to behavioural proling

and marketing, in real meaning ‘opt-out’ stay beyond challenge.

Facebook’s responsibilities as data controller exist independently of the

responsibilities of website operators. As a result, Facebook should design

its social plug-ins in a way which is privacy-friendly by default, so that

website operators are able to provide users with the convenience of social

plug-ins, but without unnecessarily exposing data to Facebook. Thus the

right to information, right of access, rights to object and erasure etc need

to be precisely recognized.

Three predominant ethical duties must be dened in relation to informal 43discovery of social media data. They are: (1) the duty to afrmatively

consider social media data when determining if claims or defenses are

43Agnieszka McPeak, “Social Media Snooping and Its Ethical Bounds” 46 Ariz. St. L.J. 845 (2014).

33

well-grounded in fact, or otherwise performing factual investigations; (2)

the duty to refrain from contacting represented parties or from engaging

in misleading or deceptive conduct to gain access to private social media

content; and (3) the duty to consult clients on their own social media

usage and to preserve evidence.

The ethical aspect even applies to what one writes in social media.

Lyrissa Barnett Lidsky examines ‘dangerous speech’ issues as occurring

around the world due to the handling of Facebook and various other 44social media sites. One such incident was an insulting tweet and

YouTube video ended up in a hostile audience to riot and murder (the

Terry Jones incident), and the other in which a blogger urged his

unidentied, anonymous audience to murder federal judges (the Hal 45

Turner incident). An assessment of these happenings discloses probable

harms with Free speech theory. How spectators react to provocation,

intimidation, or hostility expressions, are bewildered by the new reality

social media create since unmediated character of social media speech

also increases its potential for sparking violence. Apart from that, the

anonymity of many social media interactions also cultivates violent

behavior, and the rate of communications authorize provocative speech

to reach individual audience members at the point when they are most

vulnerable to engaging in violent action.

Dealing with Indian aspect, the Internet has made an unimaginable

impact on the fundamental right to freedom of speech and expression

guaranteed under Article 19(1)(a) of the Constitution of India. The

Internet democratizes article 19(1)(a). Sec. 66A of the Information

Technology Act penalises the misuse of internet device and the

government can interfere in that, from such misuse danger is ‘clear and

present’. In the recent past the misuse has caused 70 deaths and mass

migration of several people from North East from south India. Misuse of

internet created several law and order problems threatening social fabric

44 Lyrissa Barnett Lidsky, “Incendiary Speech and Social Media” Available at: http://scholarship.law.u.edu/cgi/viewcontent.cgi?article=1216&context=facultypub (last visited on Aug.8, 2016).45 Ibid.

Is Expression Free?


and national security. The government has justied in seeking the

provision as a reasonable restriction on freedom of expression under 46article 19 (1) (a). The Supreme Court, however, in Shreya’s case

invalidated sec. 66A of the IT Act, though on different grounds.

The ‘clear and present danger test’, as stated by Holmes, “served to

indicate the importance of freedom of speech to a free society but also to

emphasize that its exercise must be compatible with the preservation of

other freedoms essential to a democracy and guaranteed by our 47Constitution. When those other attributes of a democracy are threatened

by speech, the Constitution does not deny power to the [government] to

curb it.” As characterized by Justice Brandies in a later case, the Holmes

test “is a rule of reason. Correctly applied, it will preserve the right of free

speech both from suppression by tyrannous, well-meaning majorities and

from abuse by irresponsible, fanatical minorities.”With information

owing across networks and servers straddling several countries around

the globe, there is a growing need to protect information pertaining to

personal and national security as they have a greater sense of freedom of

expression and/or of speech when using online networks.

The distinctive nature of the new media technologies, principally the

features that fuse the technologies under a sole umbrella can be summed

up by the 5 C’s: communication, collaboration, community, creativity,

and convergence. Despite the easy entry into this eld, many users of

social media are not aware of the enormous legal risks involved in their

online activities. These risks include violating state and federal

advertising laws, copyright laws, privacy laws, securities laws,

trademark laws, and tort laws such as defamation. Many people engaged

in social media marketing are regularly posting on websites belonging to

others without understanding how such a website’s terms of use could

affect them. In addition to liability for their own posts, there is also the

potential to become liable for third-party content posted to their own

46 Shreya Singhal v. Union of India, AIR 2015 SC 1523.47 Ronald K.L. Collins (ed.), The Fundamental Holmes: A Free Speech Chronicle and Reader 359(Cambridge University Press, 2010).

35

sites. The jurisdictional issues alone are mind-boggling

Data protection and privacy laws aim to achieve a fair balance between

the privacy rights of the individuals and the interests of data controllers

such as banks, hospitals, e-mail service providers. These laws search for

tackling the challenges to privacy caused by collecting, storing and

transmitting data using new equipment. The ample range in types of data

transfers across international borders that occur daily might give rise to

different problems that require different solutions at different times. In

the end, an approach to regulation based on careful attention to

technology and business developments, coupled with genuine respect for

cultural differences, is most likely to produce satisfactory, workable

international solutions. Inaction, however, is not an option as the conict

has already manifested itself in the tensions that exist between the

approach to regulation taken in the European Union and the approach

taken in the United States.

As the greatest mode of forming associations through Facebook and

other social networking websites, the Internet revolutionizes the

fundamental right to freedom of forming associations under article

19(1)(c) of the Constitution. But the necessity has arisen so as to ask

‘whether social media needs regulation’? There is no need of any specic

regulations as they can be found in reasonable restrictions mentioned in

article 19 (2) and (4). The jurisprudence of the court should strike a

balance between demosprudence and legisprudence.

VI Conclusion

There is no yardstick to determine which are moral and which are

immoral. H.L.A. Hart and Lord Devlin’s debate was concluded with the

shared morality which we require in society for balancing democracy as 48

well as morality. It has to be left to Jurisprudence of the court as it is

more prudent to determine moral standards than the legisprudence.

New communication convergence technology is being misused and

48 Ronald M. Dworkin, “Lord Devlin and the Enforcement of Morals”, Available at: http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4612&context= ss_papers (Last visited on June 5, 2016).

Is Expression Free?


abused by criminals in cyberspace. Cyber pornography, online child

pornography, cyber spamming, cyber hacking, cyber fraud, cyber

terrorism, owing of viruses, phishing etc. are cybercrimes. These are

proliferating at a lightening speed in the age of information technology

uprising. There is a need to adopt uniform legal system and co-operation

worldwide. There is need to adopt specic laws on jurisdiction at

international level. To test online transaction or transmission Judiciary

may use the community standards of the place where it is originated or the

place where it is downloaded. There is need of international co-operation

and active international Cyber crime cell. Spam is horrible and

threatening act. We need anti-spam law.

Cyber cafes, ISPs and parents must use lter software, timer clock of

internet protocol and rewall to prevent minors from viewing and using

objectionable websites and images. Cyber cafes and ISPs must demand

photo identity cards, and use biometric ltering machine to identify every

user and to help investigations in realistic sense. There is a need to spread

awareness among minors, parents, adults and institutions about misuse

and abuse of new technology and effects on society. About social

networking e-mail etc. If the contents are transmitted in private between

two or more consenting adults without causing any harm to society or

maintaining decency and morality then it should be allowed as freedom

of speech and expression in the age of communication convergence

technology.

The fact that the law in India is yet to attain clarity in relation to the

liability of intermediaries is true. Certain changes are required to be made

to the law as well as additional changes must be bought in the system of

working of the legal institutions as well as intermediaries. It is essential to

balance the interests of ISPs and the public at large. This can be done by

making laws imposing minimum mandatory fair obligations on ISPs by

providing immunity for their actions taken in good faith. It is essential to

ensure collective efforts of all legal enforcement authorities involving

both public as well as private players including ISPs based on

cooperative models.

37

Cyber security expert Ms. Hathaway recently stated that it will be very

difcult to get a common view of the (cyber security) law across 196

countries; because there are different approaches, cultures, history on

how we think about freedom of speech; the right to privacy and freedom 49

& security.” No country should demand that the technology is

weakened. Stating that “crimes happen too fast” on the internet,

Hathaway said “by denition international cooperation is too slow at the

speed of the internet”. “We should be able to work on machine speed on

some of these things. And, not at the speed of the bureaucracy.”

The last century, despite its extra-ordinary scientic and technological

achievements has been one of the most lethal in human rights

performance. A disturbing features of the contemporary times are the

revival of religious fanatism and the abuse of Advanced Communication

Technology which are posing a major threat to the humanity and

individual freedoms. It is therefore necessary to reinvent, to rearticulate

the foundational principles to save the world from holocaust. It may not

be out of place to reinvent the principles of Vedanta of Hindu philosophy

which suggest some fundamental and foundational principles for

preservation and ensuring human dignity while asserting or guaranteeing

or enforcing freedom of speech and expression by injecting the following

universal truths into the human minds.

i) ‘Amrutasya Sishu’- children of immortality.

ii) ‘Vasudhaiva Kutumbakam’ – The entire world is a family

iii)‘Sarve Janah Sukhinobhavantuh’ – Welfare of all beings.

Today, when narrow domestic walls and general drift in society are

emerging all over the globe, dividing people into ever smaller groups

engaged in hating and ghting each other and encouraging intellectual

murder or suicide, Rabindranath Tagore’s voice must resonate on the th 50

occasion of his 75 death anniversary:

49 Abhishek Law, “Difcult to Get Common View on Cyber Security” The Hindu: Business Line, Oct. 23, 2013.50 Rabindranath Tagore, “Where the Mind is Without Fear”, Available at: https://allpoetry.com/Where-The-Mind-Is-Without-Fear (Last visited on Aug. 8, 2016).

Is Expression Free?


Where the world has not been broken

up into fragments by narrow domestic walls.

Where tireless striving stretches its arms towards perfection

into that heaven of freedom, my Father, let my country awake.

People keep hurting us, intentionally or not, by words or deeds. Our

world is populated by a multitude of opposing mindsets. They clash and

hurt each other but also have an inbuilt mechanism to manage hurt. It we

stop expressing our opinions because someone will be hurt by them, if we

curb the growth of scientic knowledge, if we forcibly try to stall the

march of civilization, we will end up inhabiting a stagnant quagmire

instead of basking in a raging cascade of knowledge and plenitude.

Freedom of speech is the freedom to say something someone else might

not like to hear. Those who never hurt another’s sentiments to do not need

freedom of speech. A state that chooses to side with those who seek to

oppose such freedoms, instead of ensuring that they are brought to book,

will be responsible for its own eventual annihilation. As Taslima Nasrin

emphasizes this crisis is not India’s alone; it is being felt across the world.

It’s not so much a battle between two faiths but a war between two

opposing worldviews – the secular and the fundamentalist, the

progressive and the prejudiced, the rational and the superstitious.

39

FAIR USE FOR EDUCATIONAL PURPOSE: AN ANALYSIS

* **S. Sivakumar and Lisa P Lukose

Abstract

This article analyses the judgement in The Chancellor, Masters & Scholars of The University

of Oxford v. Rameshwari Photocopy Services. It also tries to examine the difference between

fair dealing and fair use. The article scrutinises what is the extent and scope of reproduction

under section 52 (1) (i) as an exception in Indian copyright law which can be used as fair use

defence for educational purposes.

I Introduction

LAW OF copyright aims at protecting original works of authors.

Copyright law ensures that an author or creator of a work derives benets

from his product of creativity. In other words, copyright law forbids

unauthorized use of copyrighted contents. Copyright system is very

much needed to encourage the creators to engage into creative activity.

However, there are limitations and exceptions in the copyright system

itself to ensure dissemination of knowledge and access to creative works.

Doctrine of fair use is one among such exceptions to exclusive right of the

copyrighted content owners. In this article, the authors critically examine

the decision given by the Delhi High Court in Rameshwari Photocopy

Services case (which is popularly known as Delhi University Photocopy

case) with reference to fair use for educational purposes.

II Brief facts

The ve plaintiffs publishers: Oxford University Press, Cambridge

University Press, United Kingdom, Cambridge University Press India

Pvt. Ltd., Taylor & Francis Group, U.K. and, Taylor & Francis Books

India Pvt. Ltd., instituted a suit for the relief of permanent injunction

restraining the two defendants - Rameshwari Photocopy Service

(carrying on business from Delhi School of Economic, University of

Delhi) and the University of Delhi from infringing the copyright of the

plaintiffs in their publications by photocopying, reproduction and

distribution of copies. The plaintiff had complained that at least four

* Member, Law Commission of India.* Corresponding author, Associate Professor, GGS Indraprastha University, Delhi.

Fair Use For Educational Purpose: An Analysis


course packs were sold by the defendant based on syllabi issued by the

Delhi University for its students containing photocopies of portions of

plaintiffs’ publication varying from 6 to 65 pages. It was also alleged that

the faculty teaching at the defendant University is recommending the

students to purchase these course packs instead of legitimate copies of

plaintiffs’ publications. The libraries of the defendant University are

issuing books published by the plaintiffs stocked in the said libraries to

the defendant shop for photocopying to prepare the said course packs.

The Commissioner appointed by the Court found that as many as 45

course packs containing photocopied articles comprising of 1 to 22

copies of varying number of pages of the books and 8 books being

photocopied cover to cover.

The defendants on the other hand argued that the university does not

recommend the entire publication but only certain extracts; the students

are reluctant to buy the entire publication just for reading a particular

extract therein and cannot afford to buy 35 to 40 books prescribed in the

syllabi, and to ease the nancial burden on students, limited copies of the

majority of the titles prescribed in the syllabi are housed in the library.

These limited copies are insufcient to cater to the needs of the students

and the faculty and hence they photocopy the relevant extracts. In order to

save the original work from being damaged from repeated photocopy, the

faculty of DSE has compiled various master copies of books, the

photocopying shop is not commercially exploiting the author‘s copyright

but is giving copies to students at nominal rates of 40 paise per page to aid

their education and as such they acted in good faith within the meaning of

Section 76 of the Copyright Act, 1957. It was also contented that world

over universities permit students to copy limited pages from any work for

use in ‘research /teaching and for use in the classroom by a student or

teacher’ and this is recognised in India by sections 52(1)(a) & (i) of the

Copyright Act.

1 th Decided on 16 September, 2016 (CS(OS) 2439/2012, I.As. No. 14632/2012 (of the plaintiffs u/O 39 R-1&2 CPC), 430/2013 (of D-2 u/O 39 R-4 CPC) & 3455/2013 (of D-3 u/O 39 R-4 CPC).

41

III Judgment

The Delhi High Court while dismissing the suit in The Chancellor,

Masters & Scholars of The University of Oxford v. Rameshwari 1Photocopy Services held that ‘making of course pack as suggested

reading by photocopying of sections of various prescribed reference

books for the use of students does not violate the copyright of the

publishers’. The court considered this question as a question of law 2requiring no trial. The judgement also held that there is no copyright

3except as prescribed in the Act and Section 16 converts copyright from a 4natural or common law right to a statutory right.

Photocopying vis a vis the exclusive right of reproduction

Section 14 of the Indian Copyright Act, 1957 grants certain exclusive

rights on the copyright owner for the commercial exploitation of the

work. The right to reproduction is the exclusive right of the owner of the 5

literary work within the meaning of Section 14. Making photocopies of a

work amounts to reproduction. As per the court, section 14(a)(i)

constitutes right to reproduce literary work per se as copyright and

section 51(a)(i) constitutes such reproduction per se as infringement of

copyright and section 2(m) constitutes the copy so reproduced as

2 Para 2.3 S. 16: No copyright except as provided in this Act:- No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or condence.4 Para 28.5 S. 14. Meaning of copyright - For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:(a) in the case of a literary, dramatic or musical work, not being a computer programme,—(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;(ii) to issue copies of the work to the public not being copies already in circulation;(iii) to perform the work in public, or communicate it to the public;(iv) to make any cinematograph lm or sound recording in respect of the work;(v) to make any translation of the work;(vi) to make any adaptation of the work;(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specied in relation to the work in sub-clauses (i) to (vi)...



infringing copy. Photocopies made in violation of section 14 constitute

infringing copy within the meaning of section 2(m) unless such act is

listed under Section 52 as an act not constituting infringement. The

judgement holds that if any provision of the Act permits any person other

than the owner to reproduce any work or substantial part thereof, such 6reproduction will not amount to infringement. It is worth mentioning

that in the realm of copyright law, author and owner are two different 7concepts though authorship and ownership may vest on the same person.

The court also took note of the difference in the language in the statute –

between sections 52(1)(i) and 52(1)(j); while section 52(1)(i) using the

words teacher and pupil, section 52(1)(j) uses the words staff and

students of educational institution. In the opinion of the court, the scope

and ambit of section 52(1)(i) cannot be so restricted. The court could not

nd reason to interpret section 52(1)(i) as providing for an individual 8teacher and an individual pupil. The court took note of the fact that in

section 32(6) explanation (d), The phrase purposes of teaching, research

or scholarship‘ (though for the purpose of that Section only), has been

dened as including instructional activity at all levels in educational

institutions, including Schools, Colleges, Universities and tutorial

institutions and all other types of organized educational activity. As per

the court, ‘instruction‘is not conned to educational institutions or

establishments but it embraces any form of instruction wheresoever and 9

not necessarily in educational institutions. The court, by marking the 6 Para 27.7 Authorship and ownership are, in relation to copyright, two distinct concepts, each of which attracts its own peculiar rights: the author having moral rights, and the owner of the copyright possessing economic rights. Sometimes, the author of a work will also be the owner of the copyright in the work, but this is not always so. Many works have separate authors and owners as far as copyright is concerned. Ownership ows from authorship. The person who makes the work is normally the rst owner of the copyright in the work, provided that he has not created the work in the course of employment. 8The court relied on S.P. Gupta v. President of India, 1981 Supp (1) SCC 87 and The State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601 wherein it was held that interpretation of every statutory provision must keep pace with the changing concepts and it must, to the extent to which its language permits, or rather does not prohibit, suffer adjustments so as to accord with the requirements of fast growing society.9 Para 56.

43

10difference between the clauses (i) and (h) of section 52 (1) held thus:

The use of the word publication‘ in Section 52(1)(h) as distinct from the

word reproduction‘ in Section 52(1)(i) further brings out the difference

between the two words. While the word publication‘ used in Section

52(1)(h) connotes making available to the public for the rst time‘ or by

way of further editions‘ or e-print‘ i.e. the activity in which plaintiffs are

involved, the word reproduction‘ used in Section 52(1)(i) entails ‘for

copying’ for limited use, i.e., for an individual or for a class of students

being taught together by a teacher.

Copies not being already in circulation

Section 14 confers on the owner, inter alia, the right to issue copies of the

work to the public not being copies already in circulation. The

Explanation to section 14 provides that for the purpose of section 14, a

copy which has been sold once shall be deemed to be a copy already in

circulation. The plaintiffs’ books were purchased by the defendant and

hence by virtue of the said Explanation, these are deemed to be a copy

already in circulation within the meaning of section 14(a)(ii) and the

exclusive right to issue the same to the public does not vest in the owner

of the copyright. By applying the principle of exhaustion the court hold

that: “the principle of exhaustion… the genesis of libraries, not only of

Universities and other educational institutions but run and operated

otherwise and commercially also, and of the business of resale of 11books.”

According to the court, “if the words ― to issue copies of the work were

to be read also as ― making copies of the work, the same would

tantamount to the owner of copyright after having once sold a copy

thereof, being left with no right to restrain the person who has purchased

the copy from making further copies thereof and selling the same.... Once

the acts listed in section 52 are declared as not constituting infringement

of copyright and the reproduction of work resulting from such acts as not

10 Para 57.11 Para 35.



constituting infringing copy, it follows that the exclusive right to do the

acts mentioned in section 52 has not been included by the legislature in

the denition in section 14; of copyright, once that is so, the doing of such

act cannot be infringement under section 51 and the question of taking the 12

same out by way of proviso or exception does not arise”.

Fair use vis a vis fair dealing

Promotion of creativity through sufcient protection is the basic

rationale of copyright system. Copyright law also cares for dissemination

of knowledge and access to copyrighted material through the doctrine of

fair dealing or fair use. The copyright law of UK uses the term fair deal

and the USA copyright law adopts fair use. Indian copyright statute uses

the term ‘fair dealing’ following the UK model. Under fair use system,

the list of purposes or types of use is merely illustrative where as in fair

dealing system, listed purposes are statutorily embedded and fair dealing

defence can be allowed only if the use is for one of the prescribed

purposes. Article 13 of the TRIPS Agreement states that members shall

conne limitations or exceptions to exclusive rights to certain special

cases which do not conict with a normal exploitation of the work and do

not unreasonably prejudice the legitimate interests of the right holder.

The fair dealing doctrine is essential for research and academic purpose,

private study and for dissemination of knowledge. The term fair dealing

is nowhere dened in the Indian Copyright Act; hence, determination of

the scope of fair dealing is to be done in a case to case basis, which is

always a difcult task for the judiciary. The judiciary in India and abroad

have developed some tests and doctrines to determine whether a

particular dispute is a case of infringement or an instance of fair dealing.

Thus, the copyright Act seeks to maintain a balance between the interest

of the owner of the copyright in protecting his works (fairness theory) on

the one hand and the interest of the public to have access to the works

(welfare theory) on the other and these two are competing rights between

which a balance has to be stuck. The central idea behind this doctrine is

to prevent the stagnation of the growth of creativity.12 Paras 36 and 41.

45

Reproduction under section 52(1)(i)

Section 52(1)(i) of the Copyright Act treats as fair dealing “the

reproduction of any work (i) by a teacher or a pupil in the course of

instruction; or (ii) as part of the questions to be answered in an exam; or

(ii) in answers to such question. The present case centres around this

section. It is to be noted that this sub section does not contain the term

‘educational institution’ which is present in section 52 (1) (j). Section 52

(1) (j) uses terms such as “staff and students of educational institution”

where as section 52(1)(i) uses terms such as “teacher and pupil in the

course of instruction.” On analysing the difference in language between

these sections, the judgment reads that “there is no reason to interpret

section 52(1)(i) as providing for an individual teacher and an individual

pupil and which, neither at the time of inclusion thereof in the statute nor 13now exists in the society”.

The word instruction is not dened in the Act. Thus, the use of the word

instruction preceded with the words in the course of would mean in the 14course of instruction being imparted and received. While answering the

question when does the imparting of instruction begin and when does it

end, it was held that it begins prior to the classroom and ends much after

the classroom interface between the teacher and pupil has ended. Hence:

…the words in the course of instruction within the meaning of Section

52(1)(i) supra would include reproduction of any work while the process

of imparting instruction by the teacher and receiving instruction by the

pupil continues i.e. during the entire academic session for which the pupil

is under the tutelage of the teacher and that imparting and receiving of

instruction is not limited to personal interface between teacher and pupil

but is a process commencing from the teacher readying herself/himself

for imparting instruction, setting syllabus, prescribing text books,

readings and ensuring, whether by interface in classroom/tutorials or

otherwise by holding tests from time to time or clarifying doubts of

students, that the pupil stands instructed in what he/she has approached

13 Para 55.14 Para 61.



the teacher to learn. Similarly the words ―in the course of instruction,

even if the word ―instruction have to be given the same meaning as

lecture‘, have to include within their ambit the prescription of syllabus

the preparation of which both the teacher and the pupil are required to do

before the lecture and the studies which the pupils are to do post lecture

and so that the teachers can reproduce the work as part of the question and

the pupils can answer the questions by reproducing the work, in an

examination. Resultantly, reproduction of any copyrighted work by the

teacher for the purpose of imparting instruction to the pupil as prescribed

in the syllabus during the academic year would be within the meaning of 15

Section 52 (1)(i) of the Act.

Though, the act of making of photocopies is reproduction of copyrighted

work, it will not constitute infringement if the same is by a teacher or a

pupil in the course of instruction. The judgment also qualify as fair

dealing, if the students click photographs of each page of the portions of

the book required to be studied by him and to thereafter by connecting the

phone to the printer take print of the said photographs or to read directly

from the cell phone...”

IV Conclusion

It is true that “copyright is intended to increase and not to impede the

harvest of knowledge. It is intended to motivate the creative activity of

authors and inventors in order to benet the public”, then what is left for

the authors and owners? In the process of creation of a work, the

author/owner invests considerably. Can these aspects be ignored while

interpreting Section 52(1)(i) as a license for reproducing the whole

material or substantial portion thereof. University has never directly

issued books to the photocopy shop for reproduction; however, the

Commissioner appointed by the Court had reported that 8 books were

found being photocopied cover to cover.

Does Section 52 in its spirit and letter guarantee the right of reproduction

of the whole material, an aspect which the court avoided to address? Is

15 Para 72.

47

that the objective of fair dealing? Or fair dealing covers only reasonable

excerpts? If the legislature had intended to give such a wide interpretation

to the word ‘in the course of instruction’ as the judgement did now, why

the sub clauses (ii) and (iii) of Section 52(1)(i) would specify “as part of 16

the questions to be answered in an exam or in answers to such question”.

These also should be automatically covered. Why legislature had _dropped the words from the draft “in the course of preparation for

_instruction” in the nal amendment Act? One can easily relate a teacher

and a university. Is it justied to equate with the same vigour the

photocopy shop run in the university within the expression, ‘in the course

of instruction’? Does the fair use provide blanket immunity for multiple

copies for classroom use and all activities as covered by the judgement as

part of ‘in the course of instruction”? Does the judgement facilitate the

University through photocopy or similar device to meet the demand of all

students by purchasing a single book? As per the judgement no limitation

should be placed on photocopy if it is in the course of instruction. When 17the university is entitled to free photocopy of 3000 pages every month

can the possibility of commercial interest be overruled? In that context

does it comply with article 13 of TRIPS Agreement?

The judgment paves way for enhancing access to education in India. It

heavily favours the teaching and learning purposes. The judgment will

certainly have wide reaching impact in the academic circles and in the

copyright industry. When the photocopy shops continues to photocopy

the books, the question remains is that whether the court was successful

in balancing the competing interests of the academic community and the

authors/owners. The students can never be expected to buy all the books

and fair use should be allowed; however there should be no legal

ambiguity as to how much can be reproduced - is it from cover to cover or

a reasonable extract.

16 Also see, S Sivakumar and Lisa P Lukose, “On Right to Photocopy” 11

(The Hindu, 26 September, 2016)17 Para 4.



LIABILITY OF THE VEHICLE INSURER IN THE CASES OF

FAKE AND INAPPROPRIATE DRIVING LICENSES

Rajesh Kumar*

Abstract

Use of fake and inpparopriate driving is one of the worst reality faced by our legal system

everday. In many cases, most of the drivers are not using the driving licenses or using the fake

and inappropriate driving licenses. This article focusses on the Motor Vehicle Act and its

loopholes in the current rising number cases. The author opines that in the event of a motor

accident, the regulatory framework of issuance of commercial and heavy vehicle license is

lengthy, technical and cumbersome, leaving no choice for poor people except either adhering

to corrupt practices or to use fake driving licenses . This issue becomes more important as it is

taken as a main defense by the insurance company for denying the claims. In most of the

cases, this plea has been taken, which has forced the supreme court to adopt a liberal

approach with respect to such fake or inappropriate driving licenses. In various leading

cases, the Supreme Court has tried to develop a balanced approach while dealing with such

problems by developing the jurisprudence of wilful default leading to a fundamental breach

of conditions of the insurance contract . Thus, if the insurance company succeeds in proving

wilful default leading to the fundamental breach , then it has a right to recover the

compensation money from the owner of the vehicle or the driver. Recently, introduced Motor

Vehciles Amendment Bill, 2016 has provided the important changes with respect to check

the system of fake and inappropariate of driving licences . However, with respect to liability

of insurer,only few changes has been provided.

I Background

FAKE AND inappropriate driving licences are important grounds of

defence taken by the insurance companies for negating liability under ,

motor accident claims. In India, due to lack of aproper system of

verication, a driver of a vehicle can manage with thefake driving licence 1of other states. Motor vehicle departments in the different states issues

different type of driving licences and their system are not

interconnected.Further, rules and practice for issuing commercial driving

licences for heavy vehicles are cumbersome, tough and lengthy. It forces

drivers of commercial vehicles to manage fake driving licences. Further,

under the strict legal framework of Motor Vehicle Act, 1988, a person

* Assistant Professor, NUSRL, Ranchi.1 G. S Karkara, Assessment of Compensation in Accidents under Motor Vehicles Act,

nd 1988 (2 edn., Delhi Law House, 2013).

49

who has the driving license of the motorcycle cannot drive a car. A person

having driving licence of Light Motor Vehicle (LMV) cannot drive a

Heavy Motor Vehicle (HMV). However, in reality, more than one-fourth

of drivers on Indian roads are driving the heavy vehicles with LMV

driving licences. In legal terms, such drivers are having inappropriate

driving licences. Contract of insurance is the contract of utmost good

faith and specic to subject covered. Further, MV Act clearly and

particularly excludes liability of insurances companies on the ground of

fake and inappropriate driving licence. Courts have tried their best to

interpret the law considering the scope of motor accidents claim as

benecial legislation. However, this issue has been raised again and

again in many cases as in most of the cases; this ground is available to the

Insurance companies.

II Regulatory framework

Under the MV Act, ‘motor vehicle’ is dened as any mechanically

propelled vehicle adapted for use upon roads whether the power of

propulsion is transmitted thereto from an external or internal source and

includes a chassis to which a body has not been attached and a trailer , but

does not include a vehicle running upon xed rails or a vehicle of a

special type adapted for use only in a factory or in any other enclosed

premises or a vehicle having less than four wheels tted with engine 2capacity of not exceeding twenty-ve cubic centimetres”.

Consequently, the denition has been comprehensive to give effect the

benecial legislation

Sec. 3 of the MV Act mandates the requirement of having a driving

licence. It says that “No person shall drive a motor vehicle in any public

place unless he holds an effective driving licence issued to him

authorising him to drive the vehicle; and no person shall so drive a

transport vehicle other than 7 a motor cab or motor cycle] hired for his

own use or rented under any scheme made under sub – sec. (2) of sec. 75 3

unless his driving licence specically entitles him so to do. However, the

2 See, Motor Vehcile Act, 1988, s. 2(28).3 Id. at s. 3(1).

Liability of The Vehicle Insurer in the Cases of Fake and Inappropriate Driving Licenses


conditions subject to which sub-section (1) shall not apply to a person

receiving instructions in driving a motor vehicle shall be such as may be 4prescribed by the Central Government.”

The owner of the vehicle is further expected to use the vehicle with

theappropriate driving licence. Sec. 5 of the MV Act says that “No owner

or person in charge of a motor vehicle shall cause or permit any person

who does not satisfy the provisions of sec. 3 and sec. 4 to drive the 5vehicle.”

With respect to fake driving licences, it is important to note that the

driving license issued by one state is valid and effective throughout 6India. Different states have different procedures and format for the

driving licences. They are not interconnected by any methods. For the

enforcement agencies, which happen to be trafc police or local police at

the spot, it is very difcult to verify the authenticity of driving licences.

Most of the states have not adopted till date the computerised driving

licences. This is the important reason for theuse of fake driving licences

by drivers of heavy commercial vehicles.

Licences issued under this act have to be specic mentioning the motor

vehicle which can be used by the driver. Sec. 10 of this act specically

provides for the Form and contents of licences to drive. It says that “every

learner’s licence and driving licence, except a driving licence issued

under sec. 18, shall be in such form and shall contain such information as 7may be prescribed by the central government.”

It further provides that “ A learner’s licence or as the case may be, driving

licence shall also be expressed as entitling the holder to drive a motor

vehicle of one or more of the following classes, namely:-

(a) Motor cycle without gear;

(b) Motor cycle with gear;

4 Id. at s. 3(2).5 Id. at s. 5.6 Id. at s. 13.7 Ibid, s. 10(1).

51

(c) Invalid carriage;

(d) Light motor vehicle;

(e) Transport vehicle; (i) road-roller; (ii) motor vehicle of a specied 8description.

Provisions have also given for disqualication, suspension, cancellation

under sec. 19, sec. 20, sec. 21 and sec. 22 of the MV Act.

So, MV Act, very clearly classies the type of motor vehicles, which can

be used by specic licences issued. Motor vehicles are of different types.

Broadly, it may be for carrying persons or goods. These are goods 9

carrying vehicles.

(i) Motor cycle with side car for carrying goods.

(ii) Motor cycle with trailer to carry goods.

(iii) Motor cycle used for hire to carry one passenger on pillion and

motorised cycle-rickshaw for goods or passengers on hire.

(iv) Luxury cab.

(v) Three wheeled vehicles for transport of passengers or goods.

(vi) Goods carrier trucks or tankers or mail carriers.

(vii) Power tiller and tractors using public roads.

(viii) Mobile clinic or X-Ray van or library vans.

(ix) Mobile workshops.

(x) Mobile canteens.

10Following are the vehicles for private use.

i) Motor cycle with or without side car for personal use.

ii) Mopeds and motorised cycles (engine capacity exceeding 25 cc).

iii) Invalid carriage.

iv) Three-wheeled vehicles for personal use.

8 Id at s.10(2).9 Available at: http://www.iato.in/pdf/TYPESOFMOTORVEHICLESATAGLANCE 89086312.pdf. (Last visited on Sept. 13, 2016)10Supra note 9.



v) Motor car.

vi) Fork lift.

vii) Vehicles or trailers tted with equipments like rig, generator, and

compressor.

viii) Crane mounted vehicle.

ix) Agricultural tractor and power tiller.

x) Private service vehicle, registered in the name of an individual and

if declared to be used by him solely for personal.

xi) Camper van or trailer for private use.

Following are the public service vehicle such as maxi cab, motor cab, 11

stage cariage and contract carriage including tourist vehicles.

(xiii) Educational institution buses.

(xiv) Ambulances.

(xv) Animal ambulances.

(xvi) Camper vans or trailers.

(xvii) Cash vans.

(xviii) Fire tenders, snorked ladders, auxiliary trailers and re ghting

vehicles.

(xix) Articulated vehicles.

(xx) Hearses.

(xxi) Omnibus

(xxii) Tow trucks, breakdown van and recovery vehicles.

(xxiii) Tower wagons and tree trimming vehicles owned by central, state

and local authorities.

(xxiv) Construction equipment vehicles .

Subsequently, according to the classication of vehicle, the classication

of driving licences is also prescribed by the classication of Driver’s

11Ibid.

53

12Licences Regulations made under sub-section 66(1) of the MV Act. It

provides that “drivers’ licenses shall be classied according to the type of

vehicle operated. This regulation also provides eligibility and other 13

requirements for getting the specic driving licence. Requirements

under this regulation also emphasise on training, screening test,

medicinal test certain years of experience before getting aheavy vehicle

or commercial licences. It excludes persons suffering from certain

diseases like eye disease, hypertension resulting in giddiness, myocardial

infections, angina pectoris, and other diseases from getting such licences.

This creates a hardship to certain persons to get proper driving licences.

This is also theimportant reason of corruption in getting heavy vehicle

licences in India. So, the excessive regulatory requirements force the

drivers, which are mostly from of poor family to either use inappropriate

driving licences or fake driving licences. With rampant corruption in

motor vehicle departments of different states, use of fake and

inappropriate driving licences have emerged as evil. However, the use of

such fake and inappropriate licences are only questioned when the

vehicle met with accidents and a case for compensation is led.

III Liability of insurance company

MV Act clearly mandates for taking third party insurance. Sec 146 of this

Act “No person shall use, except as a passenger, or cause or allow any

other person to use, a motor vehicle in a public place, unless there is in

force in relation to the use of the vehicle by that person or that other

person, as the case may be, a policy of insurance complying with the 14

requirements of this chapter.” The third party is being indemnied by

sec.147(5) of this Act. It provides that “Notwithstanding anything

contained in any law for the time being in force, an insurer issuing a

policy of insurance under this provision shall be liable to indemnify the

person or classes of persons specied in the policy in respect of any

12 See, Classication of Drivers’ Licenses Regulations as per s. 66(1) of the Motor Vehicle Act.13 Ibid.14Id,at s. 146.



liability which the policy purports to cover in the case of that person or 15those classes of persons.”

Sec. 149 of this Act provides for the defences, which they can take in the

event of an accident by the insured vehicle. Sec. 149 (2) a sub-clause (ii)

provides that “no sum shall be payable by an insurer under sub-section

(1) in respect of any judgment or award unless, before the

commencement of the proceedings in which the judgment or award is

given the insurer had notice through the court or, as the case may be, the

Claims Tribunal of the bringing of the proceedings, or in respect of such

judgment or award so long as execution stays thereon pending an appeal;

and an insurer to whom notice of the bringing of any such proceedings is

so given shall be entitled to be made a party thereto and to defend the

action on any of the following grounds, namely: a condition excluding

driving by a named person or persons or by any person who is not duly

licensed, or by any person who has been disqualied from holding or 16

obtaining a driving licence during the period of disqualication.”

So, the provision clearly mandates for excluding duly licensed aperson or

the person who is disqualied from holding driving licences. Naturally,

the insurance companies are using this provision against the claimant in

different cases. Wherever, the case of inappropriate or fake driving

licence is present, the insurance companies are raising it as astatutory

defence for completely denying their liability.

IV Judicial interpretations

The contract of insurance being the specic contract and law is very clear

on this matter. It is difcult for the court to deny prima facie the

provisions above said. Particularly, sec. 149(2) (a)(ii) of the MV Act

gives a right to the insurer to take a defence that person driving the vehicle

at the time of the accident was not duly licensed. In other words, sec. 149

(2) (a) (ii) puts a condition excluding driving by any person who is not

duly licensed. However, motor accidents cases are an example of

15Id,at s. 147(5).16Id,at s. 149(2) a sub clause (ii).

55

benecial legislation dealing with the tragic incidence of road deaths, so

the courts have developed a balanced approach to deal with this issue.

17In the case of National Insurance Company v. Kusum Rai it was held

that:

If the vehicle is a taxi which is being driven by a driver holding licence for

driving Light Motor Vehicle only without there being any endorsement

for driving transport vehicle, the Insurance Company cannot be ordered

to pay compensation.

18In the case of New India Assurance Co. Ltd., Shimla v. Suraj Prakash , it

was held that:

The vehicle involved in an accident was ataxi, a public service vehicle.

But the licence issued in favour of the driver was to ply light motor

vehicle and there was no endorsement to drive atransport vehicle. It was,

therefore, held by the High Court that the Insurance Company cannot be

saddled with the liability to pay compensation to the claimant. There too,

the claimant placed reliance on Ashok Gangadhar. The Court, however,

distinguished it observing that ‘there was neither any evidence therein

nor was there any claim for aninsurer that the vehicle concerned therein

was having a permit for goods carriage or that it had a permit or

authorization for plying the vehicle as a transport vehicle.

19In the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan ,

it was held that:

If a truck driver leaves the truck with engine in motion after handing over

the truck to cleaner who was not a duly licensed person who drives the

truck which causes an accident, it cannot be contended by the Insurance

Company that it would not be liable to pay compensation to a third party

who sustains injury because of the accident.

17 (2006) 4 SCC 250.18 AIR 2000 HP 91.19 (1987) 2 SCC 654.



20In the case of New India Assurance Co. Ltd v. Prabhu Lal , where at the

time of the accident, the heavy vehicle was driven by Ram Narain,

brother of the complainant. Admittedly, Ram Narain possessed a licence

to drive an LMV and not an HMV. It was held that on the basis of the

evidence adduced by the insurance company, the complainant was not

entitled to claim any compensation from the insurance company and

insurance company cannot be held liable. However, in series of cases the

Supreme Court held that not having the appropriate or having fake

driving licence will not absolve the insurer from the liability.

In the case of Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd,

the Supreme Court held that sec. 3 of MV Act mandates for the necessity

for driving licence. This provision uses two expressions, namely, ‘motor

vehicle’ and ‘effective driving licence’. ‘Effective’ would mean a valid

licence both as regards the period and type of vehicle. Further, under sec.

66 of the Act falling under this chapter no owner of a motor vehicle shall

use or permit the use of the vehicle as a transport vehicle in any public

place whether or not such vehicle is actually carrying any passenger or

goods except in accordance with the conditions of permit granted by the

prescribed authority authorising the use of the vehicle in that place in the

manner in which the vehicle is being used. However, in this case, the

driver was holding aneffective valid licence on the date of the accident to 21

drive light motor vehicle.

22In the case of National Insurance Company Limited v. Swaran Singh ,

where the question was to determine the liability of insurer in the cases of

(a) driving licence produced by the driver or owner of the vehicle was a

fake one; (b) driver did not have any licence whatsoever; (c) licence,

although was granted to the concerned driver but on expiry thereof, the

same had not been renewed;(d) licence granted to the drivers being for

one class or description of vehicle but the vehicle involved in the accident

was of different class or description, and (e) the vehicle in question was

20(2008) 1 SCC. 696.21(1999) 6 SCC 620.22AIR 2004 SC 1531.

57

driven by a person having a learner’s licence. It was held by the Supreme

Court that:

If a person has been given a licence for a particular type of vehicle as

specied therein, he cannot be said to have no licence for driving another

type of vehicle which is of the same category but of adifferent type. As for

example when a person is granted a licence for driving a light motor

vehicle he can drive either a car or a jeep and it is not necessary that he

must have driving licence both for car and jeep separately. Furthermore,

the insurance company with a view to avoiding its liabilities is not only

required to show that the conditions laid down under sec. 49(2)(a) or (b)

are satised but is further required to establish that there has been a

breach on the part of the insured.”

So, the court held that for a fake driving licence , the insurer is to establish

wilful breach on the part of the insured and not for the purpose of its

disentitlement from raising any defence or the owners be absolved from 23any liability whatsoever.

Further, with the cases of no driving license or inappropriate driving

license , it was held that the insurer has to establish the wilful breach of

the conditions. If the owner is aware of the situation then the owner is

responsible, otherwise, insurer is liable. However, it was held by the court

that insurer can recover the money from the owner or the driver in the

case of wilful breach of the conditions. So, it was held that “mere

absence, fake or invalid driving licence or disqualication of the driver

for driving at the relevant time, are not in themselves defences available

to the insurer against either the insured or the third parties. To avoid its

liability towards insured, the insurer has to prove that the insured was

guilty of negligence and failed to exercise reasonable care in the matter of

fullling the condition of the policy regarding use of vehicles by duly

licensed driver or one who was not disqualied from driving at the 24relevant time.” Accordingly, the court has decided against the insurance

company.

23Supra note 22.24Ibid.



25In the case of New India Assurance Company, Shimla v. Kamla , a fake

licence had happened to be renewed by the statutory authorities and the

question arose as to whether Insurance Company would be liable to pay

compensation in respect of motor accident which occurred while the

vehicle was driven by a person holding such a fake licence. Answering

the question, this Court discussed the provisions of sec.146, sec.147 and

sec. 149 of the Act .

In the case of Pepsu Road Transport Corporation v. National Insurance 26Company , again this question was raised that whether the Breach of

conditions under sec. 149(2)(a) of the Motor Vehicles Act, 1988 absolves

the insurer of its liability to the insured. Sec. 149(2)(a)(ii) deals with the

conditions regarding driving licence. In case the vehicle at the time of the

accident is driven by a person who is not duly licensed or by a person who

has been disqualied from holding or obtaining a driving licence during

the period of disqualication, the insurer is not liable for the

compensation. In this case, the driver allegedly possessing only a fake

driving licence. The Supreme Court referred the cases of Skandia and 27

Sohan Lal Passi and held that:

The breach must be on the part of the insured. We are in full agreement

with that. To hold otherwise would lead to absurd results. Just to take an

example, suppose a vehicle is stolen. Whilst it is being driven by the thief

there is an accident. The thief is caught and it is ascertained that he had no

licence. Can the Insurance Company disown liability? The answer has to

be an emphatic ‘no’. To hold otherwise would be to negate the very

purpose of compulsory insurance. The injured or relatives of the person

killed in the accident may nd that the decree obtained by them is only a

paper decree as the owner is a man of straw. The owner himself would be

an innocent sufferer. It is for this reason that the Legislature, in its

wisdom, has made insurance, at least third party insurance, compulsory.

25(2001) 4 SCC 342.26 2013(10) SCALE 663. 27Ibid.

59

The aim and purpose being that an insurance company would be

available to pay.

It was further observed by the court thus-

The business of the company is insurance. In all businesses, there is an

element of risk. All persons carrying on business must take risks

associated with that business. Thus it is equitable that the business which

is run for making prots also bears the risk associated with it. At the same

time, innocent parties must not be made to suffer or loss. These

provisions meet these requirements. We are thus in agreement with what

is laid down in aforementioned cases viz. that in order to avoid liability it

is not sufcient to show that the person driving at the time of the accident

was not duly licensed. The insurance company must establish that the 28

breach was on the part of the insured.

29In United India Insurance Company Limited v. Lehru and Others , it was

held that:

The insurance company cannot be permitted to avoid its liability only on

the ground that the person driving the vehicle at the time of theaccident

was not duly licensed. It was further held that the willful breach of the

conditions of the policy should be established. Still further it was held

that it was not expected of the employer to verify the genuineness of a

driving licence from the issuing authority at the time of employment. The

employer needs to only test the capacity of the driver and if after such test,

he has been appointed, there cannot be any liability on the employer. The

situation would be different when the employer was told that the driving

licence of its employee is fake or false and yet the employer not taking

appropriate action to get the same duly veried from the issuing

authority.

It was further held that-

When an owner is hiring a driver he will, therefore, have to check whether

the driver has a driving licence. If the driver produces a driving licence

28Supra note 26.29(2003) 3 SCC 3384.



which on the face of it looks genuine, the owner is not expected to nd out

whether the licence has in fact been issued by a competent authority or

not. The owner would then take the test of the driver. If he nds that the

driver is competent to drive the vehicle, he will hire the driver. We nd it

rather strange that insurance companies expect owners to make enquiries

with RTOs, which are spread all over the country, whether the driving

licence shown to them is valid or not. Thus where the owner has satised

himself that the driver has a licence and is driving competently there

would be no breach of sec. 149(2)(a)(ii). The Insurance Company would

not then be absolved of liability. If it ultimately turns out that the licence

was fake, the insurance company would continue to remain liable unless

they prove that the owner/insured was aware or had noticed that the

licence was fake and still permitted that person to drive. More

importantly, even in such a case, the insurance company would remain

liable to the innocent third party, but it may be able to recover from the 30

insured.

31In the case of National Insurance Corporation Ltd.v. Mrs Kanti Devi ,

where it was alleged that the driver did not possess a valid driving licence,

as the driving licence authorised driving of light motor vehicles (private),

while thedriver was driving a transport vehicle (Tata Truck-407). The

Supreme Court held that-

It may be true as has been contended on behalf of the petitioner that a fake

or forged licence is as good as no licence but the question herein, as

noticed hereinbefore, is whether the insurer must prove that the owner

was guilty of the wilful breach of the conditions of the insurance policy or

the contract of insurance. In Lehru’s case, the matter has been considered

in some detail. We are in general agreement with the approach of the

Bench but we intend to point out that the observations made therein must

be understood to have been made in the light of the requirements of the

law in terms whereof the insurer is to establish wilful breach on the part of

30Supra note 29. 31(2005)5 SCC 789.

61

the insured and not for the purpose of its disentitlement from raising any

defence or for the owners to be absolved from any liability whatsoever.

This Court, however, in Lehru must not be read to mean that an owner of a

vehicle can under no circumstances have any duty to make any enquiry in

this respect. The same, however, would again be a question which would

arise for consideration in each individual case.” So, the court did not

accept the arguments of the insurer.

In the case of Oriental insurance company v. Angad Kol , where the 32

contention was raised with respect to inappropriate driving license of the

driver, it was held that the insurance company to deposit the balance

amount before the Tribunal with liberty to the claimants to withdraw the

same give right to the appellant to recover the said amount from the

owner and the driver of the vehicle.

33In the case of S.Iyyapan v. United India Insurance Company , where it

was challenged that the driver of the vehicle was not having the driving

licence on that day, It was held by the supreme court that “even where the

insurer is able to prove breach on the part of the insured concerning the

policy condition regarding holding a valid licence by the driver or his

qualication to drive during the relevant period, the insurer would not be

allowed to avoid its liability towards the insured unless the said breach or

breaches on the condition of driving licence is/are so fundamental as are

found to have contributed to the cause of the accident. The Tribunals in

interpreting the policy conditions would apply “the rule of themain

purpose” and the concept of “fundamental breach” to allow defences

available to the insurer under sec. 149(2) of the Act.” Finally, it was held

that “the driver was holding a valid driving licence to drive light motor

vehicle. There is no dispute that the motor vehicle in question, by which

accident took place, was Mahindra Maxi cab. Merely because the driver

did not get any endorsement in the driving licence to drive Mahindra

Maxi Cab, which is a light motor vehicle, the High Court has committed

grave error of law in holding that the insurer is not liable to pay

322009 ACJ 1411.33(2013) 7 SCC 62.



compensation because the driver was not holding the licence to drive the 34commercial vehicle.”

V Motor Vehicles Amedment Bill, 2016 vis-a- vis the liabilty

of insurer with respect to fake and inppropriate driving licences

The said Bill provides for standards for motor vehicles, grant of driving

licenses, and penalties for violation of these provisions.

(a) Under proposed sec. 66 of the Act, National Trasportaion Policy is

proposed to establish framework for passenger and goods

transportation within which transport bodies are to operate and to

establish the framework of grant of permits and schemes.

(b) Amended sec. 8 of the Act proposes the procedure for obtaining a

learner’s licence. It seeks to enable an applicant to apply to any

licensing authority in the State, to use online means to submit the

application, fee and other documents, and allow the government

exibility in determining the eligibility to obtain a learner’s licence.

It also seeks to provide for the issue of a learner’s licence in

electronic form.

(c) New sec. 25A is added to deal with the problems of using driving

licenses of one state into the other state . It provides for the

establishment of a National Register of Driving Licences

containing data on all driving licences issued throughout India and

facilitate the grant of licences in a transparent and efcient manner.

It also seeks to enable the State Governments to transmit all

information contained in the State Register of Driving Licences to

the Central Government and to update the National Register in a

manner to be prescribed by the Central Government. This will help

in ghting with the problems of fake driving licenses to a

considerable extent.

(d) Under sec. 164B of the Act provides for the establishment of the

Motor Vehicle Accident Fund regarding compulsory insurance of

34Decided by the Supreme Court on 1 July, 2013, Avaialable at:

judis.nic.in/supremecourt/chejudis.asp. (Last visited on Sept.12, 2016).

63

all road users for the purposes of emergency medical treatment for

victims of road accidents. The Fund may also be utilised for the

purposes of providing compensation to the victims of road

accidents and their families.

(e) Liabilty from the insurance companies is being shared with owner

and driver of the vehicle. UnderaAmended sec. 164, the owner or

driver of the vehicle is also required to contribute the amount on the

basis of a structured formula.

So, in nutshell, it can be said that an attempt has been made under this bill

to ll the lacunas in the existing system by use of technology.

However, with respect to determination of liability the previous

interpretations of the law made by the various court is still relevant.

VI Conclusion

From the above analysis it is clear that the Supreme Court has interpreted

the provisions considering the basic reality that after the road accident,

only the insurance company is in aposition to pay substantive

compensation. The present Bill tries to ll the gap by providing the

proper system of driving licencses and their proper use. However, after

passing this a law, it will take a few years in making it a reality. With

respect to the compensation, the new bill tries to put the onus on the driver

and the owner under a structured formula. This provision is good for the

insurance company but in actual use, it will be very difcult to recoverth

the money from the drivers and the vehicle owners. So, the absence of

driving license , fake or inappropriate driving licence or disqualication

of the driver for driving at the relevant time are not in themselves

defences available to the insurer against either the insured or the third

parties. If the defence under the said provision is taken then onus to prove

would lie upon the insurance companies. Even under the present bill , no

relaxtion has been given to the insurance companies. So, the insurer is

required to prove the wilful breach of the condition, which is very

difcult in practice. Now apart from proving the wilful breach in not

having adriving license, or having fake or inappropriate driving license, it



has to be proved that wilful breach isfundamental to the contract of

insurance. Even after proving this, the insurer is just having the right of

recovery from the owner of the vehicle or the driver. Creating a seprate

fund for dealing with motor accidents cases is a welcome step. However,

the liability of the insurance companies for the use of fake or

inappropriate driving licnese has to be detrmined as per the judicial

interpetaitions evolved in the said cases.

65

DECRIMINALIZATION OF ATTEMPT TO SUICIDE: A MOVE

FROM RETALIATION TO REHABILITATION

*Rituraj Sinha

*Sonali Roy Choudhury*

Abstract

Section 309 of the IPC lays down the punishment for attempt to suicide. According to it,

whoever attempts to commit suicide and does any act towards the commission of such

offence shall be punished with simple imprisonment for a term which may extend to one year

or with ne or with both. From the language of the section it is clear that suicide is obviously

no crime under the Indian Penal Code, it is only attempt to commit suicide that is punishable.

It is a highly insensitive provision that gives an option to a person to die successfully or be

prosecuted. There seems to be a logic behind this punitive provision as life of a person is not

only valuable to him but for the State also. It is an obligation on the State to save the life of

every person and does not allow any one including him to take one’s life. From the last few

decades there has also been a debate on the criminal nature of the provision dealing with an

‘attempt to suicide’ under section 309 IPC.

Various reports, recommendations, judgments of the Supreme Court and statutes dealing

with health have triggered the debate over the issue. It started many years back but recently it

got a new height when on December 10, 2014, India’s Ministry of Home Affairs announced

in a press release regarding its decision to decriminalize attempt to suicide by repealing

section 309 IPC. Another important step which clears the intention of the Government is the

preparation of a draft Bill titled ‘Terminally Ill Patients (Protection of Patients and Medical

Practitioners) Bill’ on passive euthanasia that gives patients the right to ‘withhold or

withdraw medical treatment to herself/ himself’ and ‘allow nature to take its own course’. In

a society moving towards modernization and globalization and where everyone has started

talking much on quality of life, this question is remains debated: whether section 309 IPC

should be decriminalize? The authors through this paper cover the debate on the merits and

demerits of the bold intention of the government to decriminalize an attempt to suicide with

the background of step towards reformation from retaliation.

I Introduction

LIFE IS something which can be described as a gift of God and can be

given to us only by Him. Hence, we cannot claim any right to take away

such life and that too sometimes one’s own. Suicide, therefore, has

become a part of an unending controversial and debatable issue since

time immemorial. Not only in the modern society but also in the past

* Assistant Professor, Amity Law School, Noida** Assistant Professor, Amity Law School, Noida

Decriminalization of Attempt to Suicide: A Move from Retaliation to Rehabilitation


there were several social players including religion, monarchy, and

colonialism which have condemned and prohibited suicide. Suicide is

dened as death caused by self-directed injurious behaviour with intent

to die as a result of the behaviour. This makes it a unique and peculiar

crime in the Penal Code, where both the accused and victim is the same

person. It may also be dened as a purposeful termination of one’s own

physical existence or self-murder. It is an act of voluntarily or 1intentionally taking one’s own life. Therefore, an attempt to suicide is

treated as a grave hitch requiring mental health interventions. From the

last few decades there has been a debate on the criminal nature of the

provision dealing with an ‘Attempt to Suicide’ under section 309 IPC.

Many times the debate revolved around the sentimental and religious

reasons behind it and as a result, it is still treated as a criminal offence

under section 309 of the IPC. Thus, section 309 of the IPC is a highly

insensitive provision that gives an option to a person to die successfully

or be prosecuted.

Before going further into the debate, it is imperative to discuss here the

nature and scope of section 309, IPC. It says that a person, who makes an

attempt to suicide and fails, will face an imprisonment for up to a year or a

ne or both. The offence of ‘attempt to suicide’ is treated as a cognizable

offence. This gives the power to a policeman to go to the hospital where

the individual who attempted suicide is recovering, arrest him and put

him through the torture of criminal proceedings at a time when he is

already emotionally fragile. In a civilized society one cannot digest this

abuse of human autonomy where you are punishing a person who has

attempted suicide and is already emotionally fragile. As the largest

democracy in the world, and as one of the most stable regimes in South

Asia, India has the moral responsibility to pave way for legal reforms.

The opening of the way for the legal reforms started many years back but

recently it got a new height when on December 10, 2014, India’s Ministry

of Home Affairs announced in a press release regarding its decision to

1 th Law Commission of India, 210 Report on Humanization and Decriminalization of Attempt to Suicide, 2008.

67

decriminalize attempt to suicide by repealing section 309 IPC. The

decision of the government to decriminalize it came after six years of the

recommendation of the Law Commission of India in a number of their

previous reports. In 2008, the Commission described the law as

“anachronistic” and argued that attempted suicide was the

“manifestation of a diseased condition of mind deserving treatment and 2care rather than an offence to be visited with punishment”. As the

Constitution of India, law and order is a State subject, views of

States/UTs were asked on the recommendation. Barring few, as much as

18 States and 4 Union Territories favoured the recommendation and

voted for the decriminalisation of section 309 IPC. However, states like

Bihar, Madhya Pradesh and Delhi opposed the recommendation and

advised not to scrap the provision. Citing example of suicide bombers,

Bihar government told the Home Ministry that the provision will help to

prosecute them if they fail in their attempt to blow themselves up and

other terrorists also who consume cyanide pills with the intention to wipe

out evidence.

The debated has to seen as a hard-to-win match between the traditional

approach and the modern approach. At the outset it seems that it is

inhuman to punish such a person who is vulnerable and is already going

through an emotional and mental turmoil. This approach has got much

favour for the scrapping of the provision and to make our penal code more

humane. The person needs counselling, better treatment, therapy and

rehabilitation, not jail.

The authors through this article covers the debate on the merits and

demerits of the bold intention of the Government to decriminalize an

attempt to suicide. From euthanasia to suicide bombers, terrorists and

silent protesters, the proposal has given heat to all the pending

discussions.

2 Available at: http://lawcommissionondia.nic.in/reports/report210.pdf (last visited on April 15, 2016).



II Penal provision of suicide under IPC

Every day when a newspaper is opened or while watching a news

bulletin, it is seen that there is at least one incident of suicide or attempted

suicide that has been reported. It is a common incident which takes place

every day and affects the people of all classes throughout the globe.

However, it is not dened anywhere in the Indian Penal Code, 1860. It

may briey be dened as an act of self-inicted, self-intentioned 3cessation. It is a wilful and voluntary act of a person who understands the

physical nature of the act, and intends by it to accomplish the result of 4self-destruction. It has also been dened by various sociologists and

psychologists in different ways. Some of the denitions are ‘suicide is the

initiation of an act leading to one’s own death’. It is synonymous with

destruction of the self by the self or the intentional destruction of one’s 5self. Accordingly suicide can be dened as killing oneself intentionally

in order to renounce his life and to leave the world. The Oxford

Companion to Law explains it as ‘self killing or taking one’s own life’.

According to a French sociologist Emile Durkheim, ‘The term suicide is

applied to all cases of death resulting directly or indirectly from a positive

or negative act of the victim himself, which he knows will produce this

result.’

In 1968, the World Health Organisation dened suicidal act as ‘the injury

with varying degree of lethal intent’ and that suicide may be dened as ‘a

suicidal act with fatal outcome’. Suicidal acts with non fatal outcome are 6labelled by World Health Organisation as ‘attempted suicide.’

In India, attempt to commit suicide is made punishable under section 309

of the IPC which provides for a maximum punishment of imprisonment

extendable to one year or ne or both. There seems to be a logic behind

this punitive provision as life of a person is not only valuable to him but

3 Encyclopaedia Britannica,383 (1973).4 Nimick v. Mutual Life Ins. Co., 10 Am. Law Reg. (N. S.) 101, Fed. Cas. No. 10, 266.5 Jack D. Donglas, The Social Meaning of Suicide (Princeton Univ. Press, New Jersey, 1967).6 Department of Mental Health and Substance Abuse, World Health Organization, Report: Preventing Suicide A Resource for Media Professionals (ISBN 978 92 4 159707 4).

69

for the State also. It is an obligation on the State to save the life of every

person and does not allow any one including him to take one’s life.

Section 309 of the IPC reads as:

“Whoever attempts to commit suicide and does any act towards the

commission of such offence shall be punished with simple imprisonment

for a term which may extend to one year or with ne or with both.”

From the language of the section it is clear that suicide is obviously no

crime under the Indian Penal Code, it is only attempt to commit suicide

that is punishable which means when a person is unsuccessful in

committing suicide only then the provisions of section 309, IPC are 7attracted. To elaborate, mens rea i.e. intention is treated as one of the

important elements for this offence. To make someone guilty for this

offence it becomes important to prove the intention behind the act to

commit suicide. The nature of the offence under the Indian Penal Code is

cognizable, bailable, non-compoundable and triable by a Metropolitan

Magistrate or any Magistrate.

From the above understanding regarding the nature and scope of section

309, IPC it becomes clear that a person who makes an unsuccessful

attempt to commit suicide would fall under the category of ‘Criminal’

and will be punished. It is done to a person who is highly depressed or

diseased or who has lost all hope to live. Rather in a civilized society like

us, he should be treated with sympathy and consolation. Therefore, in a

society moving towards modernization and globalization and where

everyone has started talking much on quality of life, this question is

always debated: Whether ‘right tor ife’ enshrined under the article 21 of

the Constitution of India includes ‘right to die’?

III Constitutional validity of Section 309 IPC

Traditional dimension

There is a fundamental question involved with the section 309, IPC and it

is answered with all the pressure of society. The question need to be

7 thPillai P. S. A., Criminal Law (9 Edition, Lexis Nexis, Butterworths, Nagpur).



answered with a balancing act between the pressure of the social and the

thoughts, emotions and ego within an individual attempting to commit

suicide. This leads us to a nal question: Whether ‘Right to Life’

enshrined under article 21 of the Constitution of India includes ‘right to

die’? If a person has right to live under article 21 of the Constitution, the

question is whether he has a right not to live. There have been cases,

which have varied on the basis of right to life and right to die.

The question regarding the validity of section 309, IPC was raised rst in

a leading case of Bombay High Court in Maruti Shripati Dubal v. State of 8Maharashtra in 1987. In this case, the court treated Section 309, IPC as a

cruel, irrational provision and struck it down. It also opined that it is utra

vires of the concepts enshrined under articles 14, 19 & 21 of the

Constitution of India. According to the court, a number of suicides are

condemned and some are raved about but the section treats all of them

equal and is, therefore, arbitrary and violative of article 14. The section is

further violative of article 19 as the right enumerated in this article can be

only enjoyed by a living person. It also violates ‘right to life’ under article

21. Right enshrined under article 21 is treated as a positive right. It

includes ‘Right to Die’ and thus gives a person the right to die if he/she

desires. PB Sawant J. observed that in no case does the punishment serve

the purpose and sometimes is bound to prove self-defeating and counter-

productive.

Similar question regarding the constitutional validity of section 309 was

raised before the Andhra High Court after Bombay High Court. Unlike

Bombay High Court, this court gave the opposite reaction towards the

question of validity. The Andhra Pradesh High Court in Chenna 9Jagadeeshwar v. State of A.P. held that section 309 IPC is

constitutionally valid and thus not violative of articles 14, 19 or 21 of the

Constitution of India.

The above two judgments of different high courts led to the confusion

with regard to the question of constitutional validity of section 309 IPC.

8 1985 CrLJ 931.9 1988 CrLJ 549 (A.P.).

71

However, it did not last very long and the confusion was removed very 10soon by the Supreme Court of India in P. Rathinam v. Union of India. In

this case, the Supreme Court of India upheld the verdict given by Bombay 11

High Court in Maruti Shripati Dubal v. State of Maharashtra. It opined

that a person has ‘Right to Die’ and therefore section 309 of the IPC is

void. It is further cruel, harsh and irrational and violative of article 21. It is

irrational and inhuman to force a person to enjoy his life even if he does

not desire to do so and therefore, the court observed that an individual

cannot be forced to live. The court was of the observation that a person

who is unsuccessful of committing suicide should not be punished or

prosecuted, as making him/her liable for punishment under this section,

the law and the world is not showing humanity towards him. Instead of

aiding the problems of an individual, an effort should be made to relieve

the problems by various other methods. The court thus upheld that ‘right

to life’ includes ‘right not to live a forced life’.

But later a ve-Judges Bench of the Supreme Court of India in Gian Kaur 12

v. State of Punjab overruled its own judgment in P. Rathinam v. Union of 13

India and held section 309, IPC is constitutionally valid. Considering

the importance of the issue involved senior advocates F. S. Nariman and

Soli Sorabji were invited to appear as amicus curiae.

The court observed:

‘Right to life’ guaranteed under article 21 of the Indian Constitution did

not include the ‘right to die’ or ‘right to be killed’ and therefore attempt to

commit suicide under section 309, IPC is within the constitutional

parameters and are not void or ultra vires. ‘right to life’ is a natural right

embodied in article 21 but suicide is an unnatural termination of life and

incompatible and inconsistent with the concept of ‘right to life’. The

‘right to die’ with human dignity’ cannot be construed to include within

10 1994 CrLJ 1605 (S.C.).11 Supra note 8.12 (1996) 2 SCC 649.13 Supra note 10.



its ambit ‘the right to terminate natural life’, at least before the natural

process of certain death.

Thus, the Supreme Court of India restores the constitutionality of section

309 through its judgement in the above case and thus opened the question

for discussion for the modern world where everyone is talking about the

‘decriminalization of section309, IPC’.

Modern dimension

‘Right to life’ guaranteed under article 21 of the Constitution of India is

considered to include duty to live and therefore, an individual has no right

to end his life. This statement sometimes lose its strict meaning, in case of

a dying man, who is, seriously ill or has been suffering from virulent and

incurable form of disease. This situation therefore becomes a category

where ‘right to die’ falls within the ambit of or becomes part of right to

life with dignity.

14In a landmark case of Aruna Ramchandra Shanbaug v. Union of India,

the apex court in 2011 opined that ‘the time has come when section 309

should be deleted by the Parliament as it has become anachronistic.’ The

main question for adjudication before the apex court was whether a

person who advertently refuses to accept lifesaving treatments or food in

order to die, commits a crime under section 309, IPC. In this case, Aruna

Shanbaugh, from Karnataka, was a junior nurse who was brutally raped

by a hospital ward boy further leading to major brain stem injury and

cervical cord injury apart from leaving her cortically blind. A petition was

led by Pinki Virani, a journalist and her friend, for allowing to

discontinue lifesaving treatment for Aruna Shanbaugh and to recognize

passive euthanasia in this particular case.

The apex court recognized passive euthanasia in this particular case and

gave its verdict on March 07, 2011 in its favour, which changed the entire

approach and became a landmark judgment. It not only allowed passive

euthanasia in certain circumstances but also out rightly rejected active

euthanasia for ending life through administration of lethal substances.

14 AIR 2011 SC 1290.

73

But the recognition was made on one major condition i.e. persistent

vegetative state or terminally ill. Therefore, to allow passive euthanasia

one has to be in persistent vegetative state or terminally ill. In order to

apply passive euthanasia to future cases, the Supreme Court opined that

the observation given in this particular case should now be treated as law

of the land until Parliament enacts a suitable legislation to deal with the

issue.

The Supreme Court Bench consisting of Markandey Katju and Gyan

Sudha Misra JJ also asked the Parliament to delete section 309, IPC as the

provision has become anachronistic and thus, further fuelled the debate

regarding the constitutional validity of the section.

Another recent development which marked a shift of approach

concerning the constitutional validity of the section 309 and supported

for the decriminalization of it is the new Mental Health Care Bill, 2013.

The bill was drafted on the background of need of a social model based

medical on human rights. This also makes it adherent to the principles of

the UN Convention on the Rights of Persons with Disabilities. The social

model of disability urges us to look beyond the issues of medical

treatment and disease, to the identication of the social barriers that deny

people with psycho-social disabilities the rights to employment,

education, recreation and even citizenship. That person driven to commit

suicide are, more often than not, facing mental health disorders and are in

need of care and treatment was suggested in the new Mental Health Care 15

Bill, 2013.

Out of the various provisions in the Bill, clause 124 has been widely

popularised due to its exemption of punishment for a person who has

attempted suicide. It provides that there shall be no prosecution of any

person who attempts to commit suicide if he/she has a mental illness

unless shown otherwise. Further, it also imposes duty on the government

15 The statements of objects and reasons to the Bill state the government ratied the United Nations Convention on the Rights of Persons with Disabilities in 2007. The Convention requires the laws of the country to align with the Convention. The new Bill was introduced as the existing Act does not adequately protect the rights of persons with mental illness nor promote their access to mental health care.



to provide care, treatment and rehabilitation to such person. The very

nature of the provision seeks to nullify section 309 IPC, which made the

attempt to suicide a criminal offence. However, the bill does not give any

guidelines on how care and treatment should be provided for such

vulnerable persons.

The verdict given by the Supreme Court in the case of Aruna 16

Ramchandra Shanbaug v. Union of India and Others also got the

support of various earlier reports of Law Commission of India. For thexample, in its 210 report on Humanization and Decriminalization of

Attempt to Suicide, the Law Commission of India treated section 309, 17

IPC as harsh and unjustiable and recommended its repeal . This was not

the rst time a report was submitted by Law Commission of India for nd

repealing the section. The second example is the 42 report submitted by

the Law Commission of India in 1971 on Indian Penal Code, in which the 18same kind of recommendation was proposed. Therefore, from many

years, even the Law Commission of India by its various reports, has

advocated for the decriminalization of the section 309, IPC for stopping a

person to be called as a criminal under it.

Very recently the Government of India has come up with a draft Bill titled

‘Terminally Ill Patients (protection of patients and medical practitioners)

Bill’ on passive euthanasia that gives patients the right to ‘withhold or

withdraw medical treatment to herself or himself’ and ‘allow nature to

take its own course’. It says that every competent patient, including

minors aged above 16 years, has a right to take a decision and express the

desire to the medical practitioner attending on her or him. The Bill

provides protection to patients and doctors from any liability for

withholding or withdrawing medical treatment and states that palliative

care (pain management) can continue. The draft also lays down the

process for seeking euthanasia, right from the composition of the medical

16 Supra note 14.17 Available at: http://lawcommissionondia.nic.in/reports/report210.pdf (Last visited on May 5, 2016).18 Available at: http://lawcommissionondia.nic.in/1-50/Report42.pdf (Last visited on May 5, 2016).

75

team to moving the high court for permission. The draft Bill has been

uploaded on the website of health ministry for the comments/ views/ 19suggestion till June 19, 2016. In the modern world, India should match

various developing and developed countries such as US, Canada,

England, where ‘Decriminalisation of Attempt to Commit Suicide’ has

already been done.

IV Decriminalization of attempt to suicide-the need of the hour

The debate over the issue is not new. It has puzzled the minds of social

scientists, philosophers and jurists since the beginning of the civilization.

Various reports, recommendations, judgments of the Supreme Court and

statutes dealing with health have further triggered the debate over the

issue. But recently the debate has gone to a new level due to the initiative

taken by our current hon’ble prime minister Narendra Modi. The

government is trying to ensure that people who are driven to kill

themselves do not end up in jail if they don’t succeed. This is not the rst

time that a government has thought of removing section 309 IPC. The

attempts and debate were done in the past also but this time a step forward

has been taken when India’s Ministry of Home Affairs on December 10,

2014 announced in a press release its decision to decriminalize attempt to

suicide by repealing section 309 of IPC and by uploading the draft bill

titled ‘Terminally Ill Patients (protection of patients and medical

practitioners) Bill’ regarding passive euthanasia on the website of the

Union Health Ministry.

Historically, suicide under section 309 was attached with the religion.

The control of religious institutions was inuential in determining the

legal stance supporting the criminalization of attempt to suicide. Suicide

has been known throughout the whole of recorded history and has been a

phenomenon in every culture and social setting even if most of the major

religions have opposed it. The common belief among Hindus is that a

person who commits suicide will not attain ‘moksha’. The Holy Bible

denies decent burial to a person committing suicide. According to the

19 Iyer Malathy, ‘Allow Passive Euthanasia? Centre Asks for Review’, Times of India, Delhi edition, May 16, 2016.



Jewish only God has this capacity; it is a capacity that no creature should 20attempt to achieve, let alone assume that that it already possesses. The

Quoran also considers suicide as more condemnable a sin than the killing

of others. However, these religious views and arguments did not work in

the modern society where everyone talks about human rights and right to

die. Even with attached religious sentiments, the act of attempting suicide th thhas been decriminalized in 19 and 20 centuries in various developed

and developing countries.

Therefore, the rst argument which comes in favour of the

criminalization of the act is based on the religious sentiments. It says that

the God has only the right and power to take life and those who takes life

on their own does some sinful act. Conversely, a verse from the Isavaya

Upanishad declares, ‘he who takes himself (his life) reaches after death,

sunless regions covered with darkness’; the common belief among

Hindus is that a person who commits suicide will not attain ‘moksha’.

Similarly, the Church did not always condemn suicide when, for

example, following some severe assault, such as rape, the victim took a

‘virtuous’ or honourable way out. But the reasoning behind these

religious sentiments clearly ignores the peculiarities of the social and

economic conditions of our country and the rapid increase in suicide rates

in general and that of dowry deaths in particular.

Another major argument for criminalization is the belief that law can act

as a deterrent against such attempts in the society. However, as per the

global data of suicide issued by World Health Organization, it is still not

clear whether it is acting as a deterrent or not. A report, rst of its kind,

was published by World Health Organization presenting a

comprehensive overview of suicide. According to the report, 258,075

people committed suicide in India in 2012, with 99,977 women and

158,098 men taking their own lives. India’s suicide rate was 21.1 per

100,000 people, highest in the World.

Another data released by the National Crime Records Bureau (NCRB) in

20 Available at: http://www.suicidereferencelibrary.com/test4~id~693.php (Last visited on May 5, 2016).

77

2014 shows that at least 15 suicides took place every hour in the country

in 2013, which saw over 1.31 lakh people ending their lives. Maharashtra

topped the list as a State and Chennai topped the list among the cities.

Therefore, these Data issued by different institution/organization does

not give any proof of the deterrent effect of the section 309, IPC. Whereas

on the other hand, certain data regarding rise in narcotic drug trafcking

offences, terrorism in different parts of the country, the phenomenon of

human bombs etc. have lead to a rethinking on the need to keep attempt to

commit suicide an offence.

21In State v. Sanjay Kumar Bhatia, the Division Bench of the Delhi High

Court observed:

‘The continuance of section 309 IPC is an anachronism unworthy of a

human society like ours…..the provision like section 309 IPC which has

no justication has no right to continue to remain on the statute book.’

V. S. Deshpande after his retirement as Chief Justice of Delhi High 22

Court, referring to what had been held by the Court in P. Rathinam v. 23Union of India, regarding the scope of article 21, took the view that if

Section 309 is restricted in its application to attempts to commit suicide

which are cowardly and which are unworthy, then only this section would

be in consonance with article 21, because, if a person having had no

duties to perform to himself or to others when he is terminally ill, decides

to end his life and relieve himself from the pain of living and the others

from the burden of looking after him, prosecution of such a person would

be adding insult to injury and it was asked : ‘Should a Court construe

section 309 IPC to apply to such cases?’

The debate can be based on some morality also where the rst question

comes: whether is it morally right to punish a person for an attempt to

suicide. Law and morality are two different things but it cannot be

ignored that morality cannot be totally detached from law. Law has been

21 1986 (10) DRJ 31.22 Deshpande VS “To be or not to be” SCC (Journal section) 1984; 3: 10 - 15 quoted in P. Rathinam v Union of India.23 Supra note 10.



evolved from the ashes of the morality. As a normal rule, every human

being has to live and continue to enjoy the fruits of life till nature

intervenes to end it. Death is also certain and is a fact of life. But if a

person has right to enjoy his life, he cannot also be forced to live that life

to his detriment, disadvantage or disliking. In such cases, it will indeed be

cruel not to permit him to die. Further those who see man as a free agent,

suicide become a moral right. Man’s life belongs to him, hence he is at

liberty to take it without denial and anybody’s interference. One best

example can be where a person refuses to give information to an enemy

camp in order not to endanger the lives of other and thereby killing

himself. This act is morally right where he opted to give away his life for

saving the life of others. In this regard eminent lawyer Ram Jethmalani

says “The right to die is a part of a wider concept of liberty. The whole

nation of the state controlling your life and death is grotesque.

V Conclusion

There can be no end to the debate of the Constitutional validity of section

309, IPC on account of the existing differences of opinion in religious,

social, cultural and legal aspects of the act to attempt suicide. However,

the time has come in the view of recent developments in different

jurisdictions to rethink about punishing the person attempting the

suicide. Our penal laws are the products of British who had made this

attempt an offence but it is frustrating to know that they themselves have

deleted this provision from their own law way back in 1961, whereas we

are still continuing it. It is not England only but many other countries like

Netherlands, Belgium, Luxembourg, Switzerland, Oregon and Canada

which has decriminalise suicide. In the phase of Global awakening, we

should not be the last country in the world to decriminalise the act. Laws

are made for the people and it should be change to meet the aims and

aspiration of the changing society. Ultimately, the aim should be to

evolve a consensual and conceptual model effectively handling the evils

without sacricing human rights.

79

24Today, the verdict given in Gian Kaur v. State of Punjab is followed

where the Supreme Court upheld the constitutional validity of Section

309 and held that it is not violative of any fundamental rights enshrined

under the Constitution of India. In order to make our IPC a modern penal

law, it is necessary to bring changes and amendments keeping in mind the

needs of the current day and age. Therefore, recent development made by

the Union Government for decriminalizing section 309, IPC should be

welcomed. These developments got the backing of 18 States and 4 Union

Territories of India. Even the Law Commission of India has

recommended for deleting the provision from the statute book as it

provides double punishment for a person who has already got fed up with

his own life and desires to end it and therefore, should be treated as

inhuman and anachronistic law. Therefore, the recent bill titled as

‘Terminally Ill Patients (protection of patients and medical practitioners)

Bill’ should be passed in the Parliament and become law as soon as

possible as it is already too late in comparison with the other developed

countries. This effort will further pave the way for the total

decriminalisation of section 309 IPC to make an easy journey towards

rehabilitative theory.

24 Supra note 12.



DOES PRIVATIZATION SERVE THE PUBLIC INTEREST? AN

ASSESSMENT OF THE RISKS AND BENEFITS OF PRISON

PRIVATIZATION

Prakash Sharma*

Abstract

This article explores one interesting nding emerging from various studies comparing

private and public distinction and their existence as on today particularly with respect to

correctional system. With the continuous rise of crime and inmates population, governments

in some part of the world are opting for privatizing criminal justice system—especially

prison. On one hand the proponents of privatization contend that private contractors,

unencumbered by government procurement and personnel procedures, can provide better

quality prison services at lower costs, on the other hand evidences are against the use of

privatization—essentially with respect to core functions of the State. While ndings do not

constitute an argument in favour of privatization, yet they provide an opportunity to be less

romantic about public sector values and practices, and be more circumspect about the

dangers of diminishing public accountability. The solution is to bring public norms in private

sphere.

I Introduction

WITH THE invention of modern technologies, development of new

powerful tools, discovery and exploration of rich new avenues, all

together and many more has ultimately led to an exciting new horizon of 1seeing the world with an expansive optimism about the future. The whole

prospect of telecom industry, aviation industry, and education industry

has changed dramatically over the past two decades, and the major

*Ph.D Scholar, Delhi University. The author acknowledges research assistance availed from Naveen Chandra Sharma, LL.M Student (2nd Year), Indian Law Institute.1 See Al Gore, Earth in Balance: Ecology and Human spirit (Houghton Mifin, Boston, 1992), and Al Gore, Our choice: A plan to solve the climate crisis, 254 (Rodale Books, Emmaus, 2009). It is stated that:“The speed which the global economy is revolving and the changes it has brought— have some deep impact on national policies, regional strategies—thanks to the much needed revolutionized technologically hyper connected, tightly integrated, and highly interactive world”. See Mancur Olson, The Rise and Decline of Nation: Economic Growth, Stagation, and Social Rigidities (Yale University Press, New Havens, 1982); to have a different opinion on the advancements see David C. Korten, When Corporations Rule the World (Kumarian Press, Bloomeld, 1995); David Rothkopf, Power Inc.: The Epic Rivalry Between Big Business and Government—and the Reckoning That Lies Ahead (Farrar, Strauss and Giroux, New York, 2012).

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changes have nothing to do with the recently imposed fees for checked

bags, blankets, or bottles of water. Instead, the main shift relates to the

transfer of ownership, be it aviation or telecom even education to the

private players. The most prophetic part of all this makes us believe to

realize a world that is shrinking rapidly with better transport and

communications facilities. The world is lled with many illustrations 2concerning private players and their role in the society. This has brought

along with it some disappointments and shortcomings. Of course, all of

the evidence is not on one side of the privatization debate. The expansion

of the private sector into prisons, for example, has generated considerable 3

controversy. The state, under which our prisons are, reects

disappointments thereby replacing hope with despair. Most countries,

particularly in the West have learned from their experiences to overcome

the shortcomings in the functioning of the correctional system within

2 Al Gore, The Future, xv (Random House Publishing Group Company, New York, 2013). See also Joseph S. Nye, Jr., The Future of Power (Public Affairs, New York, 2011). For illustrative views of founding fathers on corporations see Justin Fox, “What the Founding Fathers Really Thought about Corporations”, Harvard Business Review (2010).3 In USA there is huge market for private prison operators to not only treat inmates as a source of prot making but also lobby through inuential representatives to frame harsh laws, see C. Hartney, and C. Glesmann, Responding to the growth of the private prison industry in the United States (National Council on Crime and Delinquency, Oakland, 2011). Similarly in UK we have opened market for private players to operate correctional business, see Richard W. Harding, “Private Prisons”, in Michael H. Tonry (ed.), Crime and Justice: A Review of Research, 265-269 (University of Chicago Press, Chicago, 2001). Similarly in Australia efforts were made to transfer prison functions into the hands of private operators, see Richard W. Harding, “Private Prisons in Australia”, 36 Australian Institute of Criminology, 2 (May, 1992). In Canada, the rst and only privately run prison opened in Ontario in 2001. It is a ‘super-jail’, with a capacity of 1,184 inmates, which is run by the US-based Management and Training Corporation, see Other countries like Belgium, German, New Zealand, Chile, Meanwhile; South Korea’s ministry of corrections has invited religious groups as well as private companies to bid for a 300 bed prison management contract. And in Israel, long regarded by stock analysts as a potential market, the current minister of justice supports full privatisation of the prison service and the immediate establishment of private prisons. Further countries like Costa Rica, Lesotho, Lebanon, Thailand, the Netherlands and Venezuela are at various stages of feasibility studies or tendering processes while others, such as Poland, Malaysia and Hong Kong are closely watching developments, particularly in the UK, see See S. Nathan, Private Adult Correctional Facilities: Fines, Failures and Dubious Practices (April 2000), available at: http://www.opseu.org/ops/ministry/report/section1.html (Last accessed on October 03, 2016).

Does Privatization Serve the Public Interest? An Assessment of The Risks and Benets of Prison Privatization


their respective jurisdictions. However it’s not all bright picture as it

appears, there are certain concerns too. This paper will therefore assess

the risks and benets of prison privatization as it is been witnessed in

some other parts the world.

II The privatization debate

Privatization as it has emerged within the public sphere is not a clear and

absolute economic proposition, thereby covering a wide range of

different activities, all of which imply a transfer of the provision of goods

and services from the public to the private realm. Also privatization

means different things in different parts of the world—where both the

fundamentals of the economy and the purpose served by privatization 4

may differ on multiple counts. The poor nancial condition of the public

sector is often responsible for as much as more than one-half or all of the 5

outstanding domestic indebtedness. Various factors are involved for

such a state, however with the passage of time governments, due to

continued worsening of conditions, States have had no option but to sell

off public assets to raise cash. Budgetary shortfalls often induce

4 Richard L. Lippke, “Thinking about Private Prisons”, 16 Criminal Justice Ethics, 34-35 (1997). Also see Oliver E. Williamson, “Public and Private Bureaucracies: A Transaction Cost Economics Perspective”, 15 Journal of Law, Economics and Organisation, 306 (1990) holds objection to privatization and argues that choice to privatise prisons advances objectionable normative vision of the State. The core governmental functions must be retained with the government for the simple reason of larger public interest. Further few scholars feel that even though the powers are transferred to private actors they are subject to constitutional constraints. The European experience towards privatization is somewhat different to what has been experienced in US, see Stijn Claessens and Simeon Djankov, “Privatization Benets in Eastern Europe”, 83(3) Journal of Public Economics, 307-324 (2002), Stijn favours privatization on the basis of state owned enterprises rather than the US model of contracting out. See also Private contractors oftenly in US do escape the civil-service protection rule, besides conict of interest and ethics rules, which applies only to the public employers. See also Jack M. Beermann, “Administrative Law like Obligations on Privat[Ized] Entities”, 49 UCLA Law Review, 1717-1762 (2002) (courts in US though have evolved reasonable restrictions on private actors through evolving laws of tort, contract and public nuisance, which is hard to prove in courts, having reasonably high standards as compared to public actors).5 See Raymond Vernon (ed.), The Promise of Privatization: A Challenge for American Foreign Policy (Council on Foreign Relations, New York, 1988). See also Prakash Sharma and Gautam Gupta, “Pretentious Privatization: Public Law Limitation of Government Functions”, (forthcoming).

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administrators to consider privatization as a means to avoid higher taxes

or larger cuts in services. But is it the only reason for countries to opt for

privatization?

Surely there will be other reasons; one cannot discard the impact of

globalization. Market is taking control over functions necessarily meant 6

to be done by the State. There appear reasons and the most often cited 7

motivation for contracting out is to achieve operating cost savings,

followed with blocking of labour problems by weakening unionized 8government employees. Having said this, questions to creep in, do

private entities believe and bring competition into picture? And while

bringing competition, can the primary motto of prot gain be neglected?

Propounders argue that private enterprises will cut costs and improve

quality in an effort to gain prots and compete for more government

6 See Hans Lindahl, Fault Lines of Globalisation: Legal Order and the Politics of A-Legality 56,58 (Oxford University Press, Oxford, 2013); Gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford University Press, Oxford, 2012); Kai Moller, The Global Model of Constitutional Rights (Oxford University Press, Oxford, 2012), Jurgen Habermas, “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?”, 29(6) Political Theory 766-781 (2001). See also Oren Perez, “Using Private-Public Linkages to Regulate Environmental Conicts: The Case of International Construction Contracts”, 29(1) Journal of Law and Society, 84 (2002); Globalisation also posses numerous question to constitutional scholars, See Marcelo Neves, Transconstitutionalism (Hart Publishing Ltd., Oxford, 2013); Prakash Sharma and Manoj Kumar, “Globalisation, Indian Market and the Consumer”, 4(9) South Asian Journal of Marketing and Management Research, 31-42 (2014).7 John Vickers and George Yarrow, “Economic Perspectives on Privatization”, 5(2) Journal of Economic Perspectives 111-132 (1991). For constitutional limitations, see Prakash Sharma, “Prison Privatization: Constitutional Limitations on Privatization of Governmental Functions”, (forthcoming).8 J.D. Levy (ed.), The State after Statism: New State Activities in the Age of Liberalization (Harvard University Press, Cambridge, 2006). The paradox of the free economy and the strong state has made states power weakened and in favour of the large corporation, which has obtained an unprecedented degree of power and inuence. It has now become imperatively much clear that it is impossible to envisage an economy that is not dominated by giant rms and in which they are unable to translate economic power into a political inuence. This way governments cannot be trusted at least not when they will be and are responsive to the rms interests and needs, see C. Crouch, The Strange Non-Death of Neo-Liberalism (Polity Press, Cambridge, 2011). See also C. Jones and T. Novak, Poverty, Welfare and the Disciplinary State (Routledge, London, 1999); T. Jones and T. Newburn, Policy Transfer and Criminal Justice (Open University Press, Chichester, 2006); G, Johnstone, “Penal Policy Making: Elitist, Populist or Participatory”, 2(2) Punishment and Society, 161-80 (2000).



contracts. Government agencies, on the other hand, will pursue other

objectives, such as increased employment or improved working

conditions for government employees—initiatives that only result in

higher costs, poorer quality, or both.

Diminishing governmental control

Another concern while examining effect of privatization

is—government control. Privatization can simply reduce the size of the

government. Fewer government workers and fewer people supporting a

larger role for government would mean less of a drain on the nation’s 9budget and overall economic efciency. Over the years, propounders of

privatization have found sympathetic ears, thereby advocating for its role 10

in both public assets and public services since the late 1990s. Interesting

is to note the language used in its admiration, designed specically to

push the hot button of the average taxpayer (even government)—the

propounders claim numerous advantages of privatization. It is suggested

that the costs of government would be greater without privatization.

Thus, forming a t case for countries where many of the utilities and basic

industries are state-owned—a ripe target for privatization.

9 Privatization viewed as a process of reducing the size of the government, see Harvey B. Feigenbaum and Jeffrey R. Henig, “The Political Underpinnings of Privatization: A Typology”, 46 World Policy, 185-208 (1994), it was contemplated in the work that, ideologically privatization will systematically aims to lower peoples expectations, reduce public sector oversight, and transform the interest group landscape to make it less supportive of governmental growth. See also the process of privatization involving contracting out, incentives, principle agent relationship and there moral implications, see Antoine Faure-Grimaud and David Martimort, “On Some Agency Costs of Intermediated Contracting”, 71(1) Economic Letters, 75-81(2001); Pierre Picard, “On the Design of incentive Schemes Under Moral Hazard and Adverse Selection”, 33(3) Journal of Public Economics, 305-331 (1987); John Donahue, The Privatization Decision: Public Ends, Private Means (Basic Books, New York, 1989).10 See Parmanand Singh, “State, Market and Economic Reforms” 18 Delhi Law Review 100-10 (1996). See also S.S. Singh and Suresh Mishra, “State and Market: A constitutional Analysis”, 18 Delhi Law Review 46-55 (1996); A. Ahmad, Globalization and the Nation State, 44 (Eastern Book, Lucknow, 1996). See in Delhi Science Forum v. Union of India AIR 1996 SC 1356, wherein Indian Supreme Court held “Privatization is a fundamental concept underlying the questions about the power to make economic decisions…”

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11See Paul Starr, The Limits of Privatization (Economic Policy Institute, Washington, 1987). See also Michael J. Sandel, What Money Can’t Buy: The Moral Limits of markets 3-4 (Farrar Starus and Giroux, New York, 2012).

No srvice is immune

The privatization debate has made one thing clear; it has softened the

distinction between private and public domain. No service is immune

from privatization. World as a whole has accepted that a shift in

ownership or control from public to private hands will necessarily lead to

cheaper, better services for the citizens. How far has this benetted the

Indian society is debatable and would require another paper to dwell

upon. However, the prospect of private corporations owning and

operating prisons for adult offenders raises questions of costs and

competition.

While acknowledging that privatization may make sense on economic

grounds, the problems of insufcient competition and monitoring raise

some concerns. Who monitors the effects of private incarceration? What

standards are considered? What is required is a reasonable appraisal of

alternatives which needs to weigh concerns of justice, security, and 11citizenship. The concern of corrupt practices adds further doubts on

their involvement. But at this point it seems almost impossible to de-

couple privatization, since no service or sector is left immune from its

tableau. What seems logical is that privatization decisions should be

based on pragmatic analyses of whether ends can best be addressed by

public or private providers. The ends need not be limited to efciency;

they need only be clearly specied in advance.

III The blurred public-private distinction

Is there any clear cut distinction between a public and a private debate? In

the market economy the distinction has been blurred to the extent that

many of the public functions which were meant specically for the public

entities are now been taken care by the private corporations. Market has

actually dissolved this distinction, and even theorists and lawyers many a

times face notorious difculties in their efforts to draw the line between



12private and public. The prevailing approach amongst the market

believers is that there is no clear division, rather a mere continuum,

between private and public body. The same distinction which has no

normative basis is used merely for the purpose of descriptive in nature. In

the simpler words, the moment the State has to show its presence or claim

or acquire something, the issue of public-private creeps in and nothing

more.

Market sense of viewing society as buying chip or dollar sign will do no

good, in fact it would be worrisome schema which needs immediate

corrective manoeuvre. In terms of market an activity will be treated

private if it is free from all the limitations, for e.g. the employer is free to

employ his or her discretion regardless of the interests of others, and an

activity will be treated as public if the employer (generally State) is

subject to such limitations which compels it to consider the interests of

all. Therefore an activity which is subject to some limitations would

become public otherwise not. Market proponents believe that the

limitation on functions is not an important criteria of modern day

functioning of affairs—be it public or private. These contrasting claims

have made the distinctions blurred, so much so that for market, there

appears no distinction in the setup established by them and the one by the

State. However, this argument is loosely constructed in many senses,

rstly, the limitations imposed on State are not market specic or self

imposed (as it in the case of private corporations), besides do not hold the

view of few elites—but are commonly agreed upon, democratically

allowed and constitutionally approved limitations. Besides, it has the

backing from judiciary or else would be held unconstitutional. Secondly,

the source obtained for such a classication is Constitution of the land

12 See Duncan Kennedy, “The Stages of the Decline of the Public/Private Distinction”, 130(6) University of Pennsylvania Law Review, 1349-1357 (1982); Ruth Gavison, “Feminism and the Public/Private Distinction”, 45(1) Stanford Law Review, 1-45 (1992). Many a times the argument taken is with regards to the efciency, see Andrei Shleifer, “State Versus Private Ownership” 12(4) Journal of Economic Perspectives 133, 141-50 (1998), Andrei while analysing politics of government ownership and privatization notes that political considerations not only strengthen case for privatization, but in fact drive decision to privatise.

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and if not the Constitution then some other formally agreed upon laws,

accepted by all. Thirdly, the intent of public function is betterment of all

or for maximum number of people, whereas in the private sector, the

intent is prot making. Having said that, is there any private entity in this

world where the employees benet is taken as a prime concern? Answer

would be no, simply because motto is for the maximization of prot

(benet for the corporation) and not for the benet of society as such.

Even assuming that there exists no distinction between the two (public

and private) the need for publicization of privatization as a means of

incorporating public norms into private entities, explains that there is

distinction between the two and the need is to bring much of the public 13

norms in the private realm. Having said this, one would be in no

13 Jody Freeman, “Public Values in an Era of Privatization: Extending Public Law Norms through Privatization” 116 Harvard Law Review 1285 (2003). Jody suggests:Privatization can be a means of ‘publicization,’ through which private actors increasingly commit themselves to traditionally public goals as the price of access to lucrative opportunities to deliver goods and services that might otherwise be provided directly by the state.For further readings favouring such a step. See also Clifford J. Rosky, “Force Inc.: The Privatization of Punishment, Policing, and Military Force in Liberal States”, 36 Connecticut Law Review 969 (2004); Paul R. Verkuil, “Public Law Limitations on Privatization of Governmental Functions”, 84 North Carolina Law Review 397, 402-06 (2006); Jody Freeman, “The Private Role in Public Governance”, 75(3) New York University Law Review, 543-675 (2000), Jody argues that “no purely private realm and no purely public one…only the set of negotiated relationships between the public and the private.” For argument see J.M. Balkin, “Populism and Progressivism as Constitutional Categories”, 104 Yale Law Journal 1935-1969 (1995), Balkin says:The point is not to abolish the distinctions between the concepts like public and private power.…The goal rather is to understand these boundaries as more exible…it is a fool’s errand to think that we can abandon the distinction between public and private, between positive and negative liberty, or between government action and inaction. Whenever we attempt to cast those distinctions aside, they simply return in other forms. They are what I have called in other contexts nested oppositions; conceptual opposites whose intellectual coherence depends in an uncanny way on the existence of their opposite numbers.See also Michael Rosenfeld, “Rethinking the boundaries between public law and private law for the twenty rst century: An Introduction”11(1) International Journal of Constitutional Law, 125 (2013), Michael states The distinction between public law and private law has been both ever present and unwisely in civil law as well as in common law jurisdictions. Kelsen found the distinction useless for a general systematisation of law” and Paul Verkuil has remarked thatIf the law is a jealous mistress , the public-private distinction is like a dysfunctional spouse….It has been around forever, but is continues to fail as an organising principleSee Paul Vermeil, Outsourcing Sovereignty: Why Privatization of Government Functions threatens Democracy and What we can Do About it, 78 (Cambridge University Press, Cambridge, 2007).



confusion over the authority of law over the acts and duties of private

employee and a public employee. On liability and obligation, the public

sector is in a better position to compensate for any infringement of rights

on its part rather than the private employee. Further, there appears a

considerable amount of social and economic differences between

personals owned and services granted through a private entity than to the 14public. Nevertheless, the basic distinction is always left apart, and the

practical scenario makes it clear that privatization is spreading, and over

the course of time, who knows the public perceptions towards

privatization over the course of time do change too.

The argument of essentially core functions relates not just above all to

mere values. No amount of debate or evidence will change the minds of

those who see privatization as fundamentally objectionable on this basis

or for those who see privatization justied, irrespective of the values.

However, in the United States this debate has been lost; so much so that, it

has barely got off the ground and same would be lost in any country 15

where market has become the means as well the ends for the society. A

more productive line of analysis, for market propounders revolves

around the question of allocation and the administration of punishment,

where the issues are tangible and improved accountability through 16market is thought to be attainable. What they see is, so long as the

private prisons adopt a well dened correctional policy with sufcient

14 See Richard L. Lippke (1997), supra note 4 at 35, Richard favouring market ideology holds that Prisoners in private facilities may wonder whether what they are compelled to do is for their own good or is calculated to promote the bottom line of the corporations that own the facilities. In fairness, similar questions may arise within public prisons, since state-employed prison administrators and guards have interests of their own to protect. See also Ronald A. Cass, “Privatization: Politics, Law, and Theory” 71 Marquette Law Review 449-523 (1988), Ronald notes that while every State function or service much like in India, like housing, education, health care, policing, welfare, transportation, postal service, and dispute resolution—has a private counterpart, the law subjects only State actors to constitutional limits. The traditional justication for such a differential treatment is that government power is uniquely coercive.15 See Jody Freeman, supra note 13 at 1286.16 Susan Strange, The Retreat of the State: Diffusion of Power in the world Economy (Cambridge University Press, Cambridge, 1996), Susan argues that non state actors increasingly impinging upon traditional State domains.

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oversight through, both judiciary as well as the government, such

delegation seems unobjectionable to the constitutional norms. Further,

with the idea of governing through crime especially with a large

percentage of adults in correctional custody would be a serious risk,

especially in the era of signicant prison and police expansion, where

privatization on one hand do offer taxpayers some attractive cost savings 17options, while on the other hand the social security for many is snatched.

Of course, private prisons will offer a variety of options to the State—be

it alleviation of excess crowding in the prisons, competition to State run

prisons, better quality (in terms of technological advancements and

institutional functioning), better services and programmes, innovative

ideas and so on. But one cannot expect respect to basic human rights,

needs, values by a private corporation, who treats inmates as

commodities (nally of some value, otherwise thought as a burden for the

society as such).

IV Publicization of privatization

When prots overtakes values and surpass guarantees—both

constitutional and human—there needs some line to be drawn. Bringing

public values to private functioning is the answer to balance the approach

in which arguments for or against privatization can be settled. There is

neither a purely public nor a purely private realm, in fact both are

interdependent. Globalization is not merely a political decision, as many

proclaim it to be, it is also a solution or method of harmonising various 18

conicting interests. It entails specic types of work by a large number

of distinct institutions (corporations). In this section we will analyse

17 See David Scott, “Why Prison? Posing the question” in David Scott (ed.), Why Prison? (Cambridge University Press, New York, 2013) (Scott explains through his work the entire logic behind the need and usage of prisons in any country). See also Harold I. Abrasion, “A fth branch of Government: The Private Regulators and their Constitutionality”, 16 Hastings Constitutional Law Quarterly, 165 (1989), it is interesting to see a constitutional change and formation of international government. See also Louis Jaffe, “Law Making by Private Groups”, 51 Harvard Law Review 201 (1937); Jody Freeman, “Private Parties, Public Functions and the New Administrative Law”, in David Dyzenhaus (ed.), Recrafting the Rule of Law, 331-369 (Hart Publishing, Toronto, 1999).18 See Hans Lindahl, supra note 6 at 56.



whether publicization of privatization will be an answer to many

concerns posed by market economy.

In this globalised era, where market is taking control over functions

necessarily meant to be done by the State, the concept comes to a rescue.

Bringing market under the ambit of public laws draws efciency along

with accountability. Privatization can be a means of publicization

methods—especially considering the criminal justice system—through

which the private actors would commit themselves to traditionally public

goals as the price of access to lucrative opportunities to deliver goods and 19

services that might otherwise be provided directly by the State.

However, it is also possible to hold that we are dealing with a violation

that exceeds the scope of constitutional norms, based upon social

contract on which the existence of the State rests upon. Releasing the

State from the monopoly granted to it with regard to the use of force in

order public interest undermines the principles upon which the entire

social and constitutional foundations of the State rest. Public actors have

a duty to explain themselves, either through an administrative law (duty

to give reasons) or through statutes granting citizens access to 20information (like in India we have Right to Information Act, 2005).

Public actors in the India, United Kingdom and Canada do face

19 Jody Freeman (2003), supra note 13 at 1285. See also Clifford J. Rosky, supra note 13 at 969. See also Rachel C. B. Antonuccio, “Prisons for Prot: Do the Social and Political Problems have a Legal Solution?”, 33(2) IOWA Journal Corporation Law, 577 (2008). On discussion of self regulation see, Sam Scott Miller, “Self-Regulation of the Securities Markets: A Critical Examination”, 42(3) Washington and Lee Law Review, 853-887 (1985); Marianne K. Smythe, “Government Supervised Self-Regulation in the Securities Industry and the Antitrust Laws: Suggestions for Accommodation”, 62 North Carolina Law Review, 475 (1984). Analysing the short comings of self-regulation see, Neil Gunningham and Peter Grabosky, Smart Regulation: Designing Environmental Policy, 137 (Clarendon Press, Oxford, 1998).20 A classic example of incorporating democracy as a right is the formation of Right to information Act, 2005. For an extensive discussion of the implications of private provision for administrative law, see Jody Freeman (2000), supra note 13 at 664-73. Also see Ahmed A. White, “Rule of Law and the Limits of Sovereignty: The Private Prison in Jurisprudential Perspective”, 38 American Criminal Law Review, 111, 112 (2001)It is stated that:The intrusion of prot motives into management decisions is a pervasive problem with private prisons….it encourages not only the employment of under trained and disinterested employees but aggregate reductions in stafng—practises which in urn account in part of elevated levels of abuse, inmate-on-inmate violence.Clifford J. Rosky (2004), supra note 13 at 879, 903. Also see Jody Freeman, “Extending Private Law Norms Through Privatization”, 116(5) Harvard Law Review,1285-1352 (2003) (instead of seeing privatization asa means of shrinking government, its can be seen as a mechanism for government to reach into realms traditionally through private). See also M. Bovens, “Public Accountability.” in Ewan Ferlie, Laurence E. Lynn, Jr. and Christopher Pollitt (eds), The Oxford Handbook of Public Management, 7-26 (Oxford University Press, Oxford, 2005).

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constitutional constraints that private actors do not and it is on this basis

the access to information holds a limited play from a private entity as

compared to a public authority. Professor Minow considers it

fundamental that accountability be preserved in the presence of private

participation in public sectors; this will in turn promote a variety of other 21values like democracy, equality, and pluralism. Besides conning,

accountability with public actors in the process of administration of

market, would restrict involvement of certain matters which might be

found in the other countries, notably with regards with the considerations

of expediency in the timing or scope of remedy, but any such step would

involve great deal of risking populace.

At the same time, the public prison staff of countries like USA, UK,

Australia do not necessarily act as public in the strict-legal sense as 22compared to private prison staff, and thus the assumption that there is a

signicant difference in the prison guard’s actual motivations is

questionable in the present private or public debate. However, the only

concern in such a situation would be with regards to social benet

available with the public servants, whereas for a private 23servant—concerns are other than just monetary in nature. All

21 Martha Minow, Partners, not Rivals: Privatization and the Public Good 12 (Beacon Press, Boston, 2002).22 Both types of employees work to earn a living, both are interested in fullling their professional goals and developing their career, and both are interested in the success of their institution. Both public as well as private workers often earn on the basis of their achievements and classifying them as public rather than private is difcult in that basis. See See also Prakash Sharma, Prison Privatization: Exploring Possibilities in India (forthcoming). 23 Richard L. Lippke (1997), supra note 4 at 35. Prisoners in private facilities may wonder whether what they are compelled to do is for their own good or is calculated to promote the bottom line of the corporations that own the facilities. In fairness, similar questions may arise within public prisons, since state employed prison administration and guards have interests of their own to protect.”). See also Sol Picciotto, Liberalisation and Democratisation: The Forum and the Hearth in the Era of Cosmopolitan Post-Industrial Capitalism”, 63(4) Law and Contemporary Problems, 63, 157-159 (2000) (favouring privatization and holding the growth of new forms of regulation to the practise of privatization); Gary Peller, “Public Imperialism and Private Resistance: Progressive Possibilities of the New Private Law”, 73(4) Denver University Law Review, 1001, 1007 (1996). See Simon Domberger and Paul Jensen, “Contracting Out by the Public Sector: Theory, Evidence, Prospects”, 13(4) Oxford Review on Economic Policy, 67,68 (1997) (“Contracting out…. means opening up to competition a set of economic activities which were previously immune from it….The distinctive feature of contracting out is the element of ex ante competition—-competition for market as opposed to competition in it”). On the pervasive role of private parties in governance, see Werner Z. Hirsch, Privatising Government Services: An Economic Analysis of Contracting-Out by Local Governments, 24-25,128 (University of California, Los Angeles, 1991). See Tony Prosser, “Social Limits to Privatisation”, 21(1) Brooklyn Journal of International Law, 213-242 (1995), identies mechanisms such as licensing, rate regulation, and standard-setting as instruments of control over private rms. Focus rather on agency would be harmful and hence should be for the tools and technologies private entities apply, see Lester M. Salamon, “The New Governance and the Tools of Public Action: An Introduction”, in Lester M. Salamon (ed.), The Tools of Government: A Guide to the New Governance, 1-10 (Oxford University Press, New York, 2002).



employees of a corporation that operates a prison cannot be dened as

public servants, because they work for a private individual but a public

personnel works for the public; a private personnel is answerable to the

private individual but a public personnel is answerable to the constitution

of the land. They are legally required to respect rights of prisoners, and

may infringe upon such rights only as far as the public interest justies it;

even if the act is justied, he or she is answerable to courts for the same. In

essence, it can be realised that law does not grant any freedom to those

who work for a private corporation in comparison to the legal

requirement imposed on a prison guard who works in a public prison, but

one is answerable to constitutional courts in all occasion other only in

some limited occasions.

Accountability

Privatization may lead to the demand of greater public accountability

from the private entities (if taken in a healthy way), that are empowered to

implement governmental powers, as well as from those public ofces 24

that are in charge of guiding these entities and supervising them.

25In the words of Martha Minow, while explaining accountability, states:

Accountability in this sense means being answerable to authority that can

mandate desirable conduct and sanction conduct that breaches identied

obligations. In a democracy, the ultimate authority should be the general

population, organized as voters and served by elected representatives,

24 See Martha Minow, “Public and Private Partnerships: Accounting for the New Religion”, 116 Harvard Law Review, 1229-52 (2003). Minow states

“Whatever the normative limitation of the arguments favouring partnerships, the trend is undeniable. State, local, and federal governments are widely one. Skeptics should not simply decry this reality, but deal with it by demanding public.” Also see Connie Mayer, “Legal Issues Surrounding Private Operation of Prison”,

22 Criminal Law Bulletin 309-320 (1986).25 Martha Minow (2003), id. at 1236. Also see in favour of privatization, Daniel Guttman, “Public Purpose and Private Service: The Twentieth Century Culture of Contracting Out and the Evolving Law of Diffused Sovereignty”, 52 Administrative Law Review, 859, 879-81 (2000) (recounts privatization in US has made compliance with congressionally designated public purposes); Tony Prosser, “Public Service Law: Privatization's Unexpected Offspring”, 63(4) Law and Contemporary Problems, 63, 66-72 (2000) (discussing the development of independent regulatory authorities in UK, following the privatization of key utilities. Favouring Privatization in this process Tony holds that an emerging body of public service is formed where service standards and consumer protection obligations are imposed on private entities).

93

attorneys general, school boards, and tax enforcement agencies. To

satisfy the basic requirement of public oversight, government bodies that

use private means to fulll their obligations should evaluate those private

means and report on and take responsibility for the results. Thus, a

government that contracts with a corporation to run a prison or that

permits redemption of welfare vouchers through a religious charity

should be held responsible for the consequences resulting from such

contracts.

The exploration of accountability in such a way not only combines public

and private energies but also offers greater possibility of utilising

available resources will be a better approach. The true essence of

democracy lies in public involvement and accountability which can be

done only through public reporting. The major decisions about public

resources (even acquired by private entity), must be formed collectively

on the basis of experiences, with the knowledge and participation of the

citizens—then only the Constitution survives its true test for democracy,

equality. In India the endeavour to enhance the quality of the existing

prison administration deserves to go on with greater verve. Social audits

of private corporations by citizens, in whatever form they are designed, is

the need of the hour, especially if India opts for privatization of prisons

(which would be disastrous decision in every sense). The present state of

Indian prisons, only highlights stories of escape or proved corruption

among the jail staff, while nothing else is known to an average citizen (as

to the state of functioning of prisons). When the state of public

functioning is so disastrous, imagining it under a private operator will

bring nothing but goose bumps. There appears immediate need for

conducting tour of ordinary citizens to selective jails or prisons on

periodic intervals, which will highlight lacunas in the existing

functioning. There can never be a total cover up that distorts the 26fundamental realities of a prison setting in India. We see abuses in the

26R.K. Raghavan, “Private Prisons”, 29 (16) Frontline (August 11, 2012). For better understanding of fundamental realities in Indian prison system, see Prakash Sharma, supra note 22 at chapter 4. See , Shatrughan Chauhan v. Union of India 2014 (1) SCALE 437; Nilabati Bahera v. State of Orissa AIR 1993 SC 1960.



public system; would that mean this system is wrong of accountability?

No, accountability holds the only difference between private and public

functions (in modern global market economy system). Besides, the

relationship between crime and economics in the market world has not

hidden, which nds rise in incarceration rate as and when the process of 27criminal justice system is privatized. In India both public as well as

private entities are on the same footing of not accountable to general

masses but at least private players have to be accountable to the market, 28

or else lose its share. Public sector accountability is limited in that

regard. Further having seen the pervasive and varied role played by

private actors in all aspect of governance; need to relook into the aspect of

public-private debate. Private contributions to regulation range from the

merely advisory to the full edged assumption of policy making 29

authority.

The nal end for any institution like government is to maintain and

administer the existence of the body politic and also secure it; to protect

it, and to furnish the individuals who compose it with the power of

enjoying, in safety and tranquility, their natural rights and the blessings of

life; and whenever these great objects are not obtained, the people have a

right to alter the government and to take measures necessary for their

27 See Beverly A. Smith and Frank T. Morn, “The History of Privatization in criminal Justice”, in David Shichor and Michael J. Gilbert (eds.), Privatization in Criminal justice: Past, Present and Future, 3-17 (Sage Publications, Thousand Oaks, 2001).28 Martha Minow (2003), supra note 24 at 1263. Minow states “Private economic markets generate accountability through the operation of supply and demand, which tests the viability of ideas, products, and processes by their ability to attract and maintain a sufcient number of purchasers to meet costs and generate desirable prots.” See also Jonathan Morgan, “Liability for Independent Contractors in Contract and Tort: Duties to Ensure that Care is Taken”, 74(1) CambridgeLawJournal 109 -139 (2015). In US Courts have recognised implied private rights of action. See Richard B. Stewart and Cass R. Sunstein, “Public Programs and Private Rights”, 95(6) Harvard Law Review, 1193-1322 (1982). A strong case for bringing public norms into private realms would be protection against gaming and xing behaviour of independent contractors, John Braithwaite, “Rewards and Regulations” 29(1) Journal of Law and Society 12-26 (2002).29 See Douglas C. Michael, “Federal Agency use of audited self-regulation as regulatory technique, 47 Administrative Law Review, 171 (1995).

95

30safety, happiness and prosperity. Weaknesses in the accountability of

any private regime stems in the part from government failure. A private

system of working demands fullment of contractual obligations

between State and the private corporation. A contractual system of

administration relies much on the judicial administration of private

contract law at the charge of supervising agency rather than judicial

administration of administrative law doctrines at the command of private 31

citizens. One needs to understand that constitutional constraints along

with a detailed and imposing procedural laws do not govern private 32

decision making process. Therefore, the route required is to include

heightened judicial scrutiny to prevent any violation of inmates basic

rights besides the rights of prison personnels and the police system. Such

scrutiny may well result in not only invalidating specic actions taken by

a private corporation or requiring it to compensate those who were

subject to its misuse of force, but also in a review of the activities of the

supervising authorities. Moreover, in appropriate circumstances, when a

repeated practice of human rights violation is evident, there may be a 33basis for invalidating the privatization itself. Furthermore, private

corporations do have a primary goal of making prots; and saving money

in their operations becomes daily practise. This overtakes basic

30 John Adams, Preamble to a draft constitution for the Commonwealth of M a s s a c h u s e t t s , 1 7 7 8 . F u r t h e r r e a d i n g , a v a i l a b l e a t : home.hiwaay.net/~becraft/AlterRight.html (Last accessed on 21 May, 2016). 31 On questioning as to the role of legislatures, courts, and the public interest see, Frank H. Easterbrook, The State of Madison’s Vision of the State: A Public Choice Perspective”, 107 Harvard Law Review 1328 (1994). For Argument see John D, Donahue (1989), Supra note 9 at 11-12, John argues that:

“Values of efciency and accountability of public and private arrangements in organisational architecture should be reorganised in a sense which will best deliver public goods and services, but also explains that privatization does not guarantee accountability, in a sense that it have reduced the ambit of access to information which was easily available under public ownership. For conditions under which privatization thrives.See Maxim Boycko, Andrei Shleifer and Robert W. Vishny, A Theory of Privatization, 106(435) Economic Journal, 309-319 (1996).32 Martha Minow, supra note 24 at 1264.33 Richard W. Harding, “Private Prisons”, in Michael H. Tonry (ed.), Crime and Justice: A Review of Research 265-269 (2001). Also see Sharon Dolovich, “State Punishment and Private Prison” 55(3) Duke Law Journal 437-546 (2005).



minimum requirements; focus shifts to cost cutting and measures are

adopted which benets such an approach.

Although private services are denitely here to stay (thanks to the market

economy and its working) but what needs to be done is a better research

as to the needs of our society along with stricter and vigilant control of

state on their working and infusion of public norms in private realms is

must. Fact is they are not going to displace public entities but denitely

going to pose a serious competition. And market thrives with competition

because they can survive (have to) it by various means (hook or crook)

and then slowly and gradually acquire the control from public authorities.

The need of hour with respect to government’s role, is to modify their old

conceptions of policymaking in such a way which can counter market

more efciently and that too within the framework of constitutional

principles. And the method of resolving this issue would be public

framework of accountability, meaning—public in the source of its norms 34

and in the overreaching authority and enforcement power. Private

entities have some tangible advantages and benets but pose some

serious political and humanitarian risks. These risks tend to become

greater as the motive of cost reduction becomes increasingly

predominant (a factor which would work wonders especially in India). It

is for this reason that, of the three mature private prison jurisdictions

(United States, United Kingdom and Australia), the United States 35

experience is the one that continues to be scrutinized most closely.

Similarly, in 2010, the Israeli Supreme Court, annulled legislation to 36establish a privately operated prison. What does it convey? These

instances simply reinforced constraints against delegating essential

governmental powers to private entities and developed more logical and

34 Martha Minow (2003), Supra note 24 at 1266.35 In United States decisions like Richardson v. McKnight 521 U.S. 399 (1997) and Correctional Services Corp. v. Malesko 122 S. Ct. 515 (2001), Supreme court held that private prisons are as accountable if not more, then the public ones, and have set up high standards in that regards.36 The Academic Centre for Law and Business v. Minister of Finance , (November 19, 2009 HCJ 2605/05).

97

practical answer as to the issue concerning transfer of essential State’s

functions into the hands of private players.

V Conclusion

Though there appears no doubt that an effective use of privatization does

improve efciency, increase competition, and reduce expenditures in

some of services that are essentially not core functions of the State.

Moreover, economic efciency alone would hold no justication for

transforming correctional services into the hands of private operators.

The democratic functioning, unlike the market, is an arena for explicitly

articulating, criticizing, and conforming preferences; it pushes people to

make a case for interests of all rather than their own. Privatization

weakens this public space—the space for information,

“



PRESS CLAUSE AND SPEECH CLAUSE CONSTITUTIONAL INTERPRETATION IN INDIA AND AMERICA:

COMAPARATIVE ANALYSIS

Meera Mathew*

Abstract

This article analyses the very jurisprudential and functional difference between speech

clause and press clause under the “right to freedom of speech and expression”. According to

the writer, though both these clauses are read and interpreted equally under many

Constitutions including India, it needs to be interpreted differently by putting the press or

media in a prominent place. It is stated that the speech right available to citizens does not

have a big societal duty unlike the press since the latter being the carrier and disseminator of

information to society as a whole..To substantiate this argument, article 19 (1) (a) of the

Indian Constitution and the rst amendment under American Constitution are compared and

scrutinised to demarcate the difference. Various judicial interpretations on the same are also

analyzed. It is concluded that, with the continuing technological boom plus social media

resulting every individual act like press to disseminate any ideas including misinformation,

will result in irreparable harm to the society. Hence it is suggested that press on the basis of

its function, needs to be re-dened and re-interpreted so that those who handle this function

need to be placed in a better footing.

I Introduction

HUMAN BEINGS cannot survive devoid of communication. Man,

being a social animal, has to live in companionship with other human

beings and state for which he needs to put across his viewpoints and

opinion. These individuals comprising population in turn build that

nation’s unique identity and a mechanism of social assimilation. Speech,

hence, is an act and exchange of words, feelings, emotions or expression

between all individuals and forms the integral part of society. This makes

the speech a distinguishing right as right to freedom of speech or

expression that confers an individual a right to express boldly, vigorously 1and prudently.

The fullment that arises out of speech is related to individual’s skill to

imagine, think and foresee. Hence need to recognise speech and

* Research Scholar, Indian Law Institute.1 Harry H. Wellington “On Freedom of Expression” 88 The Yale Law Journal 1105 (1979).

99

expression so as to put across messages has a corresponding effect. From

the pre-historic ages, adequate safeguard had been provided to one’s 2expression. However, many legal systems vary in their safeguard of

freedom of speech given the profound historical dissimilarities.

Depending upon the political, social, cultural, economic set up, the

freedoms available to citizens vary. The implication of freedom of speech

and expression in a society had been analysed by various philosophers

differently and that makes it to the theories of freedom of speech and 3

Expression.

When the nations were formed demarcating the state, it was then

necessary to provide the maximum interests to individual. Moreover,

construing the philosophy surrounding the theory of equality, it can be

analysed that every human being is at liberty to corresponding view to

distribute in common decisions those inuence him. From these

perceptions there originate the right of the human being to access to

information; to articulate his own statement; to converse his desires,

keenness and priorities; thus can come in terms with the very objective

and essence of his life and his survival. For these reasons, many

constitutions have adopted Freedom of Speech and Expression as a vital-

fundamental right.

II American rst amendment vis a vis article 19 (1) (a)

Freedom of speech and expression has been used interchangeably as 4“freedom of opinion and expression, freedom of the press and of

5 6publication, freedom of information, liberty to publish one’s ideas in

2 Josiah Ober, “Socrates and democratic Athens: The story of the trial in its historical and legal contexts” Avaialble at: https://www.princeton.edu/~pswpc/pdfs/ober/070602.pdf (last visited on Oct 26,2016).3see, .Philip L. Judy, “The First Amendment Watchdog Has a Flea Problem” 26 Cap. U. L. Rev. 541-542 (1997).4See, Article 19 of United Nations Universal Declaration of Human Rights, adopted in 1948.5See, Article 27 of Chapter III, Fundamental Rights and Duties of the Residents of Hong Kong Basic Law.6See, Article 17, Charter of Fundamental Rights and Basic Freedoms, under the Czech Constitution

Press Clause and Speech Clause Constitutional Interpretation in India and America: Comaparative Analysis


7print and in writing, freedom of communication of thoughts and of 8opinions’ and so on. This right has thus a wide ambit which includes the

freedom to hold opinions, freedom to impart information, the freedom to

receive information and even the freedom to dissent against the

democratically elected governments of the day. It is also related to free

thinking, imagination and deliberation which are prerequisites for a

human being’s self-realisation. It is considered to be the most cherished

fundamental right and therefore has been included under various

international covenants and most of the constitutions.

The rst amendment to the United States Constitution provides that:

“Congress shall make no law ... abridging the freedom of speech, or of

the press....”

This is often interpreted as absolute as it is widely comprehended that the

amendment forbids the government from intruding any one’s speech.

The ‘speech’ that is safeguarded by law comprises of a broad range of

expressive behaviour oral, written, pictorial and other expressive ways

that communicate an idea. However through the judicial opinions

rendered, it can be seen that the ‘symbolic speech’, such as ablazing the

ag at a protest rally, is not protected there, since it can be intertwined

with supplementary elements such as disruptive conduct or demeaning 9

behaviour It can be seen that some forms of speech may be proscribed

utterly whereas few speech modes are constrained comparing other

factors and some are regulated depending upon the circumstances at

which it occurs. For instance, there are various restrictions to the rst

amendment in terms of:

10i. Encouraging actual violence or harm;

11ii. Fighting words

7 Section 77 of Grundloven, Denmark.8 Article 11of the Declaration of the Rights of Man and of the Citizen, France.9 Jacob Weinrib “What is the purpose of freedom of expression?”67 U Toronto Fac. L. Rev. 165( 2009).10 See, Cox v. Louisiana, 379 U.S. 536, 55111 See, Chaplinsky v. State of New Hampshire 315 U.S. 568, 572 (1942).

101

12iii. Actual dangers

13iv. Expression that institutes criminal or severe harassment

14v. Defamation

15vi. Obscenity

16 17vii. False advertising and many more such doctrines

Thus it can be realized the absoluteness of rst amendment is merely the

textual interpretation and in reality limitations are placed on the basis of

its content if the control passes “strict scrutiny” (meaning thereby if the

government demonstrates that the restraints provide “to persuade a

credible interest” and is “the least restrictive ways to further the 18articulated interest”).

Now, evaluating the Indian aspect, under the Constitution of India, it is

the article 19 (1) (a) that guarantees the ‘freedom of speech and

expression’ and it says:

“All citizens shall have the right to freedom of speech and expression...”

The most signicant case the Supreme Court of India dealt with to 19

interpret provisions of article 19 (1) (a) was Romesh Thappar case that

went on to the legality involved in Madras Maintenance of Public Order

Act, 1949. Soon, the court recognized that freedom of expression

included freedom to propagate ideas, requiring freedom of circulation 20followed by many other prominent cases.

12Murakowski v. University of Delaware, 575 F.Supp. 571,589 (D. Del. 2008)13Bachellar v. Maryland, 397 U.S. 564, 567 (1970)15United States v. Williams, 553 U.S. 285 (2008), against child pornography.16 In Valentine v. Chrestensen, 316 U.S. 52 (1942) the Supreme Court exempted commercial speech doctrine from any First Amendment protection.17Congressional Research Service, Report on Freedom of Speech and Press and Exceptions to the First Amendment (September, 2014).18 David A. Anderson “Freedom of the Press” 80 Tex. L. Rev. 429 (2001-2002).19Romesh Thapparv. State of Madras, 1950 SC 594.20Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana and others[(1988) 3 SCC 410 ], S. Rangarajan v. P. Jagjivan Ram &Ors[(1989) 2 SCC 574, The Secretary,�Ministry of information & broadcasting, v Cricket Association Of Bengal and Ors 1995 SCC (2) 161. Reliance Petro Chemicals Ltd. v. Indian Express Newspapers Bombay Pvt. Ltd A. I. R. 1989 S. C. 203



This provision under Indian Constitution [i.e., article 19 (1) a] is not

absolute and it is to read with ‘reasonable’ restrictions under article 19 21(2). The phrase ‘reasonable’ has been interpreted as that involves

intelligent concern and consideration, i.e., the preference of a path which

reason utters. Laws which randomly or terribly march into the right

cannot be believed to hold the value of equanimity and unless it hits a

proper steadiness between the freedom and the social controls permitted 22it must be held to be wanting in that quality.” Regarding this, the

23Supreme Court in State of Madras v. V.G. Row, held as:

The Court should consider not only factors such as the duration and the

extent of the restrictions, but also the circumstances under which and the

manner in which their imposition has been authorised. It is important in

this context to bear in mind that the test of reasonableness, where ever

prescribed, should be applied to each, individual statute impugned and no

abstract standard, or general pattern of reasonableness can be laid down

as applicable to all cases.

Accordingly, a state restriction will be justied, if the restricted speech is

shown to have a silencing effect on some members of the community and

leads to an overall reduction in the scope of public discourse. The state is

justied in protecting the equal opportunity of minority groups to

participate in public discourse not ‘to further their self-expressive

interests but only as a way of furthering the democratic processes. In all

cases the critical issue is whether the particular regulation makes a clear

inuence to the ‘speech right goal’ of a more open and diverse public

discourse. The restrictions are placed with a notion that – similar to every

21 Article 19 (2) includes:i.� The integrity of Indiaii.� The security of the Stateiii.� Friendly relations with foreign Statesiv.� Public orderv.� Decency or moralityvi.� Contempt of courtvii.� Defamation or incitement to an offence22Chintaman Rao v. The State of Madhya Pradesh, [1950] S.C.R. 759.23 [1952] S.C.R. 597.

103

liberty that needs to be limited, free speech also needs restrictions. The

general belief is that if unrestricted full-edged communication is

provided, it might lead to chaos, the very purpose of free exchange of

ideas and knowledge will not take place. The recent case judgment that

dealt with this aspect is National Legal Services Authority v. Union of 24India & Others in which a transgender’s expression was analysed, it was

held:

“When the law contains ‘substantive’ restrictions with regard to the

exercise of the right, as well as ‘procedural’ provisions, the Court would

consider the reasonableness of both. In determining the substantive

reasonableness, the court has to take into consideration various factors.

Even a decision as to the reasonableness of a restriction imposed on one

of the rights conferred by article 19(1) cannot have much value as a

precedent for adjudging the validity of the restrictions imposed on

another right, because the reasonableness must depend on the cumulative

effect of the varying facts and circumstances of each case.”

For these reasons, the reasonable restrictions as incorporated in

‘Freedom of Speech and Expression’ were the need of the hour. The

Indian Constitution though does not illustrate the term “Reasonable

Restrictions”, the assessment of reasonableness has to be related to each

case and no universal model of reasonableness can be put aside which

would be appropriate in all cases. The term got its meaning through 25

various judicial decisions. On this scholar T. Emerson had stated:

“It is the duty of all the courts, before upholding such regulations, to

weigh the circumstances and to appraise the substantiality of the reasons

advanced in support of the regulation of the free enjoyment of the rights

of speech and press”.

III Speech clause and press clause: US and India

The principle of free speech and expression theory is deduced indeed

24AIR 2014 SC 1863.25T. Emerson, The system of Freedom of Expression, (Random House Trade, New York,1970).



with the constitutive approach of the ancient Greeks to intrinsic good

unto itself that furthers individual self-fulllment of Immanuel Kant to J

S Mill’s liberal justication of speech for truth to market place of ideas

theory of American judge Justice O W Homes to democratic good

governance theory of Alexander Meiklejohn and many more.

Interpreting freedom of expression is a work in progress, since a

pluralistic approach is needed so as to admit of many arguments and

justications. Therefore, new means seem to be continually emerging

from the pens of legal philosophers.

It is seen that American Constitution rst amendment deals with two

clauses- Freedom of Speech and Freedom of press. Freedom of speech

and expression had been interpreted on the basis of its self-fullment 26 27 28

feeling, right to autonomy, democratic sustenance and discovering 29truth. These theories explain that contentment that stems from speech is

associated with the individual’s ability to imagine, envisage, and

engender thoughts. Only when the publishing became a recognized task,

scholars elaborated the free speech theory to include, freedom of press.

Thus the freedom of the press or media was derived from the freedom of

speech and expression and many modern-philosophers incorporated

media in their free speech theory.

One of the primary reasons for this inability to segregate between

constitutional safeguards for speech and the press is the dispute of its

credentials and qualications. In order to distinguish distinctive media

securities, the court must discover who or what the press is. Most of the

constitutions world-wide though guarantee freedom of speech and press

is included within speech, press was never given any privileged

treatment. It has been rightly observed by various scholars that, of the two

25 26T. Emerson, The system of Freedom of Expression, (Random House Trade, New Melville B Nimmer “Introduction-Is Freedom of the Press A Redundancy: What Does it Add To Freedom of Speech?” 26 Hastings Law Journal 639 (1975).27 Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. &Pub. Aff.213 (1972).28 Vincent Blasi “Democratic Participation and the Freedom of Speech: A Response to Post and Weinstein” 97 Virginia Law Review 537 (2011).29Oliver Wendell Holmes, “The Path of the Law,” in Collected Legal Papers (New York: Harcourt, Brace & Co., 1920).

105

provisions under rst amendment of US Constitution, speech has

received all responsiveness of judiciary, while the press has been

disregarded. Meaning thereby, for evolving a strong ‘speech clause

jurisprudence’, the Supreme Court has never recognized any

constitutional rights or protections based solely in the press clause.

However, press freedom is a right of signicant historical and

constitutional importance.

Dealing with the press clause, its underlying principle lies on the

rationale that everyone in the society should be able to obtain information

from every source, not merely from that are authoritatively accepted. The

meaningful purpose of the press is to offer the community with genuine

and precise information about the administration of public affairs. There

is no dispute on the function of press as it is the transmitter of news,

information, entertainment or social facts. Freedom of communication

and expression are ofcially through mediums such as the press or the

media including electronic media and published materials. The liberty of

the press as dened by Lord Manseld “consists in printing without any

license subject to the consequences of law”.

Hence, press connotes liberty to print and publish under a proper

structures after the proof-read and veracity check on facts which duly

checked by set of editors. It includes newspapers, periodicals and even

pamphlets so long that it is acting under the legitimate way of 30

disseminating information . Further, press could be denoted as one or

more division of media, dened either by task or structure. It had turned

out to be difcult in dening the press as earlier press have today adopted

a multimedia strategy of combining print, television, Internet, radio,

cable, and broadband into a single platform. In terms of format, method

of distribution, or form of organization even though the print media is

different, today’s press has begun distributing their entire result – be it

news, pictures, outline, and advertisements online.

Therefore, the prominence of press is disregarded by the Court to

30Lowell v Grifn, (1939) 303 US 444



perceive the press clause as unique from the speech clause. Thus it has

excluded it from pondering other impending rights and safeguards that

could benet press speakers accomplish their unparalleled constitutional

purposes.

31As stated by Eugene Volokh,

When speaking of the ‘press’, the earlier jurists did not mean modern

mass communication mechanisms such as satellites, radio, WiFi, mobile

broad band networks and virtual clouds—technology that, has only a

eeting resemblance to the eighteenth-century process of printing.

IV Need to outline the press clause and give its due recognition:

It is thus observed that press clause and speech clause serve different

purpose. Press clause with its due acknowledgment to the task carried out

by the reporters and editors perform more responsible work for the sake

of society at large. Then comes, what forms ‘freedom of the press’? That

question cannot be answered without understanding the role or purpose

of the press, the working and functioning of reports or journalists, the

way news are drafted and so on. If the Press clause is a structural

provision designed either to support or to protect a press that adequately

serves democracy, it needs to be interpreted properly.

When the Speech clause stoutly guards discourse and opinions, the press

clause plays a role in newsgathering and disseminating it to public. The

press was, from the inception, comprised as unavoidably entwined with

news on public dealings. Consequently while members of the drafting

assembly may have sometimes labelled the press as a device that

anybody was permitted to use for any determination, their sustenance

endorsed a very unlike appreciative of what the press—and thus freedom 32of the press—demonstrated.

Democracy requires discussion, and discussion requires some consensus

about the themes to be deliberated upon. What the press does, serviceably

31 Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. PA. L. Rev. 459 (2012).32VishwanathI yer, The Indian press 45 (Padma Publications, Bombay, 1945).

107

is instituting this community discourse. The press is one of the entities

whose purposes are engraved properly and practically oblige its

occupation properly, is therefore suitable to distinguish. The right to use

mass communication to disseminate the news and necessary facts is only

vested with press. This under-protecting and due acknowledgment to the

freedom of the press will have a detrimental effect on media and it’s 33working.

Unless a demarcation is done on article 19 (1) (a), all speakers will be

considered with vibrant rights that license opinions to be published

without due check and often function in press-like ways that will have a

detrimental effect. From an egalitarian society’s standpoint, the media

plays a relatable responsibility by providing information which is

indispensable for two reasons. Principally, it warrants that citizens

perceive appropriate and restructured views by evaluating the valid and

legitimate facts as provided by media. Secondly, it provides information

as a “checking function” by guaranteeing that the chosen government and

its representatives act upon electoral promises and achieve the desires of

those who chose them.

Media thus plays a central role since it is the single means through which 34

public opinion is engendered. Normal speakers if not press, should

remain free to express themselves if they are unsure of facts and

information they get, especially barring from publishing and

disseminating their messages. Press speakers are fullling a public

function, therefore identity, and recognition and part of the autonomous

nature of the work is required to be drawn. Exploring the senior Advocate 35F. S. Nariman had once observed:

“A responsible Press is the handmaiden of effective judicial

administration. The Press does not simply publish information about

cases and trials but, subjects the entire Justice – hierarchy (police,

33Id. at page 5.�34Shefali Bedi, “ esponsibility of media in a democracy”, 7 International Research Journal 235 (2009).35 Op-Ed “Wake up and smell the ink” The Hindu (December 4, 2012).



prosecutors, lawyers, Judges, Courts), as well as the judicial processes, to

public scrutiny. Free and robust reporting, criticism and debate

contribute to public understanding of the rule of law, and to a better

comprehension of the entire Justice – system. It also helps improve the

quality of that system by subjecting it to the cleansing effect of exposure

and public accountability.”

Further, there are numerous Supreme Court judgments rendered by 36Indian Judiciary highlighting the need to protect press freedom. It is

therefore labelled as watchdog since it checks and balances the power of

the other three branches of government, i.e., the executive, the 37

legislature and the judiciary. Undoubtedly, the free press facilitates the

individuals to partake in all pertinent matters affecting them. It has been

universally accepted that only an autonomous press or media can endow

citizens with a diversity of information and views on matters of public

signicance. These grand pronouncements are on the value of the press,

while it never refuses to acknowledge the actual press clause power.

V Conclusion

Besides its watchdog role, the press should generate a room for societal

deliberation. The free press persuades involvement from the public in

general, encouraging a vigorous, skilled and active society to carry out

the debate inspired originally by the media, moulding a true marketplace

of ideas where all opinions are taken into account. For these reasons, it is

the need of the hour that the press clause under article 19 (1) (a) needs to

re-examined and be given separate privileges. The modes that the media

is supposed to utilize its unhindered course of information and to warrant

the implementation of others’ privileges to the free stream of information

are undened.

Earlier, the Print media, movie, radio, and TV circulate equivalent

36Romesh Thapper v. State of Madras AIR 1950 SC 124, Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305: 1962 (3) SCR 842BrijBhushan v. State of Delhi AIR 1950 SC 129, Bennett Coleman Co. v. Union of India AIR 1973 SC 106, Indian Express Newspapers v. Union of India AIR 1986 SC 515. 37Shirley Biagi, Media/Impact: An Introduction to Mass Media 35 (Wadsworth Publishing Company, Belmont, 2006).

109

content that has been produced by or on behalf of a broadcaster to

spectators that consists of many persons, where the audience

responsibility has been inert, to accept the speech, as provided, devoid of

the aptitude to react or to change. However with the rise of internet and

vast usage of cyber space, mass communication dissemination modality

changed. Anybody with admittance to a computer connected to the

Internet can bring out ideas and information to the public domain.

Presently, anyone who seemingly collects news now has the capability to

distribute it to the public directly through the accounts they create

through social media. Nevertheless, the aptitude to publicize is not the

identical to the ability to engage ‘an audience- readers’ relation and this is

where the press’s characteristic signicance lies today.

With the evolution of technology, digitalization, web 2.0 and social

media, the press role as indispensable disseminator of news is no longer 38continued. This is a major transition from traditional media to new-

media that is equipped with web 2.0 represented or seemed to be as a

sensible, linear progression so far as technology is concerned. However,

the fact is with this transition, anybody can fabricate information rapidly

and effortlessly, an enormous amount of information on the internet is

twisted by anyone who may need the credentials, prociency, or wish to

appropriately authenticate the information they make. Anything

consumed can speedily be duplicated and proliferated, which seems to

effect in a more hasty multiplication of misinformation than was

formerly probable.

Hence, to avoid an irreparable harm in the long run, it is necessary to

proscribe what the media, what the news is and thereby protect the news

38See, E. Siapera (eds.) Radical Democracy and the Internet: Interrogating Theory and Practice (Palgrave Macmillan publisher, London (2010). “The digital media underwent dramatic transformations with the onset of liberalisation. The term ’liberalisation’ refers to the opening up of the Indian market by the Indian state to enable it to be more integrated into the global economy. As commercial imperatives of the media intensied in an unprecedented manner, at the beginning of the new millennium we are in a better position to judge the impact of these changes in the Indian media. The central debate within the media world today is about the impact of liberalisation”.



worthy media from normal ones and thereby grant them extra privilege. 39To sum up, it is pertinent to quote J Brandeis:

Good [counsels] are a remedy for evil counsels. The point of discussion is

to expose the falsehoods and fallacies, to avert the evil.

39See, Whitney v. California, 274 U.S. 357, 375 (1927).

111

LAW OF SEDITION: HISTORY AND PRACTICE

N. Jayalakshmi*

Abstract

India is one of the largest democratic countries in the world and its Constitution has been

framed adopting all the best practices followed in the other nations. The spirit of the

Constitution is a path which tries to bring in all sorts of freedom to the citizens of the nation

which they had not obtained during the British rule. The British rule forced the framers of

our Constitution to think of an egalitarian society where democracy is extolled and vital aim

is not just depiction of democratic principles but also elevating the constitutional ideals to the

perspective of justice. One such principle that was framed as a provision is freedom of

speech and expression. Though this right is guaranteed but not enacted as an absolute one,

riders are placed to protect the pillars of democracy. Various reasonable restrictions are

applicable while applying right to freedom of speech and expression. In this context, the

relevance of sedition applying to Free speech is pertinent. This article analyses the

perception of sedition, its relevance today and the role of judiciary in protecting the freedom

of speech and expression.

I Introduction

FREEDOM OF speech and expression is what human being acquires on

birth. Considering the important position freedom of speech and

expression developed, it came to be recognised as one of the vital element

in a democratic state. It held the highest position in human rights

hierarchy after right to life. Freedom of speech and expression began to

be considered as fundamental rights and it enjoined some unlimited 1powers behind its wagon.

The right to free speech is one of the most renowned as well as robustly

secured civil liberties from any sort of governmental intrusion. The

voyage to safeguard free speech did not have an abrupt beginning with

the Constitution of India. In the era of India’s struggle for independence

from the British rule, right to free speech was given enormous

importance by the national leadership. Rigorous campaigns were

*Research Scholar, National Law School of India, Bangalore.1 Archana Jayaraman, “Freedom of Speech and Expression: A Comparative analysis

st American I Amendment and Article 19 (1) (a) of Indian Constitution”1(2) International Journal of Research and Analysis 96 (2013).

Law of Sedition: History and Practice


2organized to ensure the freedom of press against several repressive laws.

II Rationale behind protecting freedom of speech

Freedom of speech offers human being to express his feelings to other,

but this is not the only reason; purpose to protect the freedom of speech.

There could be more reasons to protect these essential liberties. There are

four important justications for freedom of speech –

1. For the discovery of truth by open discussion - According to it, if

restrictions on speech are tolerated, society prevents the

ascertainment and publication of accurate facts and valuable

opinion. That is to say, it assists in the discovery of truth.

2. Free speech as an aspect of self- fullment and development –

Freedom of speech is an integral aspect of each individual’s right to

self-development and self-fullment. Restriction on what we are

allowed to say and write or to hear and read will hamper our

personality and its growth. It helps an individual to attain self-

fullment.

3. For expressing belief and political attitudes - Freedom of speech

provides opportunity to express one’s belief and show political

attitudes. It ultimately results in the welfare of the society and state.

Thus, freedom of speech provides a mechanism by which it would

be possible to establish a reasonable balance between stability and

social change.

4. For active participation in democracy – Democracy is most

important feature of today’s world. Freedom of speech is there to

protect the right of all citizens to understand political issues so that

they can participate in smooth working of democracy. That is to say,

freedom of speech strengthens the capacity of an individual in 3participating in decision-making.

2 Subhradipta Sarkar “Right to free speech in a censored democracy” 6 University of Denver Sports and Entertainment Law Journal 61 – 88 (2009).3 Dheerajendra Patanjali “Freedom of Speech and Expression: India v America - A study” 3 (4)India Law Journal 1 (2015).See, http://indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html (Last visited on 29 Sept., 2016).

113

The right to freedom of expression is protected by a multitude of regional

and international treaties, charters and frameworks. According to article

19(2) of the International Covenant on Civil and Political Rights

(ICCPR), a formally binding legal treaty ratied by 165 nations that

echoes in key respects the Universal Declaration of Human Rights:

Everyone shall have the right to freedom of expression; this right shall

include the freedom to seek, receive and impart information and ideas of

all kinds, regardless of frontiers, either orally, in writing or in print, in the

form of art, or through any other media of his choice.

The freedom of expression is characterized by six key features:

It applies to everyone equally without distinction of any kind

whatsoever; distinctions based on “race, colour, sex, language,

religion, political or other opinion, national or social origin, property,

birth or other status” are entirely irrelevant to its application.

Its geographical scope is unlimited; it applies “regardless of

frontiers.”

Its substantive scope, while not unlimited, is broad; it encompasses

information and ideas of all kinds.

It includes the rights to both receive and impart information and ideas;

the rights of both listeners and speakers, and observers and

demonstrators are equally protected

It imposes a positive obligation on signatories to the ICCPR; states are

obligated to take the necessary steps to ensure its protection, including

adopting laws or other measures as may be necessary and providing

an effective remedy to those whose freedom of expression has been

violated.

The manner in which expressions are disseminated is unlimited; it

protects the right to impart one’s ideas using any form of media of his

choice.



The freedom of expression, while expansive, is not absolute and can, in 4certain narrow circumstances, be restricted.

III Sedition: Concept and meaning

As stated in Kenny - the law of sedition relates to the uttering of the

seditious words, the publication of seditious libels, and conspiracies to do

an act for the furtherance of a seditious intention. Sedition, whether by

words spoken or written, or by conduct, is a misdemean our at common 5

law punishable by ne and imprisonment.

Sedition is overt conduct, such as speech and organization that is deemed

by the legal authority to tend toward insurrection against the established

order. Sedition often includes subversion of a constitution and

incitement of discontent to lawful authority. Sedition may include any

commotion, though not aimed at direct and open violence against the

laws. Seditious words in writing are seditious libel. A seditionist is one 6

who engages in or promotes the interests of sedition.

7Sir James Fitzjames has dened seditious intention as that which excited

hatred, contempt or disaffection towards the crown, constitution, or

government and incited any person to commit a crime in disturbance of

the peace or to promote feelings of ill will and hostility between different 8classes of subjects . Five specic heads of sedition are:

1. To excite disaffection against the King, Government or

Constitution, or against Parliament or the administration of justice;

2. To promote, by unlawful means, any alteration in church or state;

3. To incite a disturbance of the peace;

4 ICNPL, Report on the right to freedom of expression: Restrictions on a foundational right (April, 2015) See, www.icnl.org/research/trends/trends6-1.pdf. (last visited on September 26, 2016).5 Ankur Gupta, “Sedition”, Available at: http://www.rmlnlu.ac.in/webj/sedition.pdf (Last visited on 12 Sept., 2016).6 Madhavi Divan, “The right to privacy in the age of information and communications” 4 SCC J 12-23 (2002).7 Luc B. Tremblay, The Rule of Law, Justice and Interpretation (McGill-Queen’s University Press, Montreal & Kingston, 1997). 8 Barry Wright, Eric Tucker (et al), Security, Dissent, and the Limits of Toleration in War and Peace, 1914-1939(University of Toronto Press, Canada, 2015).

115

4. To raise discontent among the king’s subjects; and

95. To excite class hatred.

Sec.124A of Indian Penal Code explain sedition as:

Whoever, by words, either spoken or written, or by signs, or by visible

representation, or otherwise, brings or attempts to bring into hatred or

contempt, or excites or attempts to excite disaffection towards the

Government established by law shall be punished with imprisonment for

life, to which ne may be added, or with imprisonment which may extend

to three years, to which ne may be added, or with ne.

Explanation 1-The expression “disaffection” includes disloyalty and

all feelings of enmity.

Explanation 2-Comments expressing disapprobation of the measures

of the attempting to excite hatred, contempt or disaffection, do not

constitute an offence under this section.

Explanation 3-Comments expressing disapprobation of the

administrative or other action of the Government without exciting or

attempting to excite hatred, contempt or disaffection, do not

constitute an offence under this section.

The Indian Constitution has no specic law that protects freedom of

speech; this is a legacy that it may have inherited from its former British

colonial master. India, like the UK, draws this right from article 19 of the 10

UN UDHR.

In drafting the provision on Freedom of speech and expression, India’s

founders were inuenced by the First Amendment to the United States

Constitution. That amendment says, “Congress shall make no law

abridging the freedom of speed, or of the press.” It assures in relatively

absolute terms, freedom of speech and press. But, under the Indian

Constitution, this freedom is a lot more qualied. Article 19 (2) contains

9 thK.D. Gaur, Text Book on The Indian Penal code ( 4 edn., Universal Law Publishing Co. Pvt. Ltd, New Delhi, 2009).10 Ibrahim Seaga Shaw, Business Journalism: A Critical Political Economy Approach (Routledge, Oxon, 2016).



a list of various grounds that permit the government to impose reasonable

restrictions on the freedom. These grounds are India’s sovereignty and

integrity, state security, foreign relations, public order, decency, morality, 11

contempt of court, defamation and incitement of offences.

Article 19 (1) (a) of the Indian Constitution says, all citizens have the

right to freedom of speech and expression. This right of freedom of

speech and expression incorporates protection for austerely censuring

existing government structures, policies and administrative schemes,

coupled with protection for suggestion and recommending the

development of other system. Article 19 (2) of Indian Constitution says

that, every citizen of the country holds the right to air his or her opinion 12

through print or electronic media with restrictions imposed.

Pursuant to enacting “reasonable restrictions” on the right to free

expression, the Union Government have enacted the following statutory

provisions which constitutive the basic framework for restrictions on

speech that exemplify India’s more permissive approach to restricting

socially offensive and emotionally harmful speech. Section 153 A of the

IPC constitutes one of the two pillars of India’s hate speech restrictions.

It imposes criminal penalties on anyone who

by words, either spoken or written, or by signs or by visible

representations or otherwise, promotes or attempts to promote, on

grounds of religion, race, place of birth, residence, language, caste or

community or any other ground whatsoever, disharmony or feelings of

enmity, hatred or ill-will between different religious, racial, language or

regional groups or castes or communities, or (b) commits any act which is

prejudicial to the maintenance of harmony between different religious,

racial language or regional groups or castes or communities and which

disturbs or is likely to disturb the public tranquillity…”

11 Niru Sharan “Freedom of Speech and Expression and Indian Constitution: An Overview” 3 (7) International Journal of Humanities, Arts, Medicine and Science 70 (2015). 12 Hetal Chavda, “Autonomy Is as autonomy Does – Law of Sedition in India” 2(5) Imperial Journal of Interdisciplinary Research: 31( 2016).

117

Section 295A imposes a punishment of up to three years, a ne, or both on

anyone who

with deliberate and malicious intention of outraging the religious

feelings of any class of citizens of India, by words, either spoken or

written, or by signs or by visible representations or otherwise, insults or

attempts to insult the religion or the religious beliefs of that class…..

The Supreme Court has upheld these provisions on the grounds that they 13

constitute “reasonable restrictions” pursuant to protecting public order.

V Historical development of the law of sedition in India

thIn the 13 century, the rulers in England viewed the printing press as a

threat to their sovereignty. The widespread use of the printing press thus

prompted a series of measures to control the press and the dissemination

of information in the latter half of the century. These measures may

broadly be categorised as the collection of acts concerning Scandalum 14Magnatum and the offence of Treason. While the former addressed the

act of speaking ill of the King, the latter was a more direct offence

“against the person or government of the King”. The rst category of

offences, classied as acts concerning Scandalum Magnatum, were a

series of statues enacted in 1275 and later. These created a statutory

offence of defamation, which made it illegal to concoct or disseminate

false news (either written or spoken) about the kind or the magnates of the

realm. The second category of offences was that of treason. Essentially,

treason was an offence against the State. It was understood that all the

subjects of the rulers owed a duty of loyalty to the kind. Thus, if any

person committed an act detrimental to the interests of the rulers, they

13 Daniel Hantman “Shaking Fists and Simmering craniums: India’s tolerance for restricting socially offensive and emotionally harmful speech” 1 Indonesian Journal of International & comparative Law 82-84 (2014).14 Scandalum Magnatum or words spoken in derogation of a peer, judge or other great ofcer of the realm, which by certain old statutes, was made a very heinous ofce, although the utterance of the very same words would not be actionable if spoken against any ordinary individual. The action or prosecution for scandalum magnatum, is totally different from the action for slander in the case of private persons.



15would be guilty of the offence of treason.

The law of sedition was an import during the colonial period from

English law into the IPC, which consisted of partly the Treason-Felony

Act, the common law with regard to seditious libels and the law relating

to the seditious worlds. The Clause of sedition stood as sec. 113 in

Macaulay’s draft IPC of 1837, and was shelved for 20 years until the

enactment of IPC. But the said clause was omitted when enacted, to be

inserted into the IPC by way of an amendment in 1870, the Law Secretary

of Government of India, justied on the pretext that it aimed to bring

about uniformity and remove incongruities in the existing law. He

pointed out that the new section aimed to punish attempts to excite

feelings of disaffection against the Government and made a distinction

between ‘disaffection’ and ‘disapprobation’. In reality, the insertion of a 16section on sedition was prompted by the increasing Wahabi. Wahabi

were a shadowy network of rebels who were part of the First War of

Indian independence in 1857 and were feared for their extensive network

across the country. They followed a modern organisational technique of

combining secret work with mass preaching set in politico-religious 17framework activities between 1863-1870.

In 1867, the British Indian government passed a law proscribing the

publication of seditious writing, or literature that was deemed to promote

disaffection with the British colonial government. In the eyes of the

British government, the literature of sedition served to establish a

connection between literature and terrorism. The original impetus for the

Act of 1867 came from London, where librarians in the British museum

and administrators in the India ofce felt a need to keep track of the 18printed matter churned out by Indian presses.

15 Nivedita Saksena and Siddhartha Srivastava “An Analysis of the modern offence of sedition” 12(1) NUJS Law Review 125 (2014). 16 M. Vardalos, G.K. Letts (et al) Engaging Terror: A Critical and Interdisciplinary Approach (Brown Walker Press, Boca Raton ,2009).17 Siddharth Narrain, “Disaffection and the Law: The Chilling Effect of sedition Laws in India” XLVI Economic and Political Weekly 33 (2011).18 Elleke Boehmer and Stephen Morton, Terror and the Postcolonial: A Concise companion (John Wiley and Sons, UK, 2015).

119

At that point, it was a law against “exciting disaffection.” The rst case

was registered, in 1891, when the editor of a newspaper called Bangobasi

was booked for publishing an article criticising an “Age of Consent Bill”.

The jury could not reach a unanimous verdict and the judge, in that case,

refused to accept any verdict that was not unanimous. The editor was

released on bail, and, after he issued an apology, charges against him 19were dropped.

20In Queen Empress v. Bal Gangadhar Tilak was the rst case wherein the

law on sedition under sec. 124A in the IPC was explained. Strachey J.

stated the law in the following terms;

The offence consists in exciting or attempting to excite in others certain

bad feeling towards the government. It is not the exciting or attempting

to excite mutiny or rebellion or any sort of actual disturbance, great or

small. Whether any disturbance or outbreak was caused by these articles 21is absolutely immaterial.

In 1898, the law of sedition under IPC was amended to include the terms

‘hatred’ and ‘contempt’ to the word ‘disaffection’. Disaffection was also

stated to include ‘disloyalty and all feelings of enmity’. These

amendments were also brought in section 153 and section 505 of IPC. In 22

Queen Empress v. Jogendra Chandra Bose, the word ‘disaffection was

dened as opposite of affection. Later on in Queen Empress v. 23Ramachandra, it was dened as positive feeling, not just absence of

affection. Justice Strachery took a particularly broad approach in his

denition of disaffection on “hatred, enmity, dislike, hostility, contempt

and every form of ill-will” to the government. In Emperor v. Bhaskar

1 9Atul Dev, “A History of the Infamous Section 124A” Available at: http://www.caravanmagazine.in/vantage/section-124a-sedition-jnu-protests (Last visited on 12 Sept., 2016).20 (1897) I.L.R. 22 Bom. 112.21 Available at: http://www.thehindu.com/opinion/lead/sedition-legislation-meant-to-suppress-the-voice-of-indian-people/article7758013.ece (Last visited on 12 Sept., 2016).22 (1893)ILR 20 Cal 537.23 (1897) I.L.R. 22 Bom. 152.



24Balvant Bopatkar disaffection was interpreted not as a feeling for 25another individual, but a feeling one had for a ruler.

In 1908, after the political situation created because of the partition of

Bengal, the British enacted the Newspapers (Incitement of Offences)

Act, a law that enabled district magistrates to conscate printing presses

that were used to publish seditious material. The colonial government

also enacted the Seditious Meetings Act to prevent meetings of more than 2620 people from assembling.

Another famous decision was Annie Besant v. Advocate General of 27Madras. The case dealt with sec. 4(1) of the Indian Press Act, 1919, that

was framed similar to sec. 124A. The relevant provision said that any

press used for printing/publishing newspapers books or other documents

containing words, signs or other visible representations that had a

tendency to provoke hatred or contempt to his Majesty’s

government…or any class of subjects (either directly or indirectly, by

way of inference, suggestion, metaphor, etc.) would be liable to have its

deposit forfeited. In this case an attack was levelled against the English

bureaucracy. The Privy Council followed the earlier interpretation of

Justice Strachey and conscated the deposit of Annie Besant’s printing 28

press.

Mahatma Gandhi even went to a length to call the law of sedition as the

prince among the political sections of the IPC designed to suppress the 29liberty of the citizen.

In 1942, the court overturned the conviction of Niharendu Dutt

24 (1906) 8 BOMLR 421.25 Shaik Mohammed Ismail “An Analysis of law of sedition and its impact on freedom of expression” 1 Journal of Legal Analysis and Research 34 (2014). 26 Siddharth Narrain “Disaffection and the Law: The Chilling Effect of Sedition Laws in India” XLVI Economic and Political Weekly 34 (2011).27 (1919) 46 IA 176. 28See, http://www.nls.ac.in/resources/csseip/Files/SeditionLaws_cover-Final.pdf. (Last visited on 10 Sept., 2016). 29 Available at : http://lexquest.in/draconian-law-sedition/ (last visited on 15 Sept. 15, 2016).

121

30Mazumdar v. King Emperor, for sedition. Mazumdar had delivered a

speech in the Bengal Legislative Assembly attacking the governor and

the elected Suhrawady Ministry for the failure to maintain law and order

during the Dhaka riots. The court went into the merits of Mazumdar’s

speech and held that the “the time is long gone when a mere criticism of

government, even abusive language, was sufcient to constitute

sedition.” Overturning years of accumulated judicial opinion, it

recognized that the right to utter honest and reasonable criticism of an

existing system of government or even the expression of a desire for a

different system of government was a source of strength to a community.

It argued against the literal interpretation of the sedition clause,

suggesting that the way it was framed in the IPC was sufcient to make a 31surprising number of persons guilty of sedition.

Conversely, the Privy Council, in the King Emperor v. Sadashiv 32Naarayan Bhalerao overruled that decision and ardently conrmed the

33view expressed in Tilak’s case to the effect that “the offence consisted in

exciting or attempting to excite in others certain bad feelings towards the

Government and not in exciting or attempting to excite mutiny or

rebellion, or any sort of actual disturbance, great or small.” Thus,

according to the Privy Council, incitement to violence was not a

necessary element of the offence of the sedition.

34In Kedarnath v. State of Bihar, the Supreme Court of India held that,

while “very strong speech” and “very vigorous words” are protected by

the constitution, the law of sedition as provided in sec. 124-A of the

Indian Penal code is consistent with the constitutional protection of

freedom of expression. The current interpretation of sec. 124A upheld in

this case propounded two points relevant. The court stated:

30 (1942) FCR 48. 31 Terence C. Halliday, Lucien (et al) Fate of Political Liberalism in the British post-colony: The Politics of the Legal Complex (Cambridge University Press, Cambridge, 2012). 32 (1947) L.R. 74 I.A. 89. 33 Emperor v. Bal Gangadhar Tilak, (1917) 19 BomLR 21134AIR (40) 1962 SC 995.



The very existence of the State will be in jeopardy if the government

established by law is subverted. That is why sedition as the offence in

sec. 124-A has been characterised, comes under Chapter VI relating to

offences against the State. Hence any act within the meaning of sec. 124-

A which have the effect of subverting the Government by bringing that

Government into contempt or hatred or creating disaffection against it,

would be within the penal statute, because the feeling of disloyalty to the

Government established by law or enmity to it imports the idea of

tendency to public disorder by the use of actual violence or incitement to

violence.

On that basis these, following observations were made:

a. A distinction was drawn between the Government established at

law and persons for the time being engaged in carrying on the

administration.

b. The judges moved towards understanding sedition in terms of its 35

tendency to create disorder or incitement to violence.

36In Tara Singh v. State of Punjab , sec. 124-A of IPC was struck down as

unconstitutional being contrary of freedom of speech and expression 37guaranteed under article 19 (1) (a).

38In Ram Nandan v. State of UP, the constitutionality of the section was

challenged in this case on the ground of violation of article 19 (2) of the

constitution and has been declared unconstitutional by the Allahabad

High Court. But, only after a few years of this decision the apex court of

India overruled the decision of Allahabad High Court and held it as a

constitutional by giving the reasoning, that, “to protect the freedom of

speech and expression, which is sin qua non of a democratic form of

government that our constitution has established. This court, as the

custodian and guarantor of the fundamental rights of the citizens, has the

35 Available at : jmi.ac.in/upload/menuupload/12_ccmg_Sedition.pdf (Last visited on 15 Sept., 2016).36 1951 CriLJ 449.37 AIR 1950 SC 124. 38 AIR 1959 All 101.

123

duty cast upon it of striking down any law which unduly restricts the

freedom of speech and expression. But the freedom has to be guarded

against becoming a license for vilication and condemnations of the

Government established by law, in words which incite violence of have 39

the tendency to create public disorder.”

VI Comparative law

For the comparison purpose, the legal position of three countries is being 40

analysed: In USA, in Brandenburg v. Ohio, the court said that

advocating a doctrine of violence in abstract terms was not considered

sedition, whereas advocating immediate violence was. The prior, it was

held was protected by the First Amendment and the distinction was the

immediacy of the threat. This law operates under civil jurisdiction and

there is a separate code governing military justice where both sedition 41

and failure to suppress sedition is punishable under a court marshal.

42In Schenck v. United States was the one of the rst important case

where Supreme Court was rst requested to strike down a law violating

the free speech clause. It was a case related to Sedition Act of 1918 which

criminalized ‘disloyal’, ‘scurrilous’ or ‘abusive’ language against the

government. Supreme Court held in this case as:

The question in every case is whether the words used are used in such

circumstances and are of such a nature as to create a clear and present

danger that they will bring about the substantive evils that Congress has a

right to prevent. Thus, in this case court evolved a new doctrine of “clear

and present danger.

Further, in Dennis v. United States, it was observed by the court that

“clear and present danger” test did not require the government to ‘wait

until the putsch is about to be executed, the plans have been laid and the

39 Ibid. 40 Brandenburg v. Ohio 395 U.S. 444 (1969)41 Available at : http://jmi.ac.in/upload/menuupload/12_ccmg_Sedition.pdf (last visited on 15 Sept., 2016).42 Schenck v. United States, 249 U.S. 47 (1919).



signal is awaited; thereby broadly dening the words “clear and present

danger.”

43Thus, the Supreme Court effectively shaped the rst amendment of

American Constitution in such a manner as to permit a multitude of

restrictions on speech. Example such restriction is providing authority to

state to punish words that ‘by their very nature, involve danger to the

public peace and to the security of the state’. Moreover, lawmakers were 44given the freedom to decide which speech would constitute a danger.

45In a 1966 case, the court ruled that the Georgia House of

Representatives’ exclusion from membership of Julian Bond violated his

constitutional rights. Bond, an opponent of the Vietnam war, had joined a

statement of ‘sympathy with, and support [for] the men in this country

who are unwilling to respond to a military draft’. The court held that

Bond could not be penalized for that statement since it did not constitute a

call for unlawful draft resistance but was merely a general, abstract

declaration of opposition to the war. The court also relied on other

statements by Bond in which he explicitly denied advocating the

breaking of the draft laws. The court emphasized:

[S]tatements criticizing public policy and the implementation of it must

be ... protected [in order to] ... give freedom of expression the breathing 46

space it needs to survive.

The Supreme Court developed the “ghting words” doctrine to address

the issue of offensive speech. ‘ghting words’, which are excluded from

constitutional protection, include those which tend to incite an immediate

breach of the peace or which by their very utterance inict injury. The

43 The US rst amendment reads as:Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.44See, http://indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html (Last visited on 15 Sept., 2016).45 Bond v. Floyd, 385 US 116 (1966). 46 See, https://www.article19.org/data/les/pdfs/publications/1993-handbook.pdf (Last visited on 19 Sept., 2016).

125

court articulated the ghting words test in 1942; since 1952, it has not

upheld a single ghting words conviction. Although it has not expressly

rejected the doctrine, in practice it has declined to proscribe words which

by their very utterance inict injury, and has interpreted the rst prong of

the denition, the tendency to incite an immediate breach of the peace to

be co-extensive with the ‘clear and present danger’ test. The Supreme

Court effected this transformation of the “ghting words” doctrine in 47several decisions.

In Ghana it repealed the law of sedition, as it considered such laws as

unworthy of a society seeking to develop on democratic principles on the 48

basis of transparency and accountability in public life. Further, in

Australia, the Anti-terrorism Act 2005, also extended the crime of

sedition to include ‘urging a person to assist the enemy’ and ‘urging a

person to assist an organization engaged in armed hostilities against

Australian defence force, in what the government termed a ‘modernising’ 49

of the obsolete crime of sedition.

VII Sedition law after independence and recent cases of

sedition in India

Freedom of expression is important not merely as a bane to the state –

though that function is surely a key aspect of democratic life. Journalists,

publishers, bloggers and NGOs are citizens with the capacity to highlight

issues of concern, and to propose solutions. When their right to speak

freely and frankly is curtailed, either directly by the state, or indirectly by

the threat of disproportionate civil action, so is their ability to underwrite

the fundamental rights and freedoms of their fellow citizens. Free speech

serves to highlight areas where the state is failing in its duty to the people.

Without a vigorous culture of free speech, the state becomes a stranger to 50the views of the people.

47 Id at p. 125. 48 See, http://www.ghanaweb.com/GhanaHomePage/NewsArchive/Criminal-libel-law-repealed-17009 (Last visited on 19 Sept., 2016). 49 James Jpp and John Nieuwenhuysen, Social Cohesion in Australia (Cambridge University Press, Vienna, 2007). 50 Available at: https://www.englishpen.org/wp-content/uploads/2015/09/seditious_libel_july09.pdf (Last visited on 15 Sept., 2016).



Restrictions on the freedom of expression can be justied if they are

provided by law or if they are in pursuance of a legitimate aim in

international treaties such as the protection of national security, public

order, public health or morals. There needs to be a necessity to restrict the

right in the form of a pressing social need and there needs to be a strict

scrutiny regarding the justication of the restriction. When a law

restricts freedom of expression by reference to national security or public

order imperatives, and that law is couched in general terms, specic

justication needs to be provided by the State in prosecution (for 51

compliance) with article 19 of the ICCPR.

Even though sedition was expressly excluded by the Constituent

Assembly as a ground for the limitation of the right to freedom of speech

and expression, this right was still being curbed under the guise of this

provision of the IPC. The reason the drafters of the Constitution omitted

the term ‘sedition’ from the enacted Constitution was the divergence in

interpretation of the term. To avoid any complications that may arise out

of its ambiguity in interpretation, they used the term ‘security of the state’ 52

that was to include grave crimes like sedition.

In 1979, India ratied the ICCPR, which sets forth internationally

recognized standards for the protection of freedom of expression. Yet, as

detailed here, a series of Indian legal provisions, some of them used by

prosecutors and litigants on a regular basis, continue to restrict speech in

ways inconsistent with that covenant. In some cases, the Indian Supreme

Court has properly issued rulings narrowing the scope of the laws, but

they continued to be misused, making clear that the laws themselves need

to be amended or repealed if India is to comply with its international 53obligations . One of the concerns has been whether such crimes ‘t’ with

the stance of the substantive criminal law that typically discounts the

51 Available at: https://www.nls.ac.in/resources/csseip/Files/SeditionLaws_cover_Final.pdf (Last visited on 13 Sept., 2016). 52 Supra Note 12. 53Available at: https://www.hrw.org/report/2016/05/24/stiing-dissent/criminalization-peaceful-expression-india (Last visited on 13 Sept., 2016).

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54relevance of motive to criminal responsibility . Every right are subject to

limitations as may be imposed by law in the collective interest of the

society. But the difculties arise with regard to such notions as ‘national

security’, ‘security of the state’, ‘public order’, ‘public interest’ and 55

‘decency or morality’.

56In the Menaka Gandhi case, the Supreme Court had held that freedom of

speech and expression is not conned to geographical limitations and it

carries with it the right of a citizen to gather information and to exchange 57thought with others not only in India but abroad too . The Apex court has

accepted that the line dividing preaching disaffection towards the

Government and legitimate political activity in a democratic set up 58

cannot be neatly drawn. Moreover, India’s rst citizen, President Pranab

Mukherjee, seemed to take a strong stand. At the valedictory event to

commemorate the 155th anniversary of IPC, President Mukherjee said:

The IPC has undergone very few changes in the last 155 years…Even

now, there are offences in the code which were enacted by the British to

meet their colonial needs. Yet, there are many new offences which have to

be properly dened and incorporated in the code.

He suggested that the IPC needs a complete and thorough revision and

their implementation requires considerable understanding and

inclusiveness on the part of the police. Timed to perfection, the 59President’s views seem to resound that of the nation as a whole .

Few examples where sedition charges were levelled:

i. V. Gopalaswamy, Politician, MDMK, December, 2009, Chennai,

54Katharine Gelber and Adrienne Stone “Hate Speech and freedom of speech in Australia” 15 NSW140 (2007).55 nd Justice Hosbet Suresh,All Human Rights are Fundamental Rights: (2 edn., Universal Law Publishing Company, New Delhi, 2010). 56 Maneka Gandhi v. Union of India, AIR 1978 SC 597. . 57 See, http://www.gktoday.in/indias-sedition-laws-and-current-issues/ (Last visited on 13 Sept., 2016).58 Nazir Khan v. State of Delhi, (2003) 8 SCC 461. 59Available at: http://www.mapsondia.com/my-india/india/are-indian-sedition-laws-outdated (Last visited on 13 Sept., 2016).



Tamil Nadu – Remarks allegedly against India’s sovereignty at a

book launch function.

ii. Arundhati Roy, Shuddabrata Sengupta, S.A.R. Geelani, Varavara

Rao and other writers, political activists and media theorists,

november, 2010, Delhi, Private complaint alleging that they made

anti-India speeches titled “Azadi – The Only way” at a seminar in

Kashmir.

iii. Aseem Trivedi, Cartoonist, September, 2012, Mumbai – he was

arrested after a complaint that his cartoons mocked the Indian 60Constitution and national emblem.

VIII Way forward: Time to change

Analysis, criticism from various point of view, leave us with a question:

Do we really need a law of sedition?. Answer can be viewed from two

points of view. The rst point of view is that the law is made with a

thought to protect the country in case there is a rebel or contempt against

the government, in any form. Britishers entered India with a thought of

trade and later formed their government and ruled us. Their situation was

precarious, and the fear of losing power or being overthrown was clear in

their mind and hence they made law with an intention to suppress Indians

and all laws formulated by them were tyrannical by nature as they never

allowed free speech as it would endanger their colonial rule. After

independence, the law continued. The second view argued by the

rationalist is that it clamps the freedom of speech and expression.

India is not an isolated country in the world, constantly we are being

observed by many nations and any form of disturbance would be an

invitation to ignite many problems or civil wars within the nation. As a

nation and citizens in the global world, everyone has a right to express

their views, but as it is rightly conveyed in our Constitution, it should be

within the ambit of restrictions. What is a restriction? It is a very broad

60 Available at: https://www.nls.ac.in/resources/csseip/Files/SeditionLaws_cover_Final.pdf) (Last visited on 10 Sept. 10, 2016).

129

question to be answered in a single line. Taking sides to political parties,

or narrow view cannot be probably give the deep knowledge that the law

means. Loyalty is towards the nation and not towards any government.

We have to leave a rich heritage and tradition to the coming generation

and not squabble on small issues. The need of the hour is matured citizens

and matured nation which would inculcate an insightful thought on

freedom of speech and expression of great ideas as enshrined in our

Constitution and uphold the spirit of the constitution. We can only

conclude by saying the same old adage, “united we stand, divided we

fall”.



GOOD GOVERNANCE AND ITS CHALLENGES IN INDIA:

AN OVERVIEW

Sougata Talukdar*

Abstract

It is a universally admitted fact that the way of governance should always be good. No theory

of governance could be treated as good unless it is proved to be good in the context of its time.

From the ancient age, the concept of governance is changing with time. India’s democratic

experience of the last seven decades has clearly established that good governance must aim

at expansion of social welfare, involvement of its people in administration and development

of its citizens. Governance fails to become good governance not only due to its sluggish

nature but due to other inuential aspects like poverty, lack of justice, corruption etc. The

paper is an attempt to analyse the terms ‘governance’ and ‘good governance’ with their

characteristics and it also tries to nd out the challenges faced by governance in the path of

becoming good governance in general and in a democratic country like India in particular.

I Introduction

INDIA, THE largest representative democratic country, is considered as 1

a classical structured citizen- government partnership. Major changes

are being inaugurated in state and civil society in India today in the name

of good governance. In terms of the modern thinking, economic reforms,

good governance and democracy form three interrelated and mutually

supportive aspects of the development process. If the historical context of

the current emphasis on reforms and good governance is examined, it

will be seen that it represents yet one more stage in the thinking about the 2role of a developmental state.

The term governance implies the existence of the co-operation of people

and civil societies with the government machinery. Governance may be

taken as denoting how people are ruled and how the affairs of a state are

administered and regulated, on the other hand, the concept of good

* Ph.D. Scholar, Department of Law, University of Calcutta. 1 Chandra Sekhar, “Right to Information in Strengthening Participatory Democracy”, (Winter Issue) Global Media Journal 1 (2010).2 Sarah Joseph, “Democratic Good Governance: New Agenda for Change”, 36 (12) Economic and Political Weekly 1011 (2001).

131

governance is efcient governance that can live up to the expectations of 3the people.

II Meaning of governance

“Governance”, in general, refers to the combination of the process of

decision-making and the process by which decisions are implemented.

The term ‘governance’ can be used in various contexts such as

international governance, national governance, local governance, and

corporate governance. In democratic systems, government exists to

fulll functions such as maintaining security, providing public services, 4and ensuring equal treatment under the law. Landell-Mills and

Serageldin have dened governance as the use of political authority and

exercise of control over a society and the management of resources for 5

social and economic development.

Government is one of the factors of governance. Other factors involved

in governance may vary depending on the level of the government, place,

time and also on the given social structure. In rural and semi rural areas,

for example, other factors may include inuential land lords, association

of land lords, associations of peasant farmers, NGOs, cooperatives,

research institutes, religious leaders, nance institutions, political

parties, corporate houses etc. All factors other than government are

grouped together as part of the “civil society”.

Similarly, a formal government established by law is one of the means by

which decisions are arrived at and implemented. At the national level,

informal decision-making bodies, such as informal advisors, expert

committees, solo consultants, kitchen cabinets may exist. In some rural

areas powerful families or bodies may inuence decision-making

procedure. Such, informal decision-making is often the origin of corrupt

3 Ishan Krishna Saikia, “Good Governance and Human Rights: International and National Perspective” 2 (7) International Journal of Advancements in Research & Technology 124 (2013).4Dr. V. Govindu “Democratic Decentralization for Promoting Good Governance” 2 (1(4)) International Journal of Academic Research 91 (2015).5 Pierre Landell-Mills and Ismael Serageldin, “Governance and the External Factor”, (Washington, D.C., World Bank, l99l) 3 (1991).

Good Governance and its Challenges in India: An Overview


practices and result of corrupt practices.

III Good governance

The word “good” derives from the word ‘God’ and carries an innate

sense of judgment. And governance traditionally refers to the forms of

political system and the manners in which power is exercised in utilizing 6countries economic and social resources for development.

The concept of good governance has been receiving serious attention in

recent years not only in India but throughout the world. Good governance

in general implies higher level of organizational effectiveness than the

existing one without any change of organizational ideology. The meaning

of good governance may differ for various reasons. The World Bank

associates good governance primarily with capacity building and the

exercise of political power needed for efcient and effective

management of specic nation irrespective of its political system. It also

deals with the ability of the government to design and implement the

policies and to discharge government functions, in general. Good

governance is associated with efcient and effective administration in a 7democratic framework. Good governance can be dened as a mode of

causing improvement in quality of life of the people and also as a weapon

to face the emerging challenges of the society. In totality, governance to

be good governance must have the attributes of an effective, credible and

citizen friendly value caring structure and the movement should be

towards social welfare and people participatory legitimate administrative

system.

IV Origin of the concept of governance and good governance in

international level

The concept of ‘Governance’ is not new in our society. It is as old as

government itself. Both the terms, governance and government, are

derived from the old French words gouvernance and government,

6 Milk Moore, “Declining to Learn from the East” 24 (1) IDS Bulletin 36 (1993).7 H.K Asmeron, K Borgman and R. Hopee “Good Governance Decentralization and Democratization in Post Colonial State”, 41(4) Indian Journal of Public Administration 793 (1995).

133

respectively. Initially their meanings were quite similar, referring to acts

or procedure of acting of government. By the middle of 16th century,

however, meaning of the word ‘government’ evolved and by the early

18th century it further moulded to acquire the meaning of a governing

authority.

In this way the term governance gradually became marginalized, and by

the end of 19th century it was deemed to reect an incipient archaism. For

the next decade, it would hardly be used as a political term. In general the

term government was dened in terms of a governing authority,

including the political order and its institutional framework, while

governance was treated as the agency and process of governing, and was 8

often viewed as archaic. However, during 1980s at the early stage of

globalization the use of term governance became popular amongst the

jurists with an intention to emphasize on the process and manner of

governing to the notion of sustainable development. Meanwhile, the

institutions like IMF, the United Nations and its agencies, the World Bank

and international media were generous to pick up the term and use it in a

variety of ways. But with expansion of concept of globalization jurists

found that only the term governance is not enough to categories the

welfare character of the government. The term “good governance” will

be more appropriate to recognize its actions. Now, with the development

of third generation human rights, the ambit of good governance not only

remains limited to the duties of the state but also becomes a right of every

citizen of a nation.

V Characteristics of good governance

According to United Nations Economic and Social Commission for Asia

and the Pacic (UNESPACP) good governance has eight components:

a. Participation

Good governance can be achieved only when civil society has the

opportunity to participate during the formulation of development

8 Mikhail Ilyin, “Governance: What is Behind the Word?” 37(1) IPSA Participation 4 (2013)



strategies. It will make directly affected communities and groups a

participant in the design and implementation of programmes and

projects. Even where policies have a secondary impact on particular

localities or group of people, there should be a consultation process that

takes their views into account. Participation could be either direct or

through legitimate intermediate representatives. Participation needs to 9be informed and organized. This aspect of governance is an essential

element in fullling commitment and enhancing the quality of their

implementation. Lack of participation of citizens, turns the governance

into bad governance. Transformation from governance to good

governance is only possible, if there is possibility of increasing

participation of people in the mechanism of governance. The decit of

this indicator leads to the path of abuse of power, corruption and

aloofness in the administration.

b. Rule of law

Good governance requires fair, predictable and stable legal frameworks

that are enforced impartially. It also requires protection of human rights

particularly those of children and women, minority groups, indigenous

people, independent and imperial police force, independent judiciary and

bureaucracy, so that individuals may assess economic, social and cultural

opportunities and act on them without any fear of arbitrary interference or

expropriation. This requires that the laws, orders, ordinances and rules be

known in advance, and application of them should be consistent and fair.

If conict arises it should be resolved by an independent judicial system,

and that procedures for amending and repealing the existing laws are

publicly known.

c. Transparency

Transparency is the main pillar of good governance. It requires that

information related to government activities are available to the general

public and directly accessible to those who will be directly or indirectly

9 O.P. Dwivedi, “Common Good and Good Governance” 44(3) Indian Journal of Political Science 253 (1998)

135

affected by such actions and also the way of enforcement. Access to

information is the primary requirement of transparency which will bring

clarity about functioning of government institutions and organisations.

Right to Information Act of India plays a very effective role in this 10

regard.

d. Responsiveness

Good governance requires that institution and process try to serve all

stakeholders within a reasonable time frame. It is also required to prove 11

effectiveness of the government.

e. Consensus oriented

A governance can be good in respect of a society or country only if it can

reach a broad consensus among its people on subject what is best for the

community and how that can be achieved in a sustainable and prudent

manner and what will be best procedure to implement that.

f. Equity and inclusiveness

The wellbeing of a society depends on the overall development of its

people including women, poor, minorities, as well as other economically

and socially backward people without which real progress of the society

cannot be achieved. Their proper representation in the decision making

process is very important. Economic gap and concentration of power are

not a good advertisement for a developed society.

g. Effectiveness and efciency

In the modern world effectiveness and efciency are the basic criteria for

the governance of good in nature. This nature of governance can only be

achieved if the working of government or the institutions meets the needs

of its people by making the best use of resources at its disposal.

10 For further discussion see L. Stirton and M. Lodge, “Transparency Mechanisms: Building Publicness into Public Services”, 28(4) Journal of Law and Society 471 (2001).11 Banasree Devi, “Good Governance and its Working: at the Indian Context” 1(2) International Journal of Interdisciplinary Research in Science Society and Culture 78(2015).



h. Accountability

Accountability is a key requirement of good governance. Every

governmental system, whether it is public or private, should be

accountable to its people. Accountability cannot be enforced without

transparency and rule of law. Accountability is one of the prerequisites of

good governance. Accountability may be categorized into four broad

types: (a) Accountability is associated with the idea of answerability,

based on the premise that individual identity is determined by one’s

position in a structured relationship; (b) Liability, a second form of

accountability, sees individual identity rooted in more-formalized

expectations developed through rules, contracts, legislation and similar

relationships based on legalistic standing; (c) Accountability is

associated with role-based expectations. Such roles foster

blameworthiness as a basis for shaping and directing one’s behavior; (d)

Accountability expectations are derived from an individual’s perceived 12

status in a community where attributions come into play.

VI History of good governance in India

The concept of good governance is not new in India. Moreover the

concept became more and more developed through various periods of

Indian history.

Origin of the concept in India

The concept of good governance exists from time of king’s rule. The

rulers were bound by dharma, more specically called ‘Raj Dharma’,

which precisely means good governance to the people. Even though in

those days monarchy prevailed, there was no place for any arbitrariness

in the ruling. Raj Dharma was the code of conduct or the rule of law that 13was superior to the will of the ruler and governed all his actions. The Rig

Veda states “Atmano mokshartham jagat hitayacha” i.e., the dual

12 Shilpa, “Right to Information Act: A Tool to Strengthen Good Governance and Tackling Corruption”, 2(2) International Journal of Humanities and Social Science Invention 46 (2013). 13 Subhash C Kashyap, “Concept of Good Governance and Kautilya’s Arthashastra, in Good Governance: Stimuli and Strategies” (Aalekh Publishers, Jaipur, 2010).

137

purposes of our life are emancipation of the soul and welfare of the 14world. Thus, in general the public good includes the welfare of the

society at large and in the other words; the private good should be

subservient to the greatest good of all. Moreover, this description of good

governance can also be found in ancient Indian scriptures like the Jataka

Tales, Shukracharyas’s Nitisar, Aitreya Brahmana, Panini’s Ashtadhyayi

and Kautilya’s Arthashastra. Kautilya’s system of governance was quite 15modern in concept and contemporary in operational guidelines. Even

the two ancient epics, Ramayana and Mahabharata, have substantial

relevance even in this modern world in terms of basic principles of

statecraft and governance. Santi Parva of Mahabharat has devoted

considerable space to Raj Dharma which aims to establish good 16governance in the society. We can nd that the most of the basic features

of modern day concept of good governance, participation of people in

decision making, responsiveness of the government, well being and

prosperity of the people, efciency of administration, overall

development of the political community, standard of life, ethical

awareness, recognition of human dignity and economic afuence have

got prominent place in the administrative structures postulated by

Kautilya in his Arthashastra. This not only shows the great concern of

the philosopher for the well being of people but also brings forward the 17

‘Indian’ model of good governance before the academic society at large.

Development during Mughal rule

th thDuring period of 15 to19 century India was ruled by Mughals and they

brought drastic and welcoming changes in the governance system which

14 O.P. Dwivedi and D.S Mishra, “Good Governance: A Model for India” Handbook of Globalization, Governance and Public Administration, (Taylor and Francis, New York, 2007).15 Sanleev Kumar Sharma ”Indian Idea of Good Governance: Revisiting Kautilya’s Arthshastra” 17-18(1-2) Dynamics of Public Administration 8 (2005).16 Sanjeev Kumar Sharma, “Good Governance in Ancient India: Remembering Kingship in Shantiparavam of Mahabharat” 4 (1) Meerut Journal of Political Science and Public Administration, 109 (2003).17 P.Chitra and M. Neelamalar “Right to Information Act – A Tool for Good Governance and Social Change through Information Technology” 4(8) International Journal of Scientic & Engineering Research, 106(2013).



was a combination of certain features of Arabic administrative concept

and certain classical Indian practices. Arabic Pattern is reected in

separation of two political functions, namely governorship as the head of 18

military and police and treasury as the head of the revenue, ancés, etc.

Development during British rule

East India Company was the founder of British rule in India. In the early

days the company came to India with the trading purpose but as the time

goes they became the real ruler of India. They changed the frame work of

administrative system slowly and steadily. The two reports of 1854 one

by Stafford and Charles and other by T.B. Macaulay shows the system

designed by the British rulers for governing India. As the Public services

structure shows, the governance during the Raj had, as its objective,

Political consolidation, economic exploitation and administrative

elimination, through which the colonial masters maintained a tight hold 19over the empire. As the time goes these British rulers had taken certain

steps for the development of India, though the main purpose behind those

development work was to impose British rule over the native people

more emphatically and enjoyment of more and more benets as rulers.

These development works had a good impact upon the Indian governance

structure in a long run.

After independence

Leaders of the independence movement in India were aware of the

existing inequities and injustices in the society. On achieving

independence in 1947, they had the choice to adopt governance either by

an authoritarian rule or through the Rule of Law and they fortunately

chose the latter one. Over the subsequent years India has experienced

signicant political and economic progress. Democracy in India has

indeed put down rmer roots and economic growth accelerated. At the

time of framing our constitution, the framers made a conscious and

18 Gagandeep Dhaliwal, “A Review on Human Rights and Good Governance and Status of Human Right in India” 3(2) International Journal of Education and Applied Research 25(2013).19 Ibid.

139

deliberate effort to adopt democracy or rather the democratic way of life

as the backbone of our constitution. In the preamble at the time of stating

the objects of our constitution, it is clearly stated that constitution aimed

at securing for all its citizens justice, social, economic and political,

equality of status and opportunity, besides liberty of thought, expression,

belief, faith and worship and fraternity. Constitution declares that there is

right to equality before law and equal protection of law available to every

individual. Even no person shall be deprived from life and personal

liberty except according to the procedure established by law. By

providing this framers tried to curve the arbitrary use of authority by the

people who are in power. Our Constitution also provides real freedom for

each of its citizens. Civil and political rights were, therefore,

incorporated in the Constitution as fundamental rights in Part-III and

made enforceable through judicial activism. The rationale underlying

these rights being that human rights ow from the common humanity and

inherent dignity of every human being irrespective of race, religion,

caste, color, gender, place of birth or status. These rights are not

negotiable and no compromise with their violation is permissible.

In Part-IV of the Constitution, with the aim of creating a welfare state,

economic, social and cultural rights were enshrined as directive

principles of the state policy. These are the guiding principles of

governance. The inter-dependence of both sets of rights is essential for 20

proper development of human personality. The legislature from time to

time passed certain acts, rules, orders etc. for achieving the goals set up

by the Constitution. Though as per Article 37 of the Constitution,

directive principles are not enforceable by court but legislature by

enacting various acts on the basis of the provisions of directive principles

made them enforceable indirectly. The Constitution also cast a duty upon

the government to preserve and promote dignity of the individual and

promote national unity. And with the recognition of human rights in the

20 Madhvi Bhayani, “Challenges of Corruption and Good Governance: A Human Rights Perspective” 71(6) International Proceedings of Economics Development and Research 24 (2014).



international arena, human rights protection and promotion becomes one

of the posthumous goals of good governance. Thus, in assessing the

quality of governance the means employed and the result achieved in

fullling the above objectives have to be the real criteria.

VII Challenges of good governance in India

The Indian governance scenario during the last 69 years is a rather of

gloomy one, uninspiring and dismal. After independence, there was a

glimpse of hope for rst few decades; thereafter the scenario has changed

dramatically towards the worse. During the freedom moment our

national leaders through various objectives like swaraj, ahimsa,

Satyagraha wanted to introduce good governance in India. After

independence the Constitution of India was framed by keeping in mind

the moral and human values and inclusiveness of all in the governance of

the country. The system failed on various points, the major ones being:

vision and mission; lengthy legal system; bureaucratic dependency;

corruption; population; education; and leadership vacuum. Moreover,

the process of modernization and social, economic and political changes

over the past few decades have given rise to a new set of problems in the

arena of governance. These are lack of women empowerment, growing

incidence of violence, environmental security, and lack of empowerment

of socially and economically backward people, challenges of

globalization, changes in science and technology. Unnecessary delays in

providing justice, mindset of the people, and complex procedure of

administration, and over centralisation of administrative system have

rendered even the best of schemes ineffective. Bureaucracy is called the

engine of good governance. But because of corruption and lack of

willingness to work existing amongst our bureaucrats, our government

cannot achieve success in implementation of these programmes.

Securing justice

The Constitution framers enshrined the concept of securing justice in the

preamble and also effort has been made to secure proper working of an

independent judiciary. But till date lakhs of people in India failed to

141

access the justice when required. There are various inter-related aspects

of securing justice including security of life and property, access to

justice, and rule of law.

The most important duty of the State is to provide security of life and

property of every citizen. This responsibility of the Indian nation-state is

being seriously threatened particularly in areas affected by terrorism

(Jammu and Kashmir, Punjab), insurgency (North-Eastern States), and

naxalite violence in 150 districts of India’s mainland. Union and State

governments fail to take strong actions to overpower the elements of

terror, insurgency and naxalite violence.

Access to justice is one of the basic human rights recognized at the

international level. There should proper application of law to protect the

interest of every individual. In actual practice there are several

countervailing factors. Some citizens do not know their rights. The most

severe challenges in this respect are the length and cost of adjudication as

legal proceedings took years to resolve and lakhs of rupees to determine

the rights and the judicial system lacks personnel and logistics to deal

with these matters. State has a duty to provide free legal aid, speedy trail

and fair trail to every individual who came before the judiciary for proper

determination of their rights. Systematic approaches are, therefore,

needed for strengthening access to justice. At the same time ad hoc

measures are required to provide remedy to the needy citizens. Even to

represent the unorganized sector the concept of public interest litigation

is incorporated in the Indian legal system. But full utilization of the

machinery is far to achieve.

Empowerment

Empowerment is the most important aspect for proper participation in the

decision making policy. Poverty reduction is an empowering approach

and it needs to be based on the conviction that poor people have to be both

the object of development programmes and principal agency for

implementation of that programmes. Our Constitution is committed to

two different set of theories. First, the principle of equal status and



opportunities to all and the second, the principle of redress of

educational, economic and social backwardness. However,

notwithstanding, an increasing role of various other social institutions in

the modernization and progress of the country, the state continues to have

a leading say in transformation of society to make it just and equal.

Our Constitution framers provide special provisions for the reservation

for the scheduled castes and schedules tribes people. The Supreme Court 21in Indira Sawhney & Others v. Union of India, while upholding the

reservation of 27% of vacancies in the civil posts and services in the

Government of India in favour of other backward classes provided for

exclusion of socially advanced persons or sections among them

commonly known as “the creamy layer”. But till today the term creamy

layer has not been properly dened by the government and even though

some times the initiative has been taken but that was in vain due vote bank

pressure. So the general caste people have now become minority one.

The reservation should not be on the basis of caste system. It should be on

the basis of economic capacity of the individual, only then proper

empowerment can be achieved. There is another aspect of empowerment

that is women empowerment. Women should be treated on the same

footing with the men. With the development of the society now various

reservations are recognized for the women within the parliament and

outside the parliament. But we should understand that only reservation

will not change the real status of women and backward class people,

rather its required education, elimination of poverty, employment, food

and other basic necessities. Only then these people can be properly

empowered. Access to information is another way of empowerment of

the common man otherwise commoners remain ignorant of various

schemes and are unable to resist when their rights become causality. At

the same time, people remain ignorant in terms of the ways and means

through which they can obtain their entitled rights from the concerned 22departments legally.

21 1992 (3) Suppl. SCC 212. 22 Keshabananda Borah, “Right to Information Act: A Key to Good Governance” International Journal of Humanities and Social Science Invention 11 (2013).

143

Employment

Unemployment is the most burning problem in the present Indian society.

Creation of new employment opportunity for the youth is one of the most

challenging tasks for India’s political economy. At present India’s

working age population is over 50 per cent. This share will continue to

rise up to 60 per cent within next three decades. A fast-growing working

population will ensure more skilled workers, curtail of cost, more saving

and hence more investment. This mechanistic view of growth assumes

that demography is destiny. But population growth by itself does not add

to prosperity, unless there is proper educational system and employment

opportunity. If we fail to generate employment and equip the youth with

good quality education and practical training, India’s demographic

dividend could become a demographic liability. With the effect of

globalization the population pressure over the urban areas are increasing

rapidly. People from various rural parts of the country are coming to the

urban areas for their livelihood. But governments fail to provide

employment opportunity to them. Even now private organiasations are

playing an important role in this respect. They are providing job

opportunities to lakhs of educated youth.

But it has to be admitted that though there is a growth in private sector still

some issues related to it are also accompanied with them. The basic

payment structures are not at all satisfactory. Even after having higher

education youths are failing to obtain suitable employment for them.

With the impact of urbanization competition are getting much harder one

and it has a direct impact upon the mental condition of the youths, which

is again very much dangerous for the nation’s future. There is

requirement also to improve the working condition of the labour, because

they are the backbone of the modern industrial society. Even there is a

requirement to promote the use of modern technology in the agricultural

eld to increase the productivity. Marketing of the agricultural good and

abolition of middle man policy are another aspect that requires attention

immediately. If there is growth in the village economy that will decrease

the trade of urbanization and also will has a clear impact upon the



employment picture of the nation.

Delivery of welfare services

From the Constitution it is very much clear that India is a welfare state. It

is the basic duty of the governments to provide necessary welfare

machinery like food, education, health care to the citizens of India. The

objectives of public service should be based upon the principle of 23

common public well-being or the well-being of all citizens. It is true that

both the Government of India and the State Governments have been

allocating a fairly good size of public funds to health, education and

public distribution system. But a searching scrutiny will reveal that these

facilities fail to reach to the poor class of the society. The principal feature

of the scheme of effective delivery of services needs to be seen in the

context of the fact that demands have to ow from the bottom up and not

the top down. But practically the situation is different. The schools and

health centers in areas where poor people live are often not functioning

and extremely low in technical quality.

There are three institutions which have played the most important roles in

improving public service delivery in India: (i) the judiciary; (ii) the

media; and (iii) the civil society. The Supremacy and independence

character of the judiciary have a great inuence over the other organs of

the government. Writ jurisdiction of the Supreme Court and high courts

played an important role in this respect. public interest litigation has

emerged as the most powerful tool in the hands of individuals as well as

nongovernmental organizations to force the governments to perform

their duties properly. In recent years, the Supreme Court has intervened in

diverse matters to improve delivery of services. The apex court

recognised right to education, right to food, and right to health as

fundamental right. Unfortunately, the judiciary is also suffering with

millions of pending cases, non disposal of the cases, lengthy procedure,

and inefciency of the ofcials. From its early time media, both

23 M. Shamsul Haque, “The Diminishing Publicness of Public Service under the Current Mode of Governance”, 61(1) Public Administration Review 65 (2001).

145

electronic and print, have emerged as a voice of the common people

which in turn has exerted enormous pressure on public ofcials to deliver

goods. The large numbers of non-governmental organizations in

different elds become the spokespersons of the concerns of the public

with a degree of regularity. But till delivery of welfare services are

lagging behind due absence of proper infrastructure and inefciency and

negligence of the ofcials.

Bureaucracy

In India the bureaucracy system always is the blocking stone for fast

implementation of the people common cause and government policies.

The Indian administrative system is fully dependent upon this system.

The success of the government policy always depends upon the

willingness and efciency of the bureaucrats. Bureaucratic complexities

and procedures make it difcult for a citizen as well as the civil society to

get the fruit of the delivery of services. The liberalization of the Indian

economy has created an environment in which there has been increasing

emphasis on responsive administration. This requires transparency in

administration, drastic reforms in civil services and a system which

functions as a means for the quick redressal of citizens’ grievances 24.

Moreover, the lack of accountability of the government ofcials is the

cause of people’s negative approach over government schemes. Secrecy

that has been associated with the administrative system from colonial

times, besides generating corruption, has also led to injustice and

favouritism.

There is another problem too. The stability and efciency of the

bureaucrats are very much dependent upon the will of the political

leaders. Sometimes tenure of a bureaucrat in an ofce is less than its

normal tenure, which also hamper the development procedure. Stable

government with majority is always preferable than a united front

government. Even the multi party politics in India is also a reason for lack

24 Chetan Agrawal, “Right to Information: A Tool for Combating Corruption in India” 3(2) Journal of Management & Public Policy 26 (2012).



of government efciency. Emergence of regional parties is barriers for

nation’s wide development procedure. So there is a requirement of

transparency, accountability, efciency, willingness to work on the part

of the bureaucrat, which is not present in the Indian administrative

scenario.

Criminalisation of politics

Criminalization of politics is one of the major challenges to good

governance since it has an immediate bearing on the choice of candidates

in an election and goes to the root of expectation of good governance

through elected representatives. There are members of Parliament of

India and Vidhan Sabhas who are accused of various criminal and white

color crimes. A political culture seems to be taking roots in which

members of State Legislatures and Parliament are using their ofces for

seeking private gain and for making money. Such elements have also

found place in Cabinet of Ministers and due coalition politics a Prime

Minister or a Chief Minister cannot take strong actions against them. The

criminalisation of the political process always has a baneful inuence on

governance. The unholy nexus between politicians, civil servants, and

business houses also played an important role in determining governance

policy. The process of judicial accountability has succeeded in sending

several legislators and ministers to jail. But by taking bail or with an

excuse of physical illness they are enjoying every available benet. There

should be an end to this practice. The right to contest in an election should

be taken away from the convicted criminals and interim suspension on

this right should be there if charge has been framed against any political

leader on the basis of any accusation of committing any criminal offence,

until they are acquitted by the appropriate court . Election commission

has a vital role to play in this respect.

Corruption

Corruption in India is the biggest challenge to development. The culture 25of corruption has become well entrenched in the society. Good

25 Jeevan Singh Rajak “Right to Information Act: A Vital Tool to Fight against Corruption in India”, International Journal on Political Science and Development 68 (2014).

147

governance implies the process of decision-making and its

implementation free from abuse of power and corruption. Culture of

secrecy resulted in fertile growth of corruption. In face of non-

accountability of the public authorities and lack of openness in the

functioning of government, abuse of power and corrupt diversion of the 26public money was the order of the day. Human greed is the driver of

corruption. But the structural incentives and failure to punish the corrupt

have contributed to the rising curve of graft in India. In the present

scenario in every footings of administration corruption became a part and

parcel. Our structure forces every individual to be a part of the same. The

complex and non-transparent system of command and control, monopoly

of the government as a service provider, lack of information and

awareness and underdeveloped legal framework have provided

incentives for corruption in India. A conscious effort for spreading of

public awareness and also for empowering the existing anti-corruption

agencies would be required.

VIII Good governance and judiciary

After the independence, Indian judiciary assumes a signicant position

as it is the guardian and custodian of the Constitution. Even Constitution

framers recognized supremacy of judiciary over other organs of the State.

It guards against the violation of fundamental rights, against

discrimination, abuse of state power, arbitrariness etc. One of the most

important principles of just democratic governance is the presence of

constitutional limits on the extent of government power. Such limitation 27

is well imposed in form of basic structures of Constitution of India. Such 28 29limits include supremacy of the Constitution, periodic elections,

26Devakumar Jacob, “Collateral Damage: An Urgent Need for Legal Apparatus for Protection of the Whistleblowers & RTI Activists” 19(4) IOSR Journal of Humanities and Social Science 1 (2014).27 Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461.28 In Keshavananda Bharti’s Case, Sikri, C.J. explained that the concept of basic structure included Supremacy of the Constitution, Republican and democratic form of government, Secular character of the Constitution, Separation of powers between the legislature, executive and the judiciary, Federal character of the Constitution.29 Indira Nehru Gandhi v. Raj Narain, (1975) 3 SCC 34.



30 31guarantees of civil rights and an independent judiciary, judicial review, 32secularism, separation of power between the legislature, executive and

33 34the judiciary, parliamentary form of government, which allows

citizens to seek protection of their rights and redness against government

actions. The doctrine of non-amendability of the basic structures of the

Constitution implies that there are certain provisions in the Constitution

which cannot be amended even by the prescribed procedure given for the 35amendment of the Constitution. More over this non-amendability of

basis structure put a limit on the amending power of the parliament and in

various cases the apex court declared various amendments as

unconstitutional as those are violating the basic structure doctrine. These

limits help other branches of government to remain accountable to each

other and to the people at large. An independent judiciary is important for 36preserving the rule of law and is, therefore, the most important facet of

good governance. There is no area where the judgments of the Supreme

Court of India have not played a signicant contribution in providing

good governance, whether it is environment, human right, gender justice,

health care, police reform, elections etc.

The Supreme Court has, over the years, elaborated the scope of

fundamental rights and thereby upholding the rights and dignity of the

individual, in true spirit of good governance. In case after case, the court

has issued a range of commands for enforcement of law, dealing with an

30Union of India v. Sankal Chand, Himmatlal Sheth, AIR 1977 SC 2328.Kumar Padma Prasad v. Union of India, AIR 1992 SC 1213. State of Bihar v. Bal Mukund Shah, AIR 2000 SC 1296, Supreme Court Advocates-records- Association v. Union of India, AIR 1994 SC 268. 31 S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386; L.Chandrakumar v. Union of India, AIR 1997, SC 1125; Waman Rao v. Union of India, AIR 1981, SC 271; Minerva Mills Ltd. and Ors. v. Union of India and Ors. AIR 1980 SC 1789 etc.32 S.R. Bommai v. Union of India, AIR 1994, SC 1918, Poudyal v.Union of India, (1994) Supp.1 SCC 324.33 Uee Electrical Engineers P. Ltd. v. Delhi Development Authorit, 2005 (1) CTLJ 363 Del.34 State of Bihar v. Bal Mukund Sab, AIR 2000 SC1296.35 Ashok Dhamija, ‘Need to Amend a Constitution and Doctrine of Basic Features’, 341(Wadhwa Nagpur, 2007)36Kihoto Hollohan v. Zachillhu and Ors., AIR 1993 SC 412.

149

array of aspects of executive action in general, and of police at the cutting

edge level in particular. Hence, it is evident that the Indian judiciary has 37played a proactive role in realizing various rights of its citizen.

38 39Education for all and equal rights of minorities in this regard are other

aspects which have clear inuence on the components of the good

governance and judiciary played an effective role in securing the same

and forced the legislation to incorporate various rights such as right to

education etc. as fundamental rights under the Constitution of India by

way of amendment. But at the time of responding to public interest

litigation on making good governance an explicit right, the Supreme

Court held that it was not in favor of declaring good governance as a

fundamental right as this would bind the court to looking into every

aspect of governance which will put more burden upon the already 40overloaded judicial system of the country.

Further, the constitution of India recognised protective discrimination

under article 15 (4) and 16 (4). Apparently these are in contradiction with

the concept of equality before law. But the judiciary has chosen the way

of make harmonies construction as a mode of interpreting this two. 41Primarily in M.R. Balaji v. State of Mysore and T. Devadasan v. Union

42of India the Supreme Court held that articles 15(4) and 16(4) are the

exception to the general rule embodied in articles 15(1) and 16(1)

respectively as well as in article 14. But in State of Kerala v. N.M. 43

Thomas by majority the apex court rejected the prior view and held that

37 Ansbu Jain, “Good Governance and Right to Information: A Perspective” 54 (4) Journal of the Indian Law Institute 506 (2012).38 In Re. Kerala Education Bill, 1957. 1959 SCR 995; The Ahmedabad St. Xavier’s Society v. State of Gujarat (1974) 1 SCC 717; St. Stephen’s College v. University of Delhi (1992) 1 SCC 558. 39 Mohini Jain v. State of Karnataka (1992) 3 SCC 666; Unni Krishnan v. State of Andhra Pradesh (1993) 1 SCC 645; T.M.A.Pai Foundation v. State of Karnataka (2002) 8 SCC 481; Islamic Acadamy of Education v. State of Karnataka (2003) 6 SCC 697; P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537.40 Godbole, Madhav, “Good Governance: a Distant Dream” 39(11) Economic and

Political Weekly 1103 (2004). 41 AIR 1963 SC 649.42 AIR 1964 SC 179.43 AIR 1976 SC 490.



articles 15(4) and 16(4) were emphatic assertions and directions to the

State to take effective afrmative steps to enforce the concept of equality

as laid down in articles 14, 15 and 16 and to achieve that State can make

reservation in order to provide adequate representation of SCs, STs and

other backward class people in the higher education and state 44employment. Moreover, In the Mandal Commission case, the Supreme

Court has clearly and authoritatively laid down that the socially advanced

members of the backward class, the “creamy layer”, has to be excluded

from the benets provided by the state and the benet of reservation

under article 16(4) can only be given to a class which remains after the

exclusion of the “creamy layer”. But as regard the “creamy layer” among 45the SCs and STs , the Court has so far declined to apply but there is no

constitutional obstruction in applying it in future.

Criminalization of politics is another major challenge in achieving good

governance. Right to vote ows from article 19(1)(a) of the Constitution.

Similarly right to get information is ‘a natural right’ derived from the

concept of democracy. In the case of Union of India v. Association for 46

Democratic Reforms, the apex court brought a major electoral reform

by holding that a proper disclosure of the antecedents by candidates in

election in a democratic society might inuence intelligently the

decisions made by the voters while casting their votes. The Court further

observed that casting of a vote by a misinformed and non-informed voter,

or a voter having a one sided information only, is bound to affect the

democracy seriously, and now it is obligatory on the part of candidates at

the election to furnish information about their personal prole,

background, qualications and antecedents. This made clear impact on

the process of achieving good governance. Accountability of the

executives is also important and in few cases the apex court even 47

cancelled the appointment on that ground. So the judiciary by using

44 Indra Sawhney v. Union of India AIR 1993 SC 477.45 Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1; Avinash Singh Bagri v. IIT Delhi, (2009) 8 SCC 220.46 (2002) 5 SCC 294.47 PIL v. Union of India, (2011) (3) SCALE 148.

151

judicial review plays a role of philosopher and guide in the path of good

governance.

IX Role of e-governance and social media

The “e” in e-governance stands for ‘electronic’. Thus, e-governance is

basically associated with carrying out the functions and achieving the

results of governance through the utilization of information and

communications technology. While the main motive of governance is to

safeguard the legal rights of all citizens, an equally important aspect is

concerned with ensuring equitable access to public services and the

benets of economic growth to all. It also ensures government to be

transparent in its dealings, accountable for its activities and faster in its

responses as part of good governance. In this era of technology all these

can be achieved through proper implementation of e-governance. In the

year 1987, government of India has taken the rst step towards e-

governance by launching national satellite-based computer network.

After that various schemes in the eld of banking, pension, immigration,

visa, post, public distribution system, health care etc. has taken by

the central and state governments. e-ofce and e-corner are

successfully acting as a popular service provider. Recently the unique

identication project is conceived as an initiative that would provide

identication for each resident across the country and would be used

primarily as the basis for efcient delivery of welfare services. Even most

recently m-Governance, i.e., mobile governance becomes a part of

effective tools for providing e-governance to citizen at large.

But in a country like India e-governance also facing certain challenges

like technological inefciency, cost, stereo type mentality of government

ofcials and political resistance. But all these can be handled if

appropriate steps can be taken towards capacity building within the

government and creation of general awareness about e-governance

among the citizens as e-Governance is no longer a matter of choice, but

an absolute need of the day.

At present the media are not conned to print and broadcast. With the



rapidly changing and converging technologies, new media, especially

the ‘social media’ are also mushrooming and becoming part of everyday

life of the informed citizens. As much as traditional media can promote

good governance, social media are also playing important roles in this

aspect. The role of the social media, in promoting good governance is

being recognized by the government and policy-makers. Now with the

help of computer social networks such as Facebook and Twitter

information can be spread among the millions in a blink of an eye. The

youth successfully used these modern tools to plan protests and create

social and political change all over the world. In India recently at the time 48

of protest against Delhi Rape Case the power of the social media forced

the government the make a change in existing laws. As a whole

technological development has a clear impact upon the governance

procedure and gives a platform to express the opinion regarding

government activities and promote certain path changing movements all

over the globe.

X Conclusion

Governance is the weak link in our quest for development, prosperity and

equity. It is also a widely accepted fact that good governance is dependant

not merely upon good policy advises but more importantly on the

processes of achieving them and implementation of them. Favouritism in

resource allocations, excessive government interventions, and

widespread corruption has a greater inuence on the non-development of

the lower class people of the society. The governance, which fails in the

eld of proper service delivery, cannot take steps towards prosperity.

Poverty reduction depends on the quality and timely delivery of services

to poor people. Elimination of corruption and transparent governance are

not only moral imperatives but requirements for a nation aspiring to catch

up with the rest of the world. Improved governance in the form of non-

expropriation contract, enforcement and decrease in bureaucratic delays

always have a great impact on raising the living standard of every

individual of the society signicantly.48 State v. Ram Singh and Anr., March 13, 2014.

153

The renowned French philosopher Michel Foucault once opined, power

is derived from knowledge and information is the basic component of

knowledge. The free access to information and participation of people in

government decisions develops the transformation of the governance

into good governance. So, it is the duty of government to inform citizens 49about day to day happenings whatever within the government. India

always took pride in being the largest democracy, but with the passing of

the Right to Information Act in 2005, it has also become an accountable, 50

interactive and participatory democracy. This right has catapulted the

Indian citizen on a pedestal from where he can take stock of

administrative decisions and actions and make sure that his interests are 51protected and promoted by the government. By this Act the citizen of

India can now question, inspect, review and assess government acts and

decisions and documents to ensure that these are consistent with the

principles of public interests, good governance and justice and thereby

will take the nation in right direction of overall development. The Act has

produced a better impact on the quality of the life of the poor and

marginalized and also brought positive changes in the governance. 52Information is now the sole of every government. The necessity for

transparency and efciency in the governance policy and proper

implementation of that policy in qualitative way become the call of time

to achieve the goal of good governance. It is always important duty of the

government to analyse their policy, implementation system, redressal

procedure thoroughly and to improve it whenever necessary. So at the

end we can say for achieving good governance in a country like India,

there should be constructive mechanisms and procedures that will enable

the three principal actors – government, market and civil society – to play

in concert role and to supplement each other’s capability, and then only

we can get the desired result of good governance.

49Rouf Ahmad Bhat, “Right to Information Act: A Tool For Good Governance” 5 (5) Research on Humanities and Social Sciences 185 (2015).50 Sunderam, Karthik, “Right to Information and Democracy” 4 Journal of Symbiosis Law College 104 (2004).51 Smita Srivastava, “The Right to Information in India: Implementation and Impact” 1 (1) Afro Asian Journal of Social Sciences 1 (2010).52 C.L.V Sivakumar, “The Right to Information Act: 2005 Perspective-practice-issues” 1(2) International Journal of Management & Business Studies 28 (2011).



* Ph.D Scholar, National Law University, Jodhpur.

CORPORATIZATION OF AGRICULTURE AND ITS EFFECT

*Tejendra Meena

Abstract

Corporatization of agriculture is a very crucial issue not only for India but for most of the

world and specically developing countries like India where a huge number of the

population is involved in primary sector of production. This article focusses only on the

Indian phenomena of corporatization of agriculture but will also try to explain the meaning

of corporatization and the difference between corporatization and privatization.

Subsequently, the process of corporatization of agriculture in India shall also be explained. It

also discusses the impact of corporatization of agriculture in India. It also analyzes some of

the law reforms . Lastly, the author and policies in India relating to agricultural labour

provides a conclusion along with some recommendations to overcome the agrarian crisis

Indian facing today due to corporatization of agriculture sector.

I Introduction

THE CONCEPT of ‘corporatization of agriculture’ is making huge

impact in the countryside and is affecting more than 60% of the

population. The process is happening rapidly through various

government polices and it happened more rapidly in the last two decades.

It involves the issues of poverty, farmer’s lives, unemployment,

inequality, unsustainable growth, food security; quality of food and many

such allied concepts, which have not been given much of an importance

by the Indian media.

What is corporatization?

Corporatization means changing the structure of the government owned

entity into a legal entity with the structure as found in the public trade

companies, as dened by Investopedia. Corporatization is not the same as

privatization. Baker nicely explains what corporatization is while

comparing it with the privatization. ‘Privatization entails a change of

ownership or handover of management, from the public to private sector.

Corporatization entails change in resource management practice that

introduce commercial, such as efciency, methods, such as cost benet

assessment, and objective such as prot maximization. Privatization,

155

thus entails organizational change, as a distinct form of corporatization,

which entails institutional changes (in the sociological sense of rules, 1norms and customs). So corporatization is transferring the works of

government public service to a separate legal entity which is owned by

public sector and have dictation from the government, generally

privatization comes after the corporatization. India has had privatized the

many sector like natural gas exploration etc.

What does ‘corporatization of agriculture’ mean in India?

Further, if we go in detail of the means of production land comes the rst

but till now corporations are not allowed to hold land for agriculture

purpose. The new introduced farming polices in India adopt some new

trend like contract farming, leasing of land to corporate for farming

which is the uppermost form of corporatization in India.

Corporatization of agriculture has been explained as the agenda of

neoliberal policies in the agriculture sector. It is further said that it is a part

of the broader agenda of globalizing Indian agriculture. For this, goods

have to be produced at the cheapest rates in order to be able to compete in

the world market. Earlier, production was based on self reliance and self

sufciency, which now needs to be abandoned and restructured to suit 2

global markets.

II Process of corporatization of agriculture sector

There are various factors which can be termed as being a part of

corporatization of agricultural sector in India but it includes mainly

following:

1. Corporatization of fertilizers industry

1Magdhal, Jorgen Eiken, “From Privatization to Corporatization - Exploring the Strategic Shift in Neoliberal Policy on Urban Water Service,” Available at:, http://www.slideshare.net/FIVAS/from-privatisation-to-corporatisation-12173631?next_slideshow=1 (Last visited on Sept.12, 2016). 2Jayati Ghosh, “Corporate Agriculture: The Implications for Indian Farmers - Corp_Agri.pdf,” Available at: http://www.macroscan.org/fet/dec03/pdf/Corp_Agri.pdf. (Last visited on Sept. 14, 2016).

Corporatization of Agriculture and Its Effect


2. Corporatization of seed processing industry

3. Corporatization of electricity generation and distribution.

4. Corporatization of water distribution

5. ContractfFarming

6. Corporate farming

1. Corporatization of fertilizers industry

When India started Green Revolution, India used some hybrid seeds

which produce more yields with the help of fertilizers. India from that

time only adopted policies of liberalizing fertilizer production and

distribution. Government decontrolled the price and distribution of 3potassic and phosphate fertilizers in 1992. In 1997, the government

introduced policy changes towards greater investment in private sector of

fertilizers. Because of this, the share of the public sector started to decline 4

and that of the private and co-operative sector to improve. These

ultimately led to price control in the hands of a few corporate

organizations. In 1961 when India just started with the Green Revolution,

public sector was having 87% of the nitrogen nutrient fertilizer

production capacity, whereas just before era of liberalization in 1991 it

was 52.9% and now before two years it was 29.4%. Same gradual decline 5

can be seen in other nutrient fertilizers with phosphate. Again the price

of the fertilizers was affected because the raw materials used in it were

controlled by a few corporations. For the production of urea and other

ammonia based fertilizers, methane presents the major input which is

gained from natural gas/associated gas, naphtha, fuel oil, low sulfur

heavy stock (LSHS) and coal. In the more recent past, production has

more and more switched over to the use of natural gas, associated gas and

naphtha as feedstock. Out of these, gas is most hydrogen rich and easiest

3"Fertilizer Policy | Government of India, Department of Fertilizers, Ministry of Chemicals and Fertilizers,” Available at: http://fert.nic.in/page/fertilizer-policy (Last visited on Sept.12, 2016).4Ibid.5 Ibid.

157

6to process due to its light weight and fair abundance within the country.

Gas prices are controlled by the few corporations in India which

automatically affect the price of fertilizers.

The corporate are now able to control major portion of the production of

fertilizers. The scarcity of fertilizers was so much that the fertilizers

distributed in the presence of the police personnel in 2008-09. The Hindu

reported this crisis with an article titled ‘Fertilizing prot, sowing misery’

which indicates that this crisis will lead to huge prots to private fertilizer

producers. The country often faces such crisis when ironically the Indian 7fertilizer industry ranks third in the world.

2. Corporatization of seed industry

India has reformed its technology as a part of its liberalization process

since the late 1980s and 1990s. The government launched a New Seed

Industry Development Policy in 1988 that was supposed to encourage the 8

private sector to play a larger role in the seed industry. Today, the Indian

seed industry with turnover of over Rs. 15,000 crores ranks fth in the 9world. According to the report of the Seed Division of Agriculture

Department, private sector has started to play a signicant role in the seed

industry over the last few years. At present, the number of companies

engaged in seed production or seed trade is of the order of 400 or 500.

However, the main focus of private seed companies has been on the high 10value low volume seeds. Government also has corporatized structure in

the name of public sector industry.

6 Ibid.7P.Sainath, “Fertilizing Prot, Sowing Misery -Opinion- The Hindu, Available at: http://www.thehindu.com/todays-paper/tp-opinion/fertilising-prot-sowing-misery/article1278237.ece. (Last visited on Sept. 16,2016).8“Liberalization’s Impact on the Indian Seed Industry: Competition, Research, and Impact on Farmers | Seed buzz,” Available at:, http://www.seedbuzz.com/knowledge-center/article/liberalization%E2%80%99s-impact-on-the-indian-seed-industry-competition-research-an (Last visited on September 16, 2016). 9 M . R . S u b r a m a n i , “ S e e d s o f F o r t u n e | F r o n t l i n e , ” Av a i l a b l e at:http://www.frontline.in/other/data-card/seeds-of-fortune/article4803870.ece. (Last visited on September 16, 2016).10"Seednet India | Ministry of Agriculture, Government of India,” Available at: http://seednet.gov.in/. (Last visited on Sept.12, 2016).



3. Corporatization of electricity generation and distribution

Electricity is the sub.-matter of the Concurrent List according Entry 38 of ththe VII Schedule read with article 245 of the Indian Constitution. Before

1991 Indian electrical power sector was publicly owned and vertically

integrated. Following India’s independence in 1947, the Electricity Act

of 1948 led to the establishment of State Electricity Boards (SEBs),

operating vertically-integrated generation, transmission, distribution,

and retailing activities. The national and state governments shared

control of the power sector, with SEBs exercising signicant autonomy,

but relying on the national government in the form of technical advice

from the Central Electricity Authority (CEA) and nancial support from

the Power Finance Corporation (PFC).

In 1991 nancial crisis brought on by high levels of indebtedness at all

levels of government triggered wide-ranging reforms of much of the

economy, including the power sector. Indian Government allowed

participation of private rms in the generation of the electricity. This was

done through the legislative enactment named Electricity Act, 1991. Till

this time only the electricity generation sector was privatized but through

the Electricity Act of 1998 corporatization and privatization of the

distribution sector was also encouraged. Act of 1998 established the

Central Electricity Regularity Commission (CERC) and also encouraged

states to establish State Electricity Regularity Commission (SERCs) and

unbundled State Electricity Boards. Almost all the states sooner or later

constituted CERCs and unbundled State Boards. These Commissions

were empowered with setting tariffs at levels that would enable cost

recovery. State boards were replaced by state owned companies. Thus,

the electricity sector fully corporatized. Electricity Act of 2003 going one

step ahead fully privatized the Electricity power sector. It allowed trading

and transmission of the electricity across the states which lead to model

of multiple buyers and multiple sellers with fully competitive markets.

The Act of 2003 provides for this by mandating open access not only in 11transmission, but also in distribution.

11"Policy of Power Ministry | Government of India, Ministry of Power, Electricity Act - 2003,” Available at: http://powermin.nic.in/hi/content (Last visited on Sept.12, 2016).

159

The corporate distributors notoriously do not keep proper nancial 12records. As a result, information about the nancial health of

distributors is not always consistent across, or even within, data sources.

The data shows that annual losses for distributors (after accounting for

government payments to cover subsidized tariffs) growing at 29%for the

four years leading to 2011, when they reached $8.5 billion. Ironically the

data shows after having too much loss distributors report their net worth

in positive. Last data shows that the annual loss in 2011 reached up to

45000 crores (source: Planning Commission (Power & Energy Division)

of Govt. of India, 2011).

4. Corporatization of the water

Water being the subject matter of the sates according to the Entry 17 of th

the State list of VII Schedule read with article 245 governed by the state.

Union can only interfere in the matters of the Regulation and

development of inter State rivers and river valleys. But Ministry of Water

Resources, which has been renamed recently as Ministry of Water

Resources, River Development and Ganga Rejuvenation, was given the

function of the overall planning, policy formulation, coordination and 13

guidance in the water resources sector. This ministry framed policies

and guidelines for management of water resources in country. For the rst

time, policies were framed under in 1987. Again that policy was updated

in 2002. The step towards corporatization has been taken by National

Water Policy of 2012. This policy made a step towards corporatization

and privatization of water. It has been mentioned in the policy that water 14

may be treated as an economic good. This water policy made on some

12"Harvard Kennedy School - The How’s and Whys of Protecting Consumer Financial M a r k e t s , ” A v a i l a b l e a t : h t t p s : / / w w w. h k s . h a r v a r d . e d u / n e w s -events/news/articles/madrian-working-paper-consumer-nancial-markets. (Last visited on Sept.12, 2016). 13"Ministry of Water Resources, River Development and Ganga Rejuvenation, Government of India,” Available at: http://wrmin.nic.in/forms/list.aspx?lid=23(Last visited on Sept.12, 2016).14“Background Note for Consultation Meeting with Policy Makers on Review of National Water Policy -Ministry of Water Resources,” Available at : http://wrmin.nic.in/writereaddata/NationalWaterPolicy/background_note_NWP2002717577543.pdf. (Last visited on Sept.12, 2016).



lines as suggested by Jhon Briscoe and R.P.S. Malik in their report called

‘India’s Water Economy: Bracing for a Turbulent Future’, World Bank

Paper, where they argued for privatization of the water distribution in

India. The above mentioned report which shows that how privatization of

water will lead to better efcient water resource management. The

privatization of water in services by the private sector and other non-

govt. supplier was supposed to increase in volume and there were six

desired actors which were projected (1) public provision of services (2)

services by the private sector and non-govt. supplier (3) informal

provisions of services (4) public provisions of public goods (5) Enabling

environment functions not performed and (6) A functioning enabling

environment. As above six categories were designated for privatization

of water and its subsidiary function to be achieved.

This national water policy was highly criticized on various issues. There

was an article in ‘The Hindu’ by Gargi Parasi which criticized this policy 15

on following grounds:

1. National Water Policy that calls for privatization of water-delivery

services and suggests that water be priced so as to “fully recover”

the costs of operation and administration of water-resources

projects.

2. The policy suggests that Government withdrawal from its role as a

service provider in the water sector. Instead, it says, communities

and the private sector should be encouraged to play this role. The

proposals could mean sharp rises in the cost of water for both rural

and urban users — an outcome the policy suggests will help curtail

misuse of a precious but scarce resource.

3. Policy calls for the abolition of all forms of water subsidies to the

agricultural and domestic sectors, but says “subsidies and

incentives” should be provided to private industry for recycling and

reusing treated efuents. It also proposes that subsidy to

15Gargiparasi, “Water Policy Draft Favor’s Privatization of Services - The Hindu,” Available at: http://www.thehindu.com/news/national/article2820794.ece. (Last visited on Sept.15, 2016).

161

agricultural electricity users be curtailed, saying it leads to a

“wasteful use of both electricity and water.”

This policy was taken under the deliberation of the National Water Board. 16The Central Water Commission comes under the National Water Board.

5. Contract farming

Contract farming is a system of cultivation and supply of agricultural

goods that is based on forward contracts between producers/suppliers

and buyers. The essence of such an arrangement is the commitment of the

cultivator to provide a certain quantity of a crop to a committed buyer

(typically a large company). The contract usually requires the farmer to

plant a specic crop on his or her land and to harvest and deliver to the

contractor a certain amount of produce, on the basis of anticipated yield

and contracted acreage. This could be at a pre-agreed price but need may 17

not always be so.

The Government of India’s National Agriculture Policy envisages that

“private sector participation will be promoted through contract farming

and land leasing arrangements to allow accelerated technology transfer,

capital inow and assured market for crop production, especially of 18oilseeds, cotton and horticultural crops”

Indian Government through various policies giving encouragement to

the contract farming. Several State governments, in Andhra Pradesh,

Gujarat, Karnataka, Punjab and Tamil Nadu, are actively promoting

contract farming, changing laws to enable and support it, and providing

companies interested in it with a variety of incentives, including lifting of

land ceilings, subsidies and tax rebates. Other State governments,

including in West Bengal, are under pressure to change their policy

16 Supra note 1417"Jayati Ghosh, Unregulated Contract Farming, Combined with the State Actors’ Tendency to Renege on Their Responsibilities, Can Aggravate the Agrarian Crisis.,”, Available at: http://www.frontline.in/cover-story/recipe-for-crisis/article4894780.ece. (Last visited on Sept.12, 2016).18C. P. Chandrasekhar and Jayati Ghosh, “The Hindu Business Line: Is Corporate Farming Really the Solution for Indian Agriculture?,” Available at: http://www.thehindubusinessline.com/ (Last visited on Sept.12, 2016).



19towards contract farming. NABRD took many initiatives to support the

contract farming. It made all contract farming arrangements (within and

outside AEZs) eligible for availing special renance package provided

by it. Renance support extended for contract farming within AEZs and

outside to various nancing agencies during 2004-05 and 2005-06 was to

the tune of Rs.774 crore and Rs.268 crore respectively.

India is supporting the contract farming whereas in the many parts of the

world this practice showed its evil effect. The policies of the government

to allowing contract farming and provide nancial assistance to the

companies to adopt it widely criticized in India. It is said by eminent

economist Utsa Patnaik that Corporatization of agriculture will make 20

farmers debt slaves. Jayati Ghosh, Professor of Economics at JNU, 21

named corporate farming as ‘a recipe for crisis’.

6. Corporate farming

Corporate farming refers to direct ownership or leasing in of farmland by

business organizations in order to produce for their captive processing

requirements or for the open market. When it is done for captive

purposes, it is referred to as captive farming as well, though most of the

time, the two terms are interchangeably used. In India, was corporate

farming also adopted through National Agriculture Policy of Ministry of

Agriculture and Cooperation. Corporates are not allowed to purchase the

land for the purely for agriculture production but through various ways

Indian states are allowing Corporate to enter into farming. Many state

(provincial) governments in India have attempted liberalization of land 22

laws, especially land ceiling laws. The states of Gujarat, Madhya

Pradesh, Karnataka, and Maharashtra have recently allowed agribusiness

rms to buy and operate large land holdings for R&D, and export-

19 Supra note 18.20"Free Trade in Agriculture: A Bad Idea Whose Time Is Done by Sophia Murphy | Monthly Review,” Available at: http://monthlyreview.org/2009/07/01/free-trade-in-agriculture-a-bad-idea-whose-time-is-done/. (Last visited on Sept.10, 2016).21Supra note 18.22Sukhpal Singh, “Corporate Farming in India: Is It Must for Agricultural Development?”, Available at: http://www.iimahd.ernet.in/publications/data/2006-11-06_SSingh.pdf. (Last visited on Sept.18, 2016).

163

oriented production purposes. And, even states like Punjab are planning

to raise the ceiling on holdings in order to encourage large-scale farming

for making farming a viable proposition in the state. The farmer

organizations and political parties representing larger farmers in Punjab

are also lobbying for the removal or relaxation of the Ceiling on Land

Holdings Act in Punjab. Some of the corporate agencies in the state are

asking for longer term lease (20-30 years) of farmers’ land for corporate

farming. The states of Maharashtra and Gujarat have also enacted laws to

allow corporate farming on government wastelands by providing large

tracts of these lands (upto 2000 acres each) to agribusiness companies on

a long term (20 year) lease. The Chhattisgarh State Government is also

making available about 20 lakh hectares of land for jatropha (biofuel)

cultivation. Under the scheme, an individual can lease up to 200 hectares

of land at a price of Rs 100 per hectare, per year for the rst ve years. For

subsequent years, these rates could be increased. The State Government

has already formulated an action plan including the setting up of the

Chhattisgarh Bio-Fuel Development Authority, identifying

Government-owned waste or fallow land as well as constituting task

forces in various districts (The Hindu Business Line, Sept. 2, 2005).

Earlier, the government of Andhra Pradesh had attempted corporate

farming under a project in Kuppam in Chittor district during 1997-2002

where the purpose was to test the feasibility of large scale farming

through contract farming on lands leased by agribusiness company (BHC

Agro India Private Limited - an Israeli consultancy rm).7500 acres of

farm land which has mango occupying 450 acres that makes it the largest

mango orchard in Asia. The farm was originally set up as an

environmental protection measure near its renery. Now, it is being seen

as a protable venture in itself. The company has invested Rs. 10 crore on

the farm during the last 3-4 years and plans to have such farms in other

states like A.P., Maharashtra and Karnataka. The projects are expected to

take seven years for breakeven and give 30% return after that. More

recently, it has been allotted 625 acres of government owned panchayat

and common land for its Rs. 5000 crore agribusiness project in the state of



Punjab out of which 300 acres are prime agricultural land. Some of this

land (150 acres) is on a 30-year long lease and the rest is bought by the

company. It is undertaking export oriented corporate farming (50%) also

planning to sell the farm produce in domestic market through Reliance

Retail outlets.

III Effects of corporatization of agriculture

Knel Allen, Political writer having Ph.D. in Political Science from

Harvard, beautifully explains the inhumanity of corporatization structure

while writing that the, “Human beings, whom we only seem to be talking

about when we say something is “privatized,” have complex moralities

and emotions with which we can empathize. No one, however, can

empathize with a corporation, which is not a human being (even if it is

legally treated as a “person”), cannot have emotions, and has only a very

simple ethic calculated to maximize prot. The simplicity of that ethic

makes corporations into shallow and unreliable tools, and sometimes

treacherous masters, of representative democracy. Our language should

reect what we are actually doing when we turn our government over to 23

them.”

Historical experience shows that corporatization gives good output but it

should not be ignored that what it cost while giving good output. Many

times what it cost to give output is more than what is output itself. Under

this part, ‘Effect of Corporatization’, project will try to explore what

corporatization of agriculture cost to the Indian countryside. This part

will also look how corporatization effected the agriculture production.

Does it really increase the agriculture production with the sustainability?

This part also examines its effect on the food prices and food availability.

Effect on Cultivators

In 1991, at the beginning of the privatization era of Indian economy,

numbers of full time cultivators in India were 111.2 Million which

reduced to 103.5 million in 2001 and according to the recent census of 23Kell Alllen, “Say ‘Corporatization,’ Not ‘Privatization,”, Available at: http://www.hufngtonpost.in/entry/say-corporatization-not-p_b_922892.(Last visited on Sept.12, 2016).

165

2011 India only left with the 95.8 million cultivators. According to these

gures there are 15 million less cultivators in 2011 than they were in

1991. That means if we calculate per year more than 7 lakh farmers are 24

quitting farming. That means Over 2,000 fewer farmers every day.

There may be other reasons for reduced numbers like migration,

population control but such huge number cannot be justied by such

reasons.

Again justication for reduced numbers of farmers like migration and

such others fails to prove when data shows the report of the applied

manpower research (IAMR), a part of the Planning Commission states

that the employment in total and in non-agricultural sectors has not been

growing. When there are no jobs in the non-agriculture sectors where

these farmers are going? Answer of this question lies in the data regarding

agriculture laborious which is increasing with higher rate.

Corporatization of farming increased the input cost of the farming.

Various research results state that input cost is increasing at higher rate

than the market price rate of agriculture product in India. S.S. Kalamkar

in his book shows how price of cultivation of principal crops increased in 25Maharashtra. Again the study, conducted by Development Research

group (DRG), part of Reserve Bank of India found rise in the cost of

cultivation particularly in the last three years. It has been noted by the

study that market prices have hovered at a level below the Minimum

Support Price (MSP). The MSP has not been sufcient even to cover the

cost of cultivation which has witnessed a sharp escalation in recent year.

It has been also noted by the study that one of the reasons for the increase

in input cost was deregulation of the prices of fertilizers. Whereas, as it

has been mentioned earlier fertilizer companies in India are making huge

prots and have performed very well in the past few years.

In Maharashtra, BT cotton increased input cost of the cultivation. BT

24Supra note 8.25S.S. Kalamkar, “Agriculture Growth and Productivity in Maharashtra-Trends and Determination” (Allied Publishers Ltd., New Delhi, 2011).



cotton required more fertilizers as well as more water which meant more 26input cost. In Vidharbha region of Maharashtra, which is infamous for

farmer suicides, many farmers got a debt onto themselves because of the

high input cost of BT cotton. After a while, most of the farmers switched

from the cultivation of BT cotton to soya bean. In Amravati division

alone, area under cotton cultivation has almost halved, from 15 lakh 27hectares to 8.15 lakh hectares. When one farmer asked about the switch

from BT cotton to soya, he replied that, “cotton is not protable even if

the government gives Rs.10, 000 as minimum support price, because the

production cost of BT cotton is very high. With soybean, one can be sure

of recovering at least production cost.”

In the Vidharbha region, many farmers have committed suicide because 28

of debt. More specically in the Indian context it was the company of

the year 2009 of the Forbes and world’s fth ranked Indian seed industry.

The worst and unfortunate effect of corporatization of agriculture can be

seen in the form of farmer suicide in last two decades. In the decade from

1991-92, Indian farm households in debt went up from 26 per cent to 48.6

per cent. The regions seeing high numbers of suicides are also regions

where peasant indebtedness is very high. Over 80 per cent of Andhra’s 29

farm households, for instance, are in debt. According to Data of NCRB

2, 96,438 farmers have committed suicide from 1995 to 2014 and still

26Amruta Byatnal, “Study Questions Sustainability of Bt Cotton in Water-Starved Vidarbha - The Hindu,” Available at: http://www.thehindu.com/news/national/other-s t a t e s / v i d a r b h a - f a r m e r s - a b a n d o n - c o s t l y - c o t t o n - f o r - e a s y -soya/article5142804.ece%20,%20http://www.thehindu.com/news/national/study-questions-sustainability-of-bt-cotton-in-waterstarved-vidarbha/article3563411.ece. (Last visited on Sept.10, 2016).27Pavan Dahat, “Vidarbha Farmers Abandon Costly Cotton for Easy Soya - The Hindu,” available at: http://www.thehindu.com/news/national/other-states/vidarbha-farmers-abandon-costly-cotton-for-easy-soya/article5142804.ece. (Last visited on Sept.10, 2016).28Tom Post, “The Best Places to Launch a Startup in 2014,” Available at: http://www.forbes.com/sites/tompost/2014/03/13/the-best-places-to-launch-a-startup-in-2014/#70509bca359c. (Last visited on Sept.12, 2016).2 9 "P. Sa ina th , Ways o f See ing , ” Ava i lab l e a t : h t t p : / /www. ind ia -seminar.com/2009/595/595_p_sainath.htm. (Last visited Sept.8, 2016).30"P Sainath: How States Fudge the Data on Declining Farmer Suicides - Rediff.com India News,” Available at: http://www.rediff.com/news/column/p-sainath-how-states-fudge-the-data-on-farmer-suicides/20140801.htm.(Last visited on Sept.8, 2016).

167

counting. Suicide rates among Indian farmers were at a chilling 47 per

cent higher than they were for the rest of the population in 2011. In some

of the state’s worst hit by the agrarian crisis, they were well over 100 per

cent higher. In Maharashtra, farmers were killing themselves at a rate that

was 162 per cent higher than that for any other Indians excluding farmers.

A farmer in this state is two-and-a-half times more likely to commit

suicide than anyone else in the country, other than farmers,’ says P 30Sainath.

Effect on agricultural produce

Economic Survey, 2013-2014 highlights the point that India has had a

record production of food grains and oil seeds this year but it has been

also mentioned that in the case of most of the major crops, higher

production in 2013-14 achieved by expending acreage, rather than 31

productivity.

The share of agriculture and allied (hereinafter referred as agric) sector in

gross domestic product (GDP) declined to 15.2 per cent during the

Eleventh Plan and further to 13.9 per cent in 2013-14 (provisional 32estimates—PE). It is good that India’s economy getting diversied and

we are well doing with service sector and in such case it is common that

your agriculture sector go down but what worrying thing is that

international comparisons reveal the average yield in India is generally 3330% to 50% of the highest average yield in the world.

Effect on food price

The daily net per capita availability of food grain in India sank from 510

grams in 1991 to 422 in 2005.India has emerged as the capital of hunger,

scoring worse than Sub-Saharan Africa in the Global Hunger Index with

one million children dying of malnutrition every year, and as the capital

30"P Sainath: How States Fudge the Data on Declining Farmer Suicides - Rediff.com India News,” Available at: http://www.rediff.com/news/column/p-sainath-how-states-fudge-the-data-on-farmer-suicides/20140801.htm.(Last visited on Sept.8, 2016).31 Economic Survey India 2013-14.32 Ibid.33 Ashwani Mahajan and Gaurav Dutt, “Indian Economy” (S. Chand Publishers, New Delhi).



of diabetes, with the number of diabetic patients in India having more

than doubledfrom 19 million in 1995 to 40.9 million in 2007, and is

projected to increase further to 69.9 million by 2025. The policy review

laid out that India’s food problem is one of lack of entitlements, not of

lack of food. The fact that as a country India is losing sovereignty over its

food systems translates in livelihood insecurity: if food is no longer a

right but a commodity, it becomes functional to purchasing power, not a

matter of entitlements. This process leaves the country hungry even when 34

warehouses overow with grains and food rots in go-downs.

Mr. P. Sainath, Ramon Magsaysay Award winner, explains the effect of

corporatization of agriculture in food prices in a very nice way in his

speech “There’s big buck in misery. And agriculture is going to be the

great provider of both, big bucks and misery. Remember the food price

crisis last year when the West touted the idea that it was because Indians

and Chinese were eating a hell of a lot more? How were the large

corporations in that sphere doing? As the Wall Street Journal noted ‘at a

time when much of the world is facing food riots, Agriculture is dealing

with a different sort of challenge: huge prots. The grain processing giant

Archer Daniels-Midland, for instance, saw a 42 per cent rise in its scal

third quarter prots, including a seven-fold increase in net income in its

unit that stores, transports and trades grains such as wheat and corn, as

well as soybeans. Seed and herbicide giant Monsanto and fertilizer-

maker Mosaic all reported similar windfall prots in their latest 35

quarter’s.

Advantages of corporatization of agriculture

1. The farmer always has ownership of the land.

2. The agri-business is able to run a business without outright purchase

of the land. Rent rather than buy. Quicker return on investments.

34Vandana Shiva, Press Statement: ‘Creating Food Insecurity: An Analysis into the Structural and Policy Factors Increasing Food Insecurity in India,’ Available at: http://www.navdanya.org/news/105-press-statement-creating-food-insecurity (Last visited on Sept.10, 2016).35Supra note 31.

169

3. The farmer receives a steady monthly income hence not having to

run a business which he is not trained to do.

4. The agri-business is able to get better prices for the produce due to

their distribution network/alliances.

5. The farmer receives better training from the agri-business corporate

and hence continually advances his skills

6. The agri-business is better able to respond to market demands for

food and other cash crops making it a more efcient open free 36

market.

Disadvantages of corporatization of agriculture

1. squeeze on farmers’ incomes, and the threat to the viability of

cultivation, which has come about because of rising input costs and

falling output prices

2. negative impacts on the environment and public health

3. the problem of water and land pollution

4. Politicizing Agriculture

IV Law and policy in India relating to agricultural labour

1. Article 23 of the Constitution prohibits forced Labour.

2. There is no uniform central law to protect and regulate the working

and living conditions of agricultural labour. There are certain laws,

which are applicable to industrial and agricultural labour alike.

These are the:

Wasteland (Claims) Act, 1863

Indian Forest Act, 1927

Workmen’s Compensation Act, 1923

Industrial Disputes Act, 1947

Employers State Insurance Act, 1948

36"A Model for Corporatization of Agriculture in India – The Right’s Rights and Why the Right Is Right!,” Available at: https://rightstateofmind.wordpress.com/2010/10/11/a-model-for-corporatization-of-agriculture-in-india/(Last visited on Sept.16, 2016).



Minimum Wages Act, 1948

Employers Provident Fund and Miscellaneous Provisions Act,1952

Bonded Labour System (Abolition) Act 1976

Interstate Migrant Workmen (Regulation of Employment and

Conditions of Service) Act,1979 and

Dangerous Machine (Regulation) Act, 1983.

Policies have been formulated in various Five-Year Plans for improving

the condition of agricultural labourers, for example, by providing them

residential facilities, by stipulation for cottage industries, community

development programmes etc. During the Sixth Five-Year Plan, the

Integrated Rural Development Programme (IRDP) was launched as a

self-employment Programme. This Programme included the training of

rural youth for self-employment and the development of women and

children in rural areas. In 1989, the Jawahar RozgarYojna was merged

with ongoing programmes like National Rural Employment Programme

(NREP), Rural Landless Employment Guarantee Programme (RLEGP),

thereby, uniting all programmes. The main thrust of the Jawahar Rozgar

Yojna is to create gainful employment for the unemployed and under

employed rural labourers and marginal farmers living below the poverty

line among the state laws providing for agricultural labourers, the Kerala

Agricultural Workers Act, 1974, is considered to be most comprehensive.

Section 2(f) of the Act denes an agricultural worker as a Person, who, in

consideration of the wages payable to him by a landowner, works or does

any other agricultural operation in relation to the agricultural land of such

landowner, the agricultural worker has been given the following nature of

security under the Act. Under Section 7 (1) of the Act it has been made

mandatory for the landowner not to employ any agricultural worker other

than the agricultural worker who has worked on the same land during the

previous agricultural season, provided that where there are permanent

workers of the landowner, such worker shall be given preference over

other agricultural workers. If any agricultural worker has worked on the

land of a land owner during three consecutive agricultural seasons, prior

171

to the previous agricultural season, he not is denied employment merely

on the ground that he has not worked during the previous agricultural

season provided his absence during that season was for reasons beyond

his control. If the agricultural worker is not available or the number of

such agricultural workers available is less than the number required by

the land owner, the land owner shall be free to employ other agricultural

workers. However, the landowner shall not be under an obligation to

employ any agricultural worker:

(a) Who does not offer himself for employment; or

(b) Who is more than 65 years of age in case of male or 60 years of age

in case of female worker.

(c) Who is incapacitated and is unable to do work; and

(d) Who has intentionally caused damage to crops belonging to the

landowner or caused any other loss to the landowner.

The Act provides that the government shall form a scheme and establish a

fund known as Agricultural Workers “Provident Fund”. The fund shall be

administered by a Board. Under Section 9 of the Act the landowner shall

pay contribution to the fund at the rate of ve percent of the wages paid by

him to each agricultural worker and each worker shall also pay

contribution to the fund of an amount equal to the amount of contribution

payable by the landowner. The Act xes maximum of eight hours and six

hours of work in a day for adult and adolescent workers respectively.

Wages for the harvest have to be paid at the threshing oor on which the

threshing takes place and no portion of the produce can be removed from

the threshing oor without payment of the prescribed wages to the

agricultural worker concerned. The Act provides for a Conciliation

Ofcer for the settlement of disputes. If no settlement can be reached

between parties the Conciliation Ofcer refers the dispute to the

Collector who may in turn refer it to the Agricultural Tribunal. The Kerala

Agricultural Workers Act, 1974, confers certain benets to the

agricultural workers, gives security of employment and payment of

wages higher than those xed under the Minimum Wages Act in



deserving cases, regulation of working hours, constitution of an

Agricultural Worker Welfare Fund and settlement of disputes on the lines

of Industrial Disputes Act.

V Conclusion

37“Food is a source of wealth but Food production is a source of misery”.

This statement of Rabindranath Tagore seems very true in today’s context

of India. One of the reasons for this misery of farmers is corporatization

of agriculture. Corporatization of agriculture is busting the countryside

of India. After analysing the effect of corporatization of agriculture, it can

be said that corporations involved in agribusiness are controlling the

agriculture activities in the country to the very great extent. They are

indirectly making use of land and farmers to making prots and on the

other side farmers are becoming poorer and poorer day by day.

Raman Magsaysay award winner and one of the world’s greatest experts

on famine and hunger as Noble laureate Amarty Sen says about him, P.

Sainath nicely says that “Nothing has now remained in the hands of

farmers including the decision on choosing the seeds, fertilizers, water,

cost of electricity, input cost and market value, whereas the power of

decision making has been left in the hands of a few big corporate houses

in India and abroad.

Corporatization is not the dangerous thing but the monopoly of

corporations is the worst thing for any democratic country. As this project

shows that every level of agriculture process from seeds to selling and

distribution of the agriculture products are becoming subject of the

control of few Multinational countries. The propaganda to protect these

corporations is also growing with the same speed as there power is

growing. Alex Carey, writer of book titled ‘Taking the Risk out of

Democracy: Corporate Propaganda versus Freedom and Liberty’ said ththat there are three historical development in the 20 century: Growth of

democracy, growth of corporations and growth of the propaganda to

protect the corporations which lame the growth of democracy. It is very

37 Nobel Laureate Rabindranath Tagore

173

true in the context of agriculture sector in India, as west already had bad

experience of corporatization of agriculture in India there is propaganda

growing that it is very good idea.

There is an urgent need review of our polices on agriculture sector.

Parliamentarian should take up this issue seriously as it directly affect the

more than 53% of the population of India. Again small farmers should be

encouraged to take food crops rather than cash crops as its makes self

sufcient to them. Again government should put money in research on

input cost cutting methods in the agriculture. Technology should be use in

cutting the input cost of agriculture especially in case of India where most

of the farmers having small holding of land. Input cost cutting Model like

IFD (Integrated farm development model) which also called as LESA

(Low External Input Sustainable Agriculture) developed by Myrada

Krishi Vigyan Kendra at Gobichettipalayam, Tamil Nadu should be

encouraged and implemented throughout the country. This model is

identied by the UNICEF as an innovative method and UNICEF also

planning for implementation of this model throughout the country.

Again adoption of new technology should be made after proper scrutiny

of the technology. Because agriculture is totally a different sector it is not

like other sector like if there is failure in the technology of motor vehicle

and if it’s leading to the more accident on the roads than it can be banned

and production can be stopped but it is not the case with the agriculture.



*Research Scholar, Indian Law Institute, New Delhi and Assistant Professor of Law, Amity Law School, Amity University, Noida.1328 U.S. 331 (1946).

THE TREND OF MEDIA TRIAL IN INDIA: ITS CONTOURS

AND JUXTAPOSITION WITH THE NORMS OF

JOURNALISTIC ETHICS AND SELF-REGULATION

*Vaishali Arora

Abstract1FrankfurterJ in Pennekamp v. Florida said:The judiciary cannot function properly if what

the press does is reasonably calculated to disturb the judicial judgment in its duty and

capacity to act solely on the basis of what is before the court.Thomas Sowell dismisses the

conventional notion advocating that, “when your case is weak, shout louder” and instead,

announces a thought that evidently communicates the colossal power media commands in a

democratic polity in the contemporary regime. He appositely remarks, “when your case is

weak, take it to the media, instead of to the courts”. The emergence of this often-debated

phenomenon of “media-trial” in India may be conspicuously traced back to the high-prole

case of murder of model Jessica Lal, raising certain perturbed issues questioning the abuse of

power by the dominant groups and the inherent gaps within the judicial system. Thereafter,

trial by the media became a customary fashion in the country to purportedly achieve justice

through a body, characterized by self-assumption of powers in this regard, derived in the

garb of its role as the “watchdog”, permitting it to suspect the governance realm. Whilst the

momentousness of this tool cannot be disputed in awakening and unifying the apathetic

masses for a cause and consequently, affording them a platform to stage their grievances and

voice their discontent against the state’s misdemeanours; at the other end of the spectrum, its

unsolicited indulgence into the arena of administration of justice, constitutionally reserved

for the judiciary, and its ensuing impact on the stipulations of a free trial, has surfaced grim

doubts on the illusionary conceptions of journalistic ethics and self-regulation in India. In

the light of these issues, this article primarily conceptualize media trials, extracted as a

corollary of the freedom of press. It would delineate the periphery of legitimacy of such

intrusions vide constructing an analysis of the varied judgments pertaining to this theme.

Lastly, it endeavours to deliberate upon the feasibility of the abstract ideal of journalistic

ethics and yardstick of self-regulation in modulating the cynicism circumscribing such

trials.

I Introduction

The right to freedom of speech and expression is a sine qua non of a

liberalized democratic society. It is vital for unravelling and accessing the

other guarantees and is therefore positioned at the pinnacle in the

175

hierarchy of rights. Warranting the freedom to speak and express is

indispensable for the attainment of a four-fold purpose namely,

attainment of self-fullment by an individual, discovery of truth,

strengthening the decision-making capacity and facilitating a balance 2

between stability and social change. Owing to its worthiness, the right to

freedom of speech and expression is thus, accorded the nomenclature of

being “the mother of all liberties” and thereby cherished as the rst

condition of liberty.

Expression relies upon thought and ensuing opinion, conceived by virtue

of procured information. This necessitates the presence of an

information-provider, responsible for circulating information imperative

for the facilitationof public participation in the political decision-making

process. The stipulated task is accomplished by the “media”, a phrase

circumscribing every genre of communication channel through which

information can be meted out to the public at large.

Conventionally, this role was performed by the pressnevertheless with

rapid technological progression; the silhouette of the media industry has

radically expanded to embrace television, radio, motion pictures and, the

boundless world of the internet. Accordingly, the comprehensive

expression “media” may be bracketed into, the “print media,” “electronic

media” and, the relatively novel marvel of “social media”.

Media has been assigned a crucial function in any forward-looking

contemporary regime. Besides discharging its prima-facie chore of being

an information-provider, it is theparamount generator of public opinion,

vigilant guardian of people’s rights and watchdog of the state

functionaries.

As a necessary corollary of the afore-deliberations, it may be resolved

that to enjoin the right to freedom of speech and expression in its true

spirit, it becomes inevitable to read within its domainthe freedom of

media. Corroborating this stance, the Delhi High Court in Indraprastha

2S. Sivakumar, Press Law and Journalists: Watchdog to Guide-dog (Universal Law Publishing, First Edition, 2015).

The Trend of Media Trial in India: Its Contours and Juxtaposition With the Norms of Journalistic Ethics and Self-regulation


3People and Another v. Union of India, has rightly remarked that, “the

democratic credentials of a State are often measured with reference to the

degree of independence enjoyed by the media.” It is for this rationale that

media freedom has been bestowed with explicit or implicit fortication in

most global Constitutions. Accordingly, in the Indian milieu, article 19

(1) (a) of the Constitution pledging the right to freedom of speech and

expression to the citizenry, encompasses within its realm the liberty of the 4media industry.

Notwithstanding its vigour, it cannot be contested that the modern-day

media exerts gigantic powers. It possesses the potential to make and

tarnish reputations and institutions, overturn power equations and cause

revolutions. Cognisant of its competences and prominence in a polity

amalgamated with the persistent quest for unprecedented prots, the

media, especially the press and news broadcasting channels, often abuse

its powers by stooping to irresponsible journalism.

Amongst the plethora of menaces plaguing the media, “media trials”

have become an emerging trend contaminating the content broadcasted

and the resultant public opinion framed. Without a doubt, whilst a trial by

the media is palpably in public interest and if employed diligently, may be

a benison for the society, its blemishes must be intercepted. However,

prior to embarking upon the aspect of regulating such trials, it is exigent

to primarily decipher the meaning of a “media trial” and appraise its

worthiness and concomitant perils.

II Comprehending the expression “media trial”

Open public debates on issues of national signicance characterize a free

and fair democracy and are indispensable for its advancement. Such

3 thJudgement pronounced on 9 April, 2013 Available on:http://lobis.nic.in/ddir/dhc/PNJ/judgement/09-04-2013/PNJ09042013CW12002011.pdf (last visited on 1st October, 2016).4Freedom of Press has been construed as an implied fundamental right by an assortment of judicial decisions for instance, Romesh Thappar v. State of Madras, AIR 1950 SC 124; Brij Bhushan v. State of Delhi, AIR 1950 SC 129; Express Newspapers (P) Ltd. v. Union of India, AIR 1958 SC 578; Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305; Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106, amongst a plethora of others.

177

deliberations can alone be facilitated by an information-provider,

necessitating further the prevalence of a liberalized media fraternity,

engaged in disseminating truthful information. The credibility media

would command in a polity is directly proportional to the nature of

reporting it indulges in. Thus, objectivity in reporting is an obvious

expectation of the populace from the fourth estate.

The media is thus, not ethically permitted to transgress the vires of

neutrality and transparency in reporting, to make room for its own

prejudices and as a corollary, adversely mould the public opinion to

impose its own judgment in a matter yet to be investigated or sub-judice

before the judiciary. Resorting to such modus operandiin the wake of

creating unwarranted sensationalism to triumph the battle of high TRPs

and ensuing prots, thereby trespassing the domain of the Courts, in

abeyance of any cogent evidence, shall tantamount to a “trial by the

media” wherein the media acquires the stature of being a “public court”.

The Hon’ble Supreme Court of India in R.K. Anand v. Registrar, Delhi 5High Court, has endeavoured to describe a “media trial” as “The impact

of television and newspaper coverage on a person’s reputation by

creating a widespread perception of guilt regardless of any verdict in a

court of law.” It has been further remarked that, “during high publicity

court cases, the media are often accused of provoking an atmosphere of

public hysteria akin to a lynch mob which not only makes a fair trial

nearly impossible but means that, regardless of the result of the trial, in

public perception the accused is already held guilty and would not be able

to live the rest of their life without intense public scrutiny.”

Thus, the phenomenon of “media trial” entails an ostensible clash of

fundamental rights namely; the freedom guaranteed to the media under

article 19 (1) (a) competing with Article 21 of the Constitution of India,

encompassing within its realm the right to privacy, dignity and fair trial. It

also correspondingly ignores certain vital legal principles of

‘presumption of innocence until proven guilty,’ ‘guilt beyond reasonable

5(2009) 8 SCC 106.



doubt’ and; ‘audi alteram partemor the right to be heard’.

Regardless of the afore-articulation, it is pertinent to mention herein the

constructive role of the media in initiating a public trial. Considering a

country like ours, branded by a wide array of systemic aws, there are

innite instances awaiting justice. Power here is concentrated amongst

the rich and inuential consequent to which, thevulnerable common-man

is often confronted with the blind eyes and deaf ears of the State and its

agents. This is where the media intrudes as a saviour of people’s rights. It

provides them a grievance redressal platform to raise their voice against

injusticeand henceforth restores their lost faith in the traditional state

organs.

In the Indian milieu, the idea of a media trial was instituted in its full-

edged form by the bewildering judgement of the trial court in Jessica 6

Lal murder case. A mass movement sprung triggering revolutionary

changes. Thereafter, media trials were undertaken in public interest in an

assortment of famed cases like the Priyadarshini Mattoo rape and murder 7 8 9case, Nitish Katara murder case, Ruchika Girhotra suicide case, the

Delhi Nirbhaya gang-rape case, amongst a plethora of others.These have

been classic instances demonstrating how media investigation, if done in

an apposite and bona-de manner can exceptionally contribute to serve

the interests of justice.

Nonetheless, conducting a media trial has become a vogue in India.

Whilst it is crucial for the maintenance of a system of checks and

balances, at the other end of the spectrum is the enduring blatant abuse of

6Discussed in-depth in the subsequent segment of “Media Trials in India: The Judicial Approach”.7Santosh Kumar Singh v. State Through CBI; [2010] 13 (ADDL.) S.C.R. 901Available at:

thhttp://supremecourtondia.nic.in/scr/2010_v%2013_piv.pdf (last visited on 11 October, 2016).8Vikas Yadav v. State of U.P., Available at:http://supremecourtondia.nic.in/FileServer/2016-10-03_1475495470.pdf (last

thvisited on 11 October, 2016).9S.P.S. Rathore v. C.B.I., Available at:http://supremecourtondia.nic.in/FileServer/2016-09-23_1474629326.pdf(last visited

thon 11 October, 2016).

179

this weapon by the media demanding immediate attention. Accordingly,

it becomes indispensable at this juncture to apprehend the judicial

attitude vis-à-vis qualifying such trials.

III Media trials in India: The judicial approach

Commencing this segment of the paper with the remarks of the Supreme

Court in Santosh Kumar Satishbhushan Bariyar v. State of 10

Maharashtra that, “if media trial is a possibility, sentencing by media

cannot be ruled out,” it is pertinent to examine in this light, the judicial

outlook vis-à-vis the permissible limits of trial by the media in India.

Citing primarily in this context the judgement of the Supreme Court in 11Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), pertaining

to the ‘infamous’ incidence of murder of model Jessica Lal on the th thintervening night of 29 and 30 April, 1999 at an elite party in the capital

city of Delhi, for her refusal to serve liquor to the accused, son of an

eminent Congress party leader, subsequent to the closure of the bar,

eliciting a nation-wide crusade against the undemonstrative system

gratifying the inuential.

The trial, which prima facie seemed to be an ‘open and shut case’,

astonishingly concluded with the acquittal of the accused in 2006 owing

to key witnesses turning hostile. It was then that the case gained

momentum within the media fraternity and raised immense public outcry

against the apparent miscarriage of justice. Consequent to the detested

judgment, a sting operation was conducted to unravel the truth behind

abrupt hostility of witnesses, thereby mounting pressure on the

government and judiciary to reconsider the same. The inexplicable

pronouncement witnessed the common-man of the country pitching

against the powerful and formally established the vigour of “media trial”

as a justice-seeking platform.

10Available at: http://judis.nic.in/supremecourt/imgs1.aspx?lename=34632(last thvisited on 11 October, 2016).

11Available at:thhttp://judis.nic.in/supremecourt/imgs1.aspx?lename=36237 (last visited on 11

October, 2016).



Responding to an appeal led in the instant case before it, the apex court

whilst admiring the signicance of the print and electronic media,

advised those engaged in the eld “to ensure that trial by media does not

hamper fair investigation by the investigating agency and more

importantly does not prejudice the right of defence of the accused in any

manner whatsoever”. It further hinted towards a grave peril of prejudice

if the media is warranted unperturbed liberty. It was therefore suggested

that publishing photographs or statements of the accused or suspect,

unequivocally holding him guilty, prior to the identication parade or

order of the court, as the case may be, require regulation. The court,

however, concluded in the present case that the media reports agreeably

did perplex the mind of the public and affect the accused yet it was only in

a limited fashion since they did not have a prejudicial impact upon the

minds of the masses.

The Delhi High Court in this regard is accredited for delivering a historic

judgment germane to the aspect of conducting media trials by deploying 12

the modus operandi of sting operations. The court took a suo motu

action on the basis of a newspaper report pertaining to a sting operation

done by ‘Live India’, a private television news channel, relating to the

purported involvement of Uma Khurana, a school teacher employed with

the Delhi government, in forcing a girl student into prostitution. It was

successively suspected that the operation was deceptive however,

immense loss of public repute was until then borne by the victim. The

court thus deliberated upon the question of “how the recurrence of such

incident could be stopped and minimised so that an innocent person

cannot be victimised.”

The court in the instant case applied the ratio of the Supreme Court of the 13United States judgement in Keith Jacobson v. United States. Analysing

the same, the high court observed that, “Giving inducement to a person to

12See Court on its Own Motion v. State; 146 (2008) DLT 429.Available on:http://delhicourts.nic.in/Dec07/Court%20on%20its%20own%20motion%20Vs.%20S

thtate.pdf (last visited on 12 October, 2016).13 thReported in 503 US 540; decided on 6 April, 1992.

181

commit an offence, which he is otherwise not likely and inclined to

commit, so as to make the same part of the sting operation is deplorable

and must be deprecated by all concerned including the media.” In such

circumstances, the individual involved may also assert guilt of the person

offering such inducement and consequently, impute him as a party to the

crime the former is accused of.

It nevertheless claried its stance by articulating that sting operations

may sometimes be indispensable in public interest and as a tool for justice

if they demonstrate acts and facts as they have truly and in reality

happened but, “a hidden camera cannot be allowed to depict something

which is not true, correct and is not happening but has happened because

of inducement by entrapping a person.” Therefore, in the opinion of the

high court, per se the media is well within its right domain when it seeks

to resort to tools of investigative journalism to bring the citizenry “face-

to-face with the ugly underbelly of the society” nonetheless, it cannot

transgress its authority to encroach upon the rights of privacy and dignity

possessed by an individual.

In the nality, certain suggestions were proposed by the Court to mitigate

the menace of stings. First and foremost, it submitted that a self-

regulatory code of conduct should be drafted by the responsible and

senior television journalists and editors, having key involvement in the

production and airing of programmes through the channel of electronic

media. It stated in this regard that, “we believe and trust that all TV

channels/media shall take steps and prohibit its reporters from producing

or airing any programme which is based on entrapment and which are

fabricated, intrusive and sensitive.” Additionally, it was recommended

that the Press Council of India may take the requisite initiative in this

arena. Furthermore, the court insisted that the Ministry of Information

and Broadcasting must craft suitable guidelines regulating the airing of

sting operations by the news broadcasting media.

Dealing with the legitimacy of sting operations in the country and

addressing the issue of nature and extent of the right of the media to deal



with a pending trial, the Supreme Court in R.K. Anand v. Registrar, Delhi 14High Court opined that, “it would be a sad day for the court to employ

the media for setting its own house in order; and media too would

certainly not relish the role of being the snoopers for the court.” The

Court further elucidated that coercing the media to procure the consent

and permission of the court prior to publishing or broadcasting a report 15concerning a pending trial, would be a contravention of the right to

freedom bestowed upon the media by article 19 (1) (a) and thus

tantamount to pre-censorship of reporting court proceedings, a

phenomenon forbidden by the stated constitutional provision.

However, in furtherance of this observation, it was declared that the

afore-nding of the court does not imply that the media is permitted to

publish any kind of report or conduct a sting pertaining to a sub-judice

matter in any manner it desires. Moreover, the legal bounds within which

a report or comment on a sub-judice matter can be made is well dened

and an act infringing these parameters would invite consequences. Also,

the court contrasted normal reporting by the media with the scheme of

sting operations and resolved that the latter are “incalculably more risky

and dangerous” owing to their inherent attribute of being essentially

deceptive and therefore, it was concluded that any fallacy therein would

invite “legal restrictions with far greater stringency and more severe

punishment”.

Besides, it was enunciated that every sting operation cannot be classied

as a ‘trial by the media’. To elaborate, if there is nothing in the programme

14Supra note 6; the case was incidental to the ongoing criminal trial in the infamous BMW hit-and-run accident involving Sanjeev Nanda. It evoked considerable media attention and public interest owing to the involvement of an illustrious family coupled with the fallout of the prosecution witnesses. In this backdrop, NDTV, a popular television news channel, conducted a sting operation bringing to light the negotiations between the Special Public Prosecutor IU Khan and RK Anand, the senior defense counsel, for the sell out of the prime witness in favour of the defense, in lieu of a high price. The apex court was thus confronted with the task of ascertaining the role of NDTV in carrying out the sting operation and telecasting the programme based on the sting materials in regard to a criminal trial that was going on before the court.15One of the recommendations forwarded by the amicus curie in the preceding case of Court on its Own Motion v. State, explicitly refuted by the apex Court in the instant case.

183

indicative of the guilt or innocence of the accused and it simplicitor is a

reection of the systemic aws, a sting cannot be bracketed as a media

trial. Accordingly, in the instant case, the sting programme telecasted by

NDTV was not graded as a media trial on the premise that barring few

stray remarks and comments by the anchors or the interviewees, the

content of the programme merely exhibited some unscrupulous people

trying to undermine the BMW trial whilst portraying the worrisome state

of the criminal administration of justice in the country.

Concerning the crucial question if such stings can be accused of being in

contempt of the Court by interfering or tending to interfere with, or

obstructing or tending to obstruct the due course of a fair trial, the apex

court settled that, “stings and telecast of sting programmes served

important public cause” thus, until “what was shown was proved to be

substantially true and accurate” and the operation “is in larger public

interest”.

At this juncture arises the crucial question whether the judiciary is

empowered to pass a prior restraint order impeding a publication or

broadcast of a news story, as a probable remedy to ameliorate the

fallibilities of a trial by the media. The foremost judgement probing this

aspect was delivered by the apex Court in Reliance Petrochemicals 16Limited v. Proprietors of Indian Express. The court asserted that the

freedom of press is not absolute but qualied by the reasonable

restrictions enlisted under article 19 (2). It cannot be claimed divorcing

other constitutionally guaranteed rights and accordingly, must be

harmonizedwith the rudiments of a fair trial. Taking cues from the

doctrine of “clear and present danger” propounded by Holmes J in this

regard, the court resolved that it has inherent powers to issue interim

16AIR 1989 SC 190; The petitioner, Reliance Petrochemicals Limited had offered for public subscription secured convertible debentures, after duly procuring the sanction of the Controller of Capital Issues, as lawfully mandated. The public issue was however, challenged in few High Courts. In the meanwhile, an article denouncing the issue as an unreliable venture appeared in the Indian Express provoking the instant case. Henceforth,the petitioners launched contempt proceedings against the respondents for allegedly interfering with the administration of justice by publishing an article commenting on a sub-judice matter, thereby prejudicially impacting its adjudication.



orders restraining a publication if in its observation; there exists a “real

and imminent danger” that the continuance of the publication would

result in interference with the administration of justice.The test

formulated thus advocatedthat any preventive injunction against the

press must be “based on reasonable grounds for keeping the 17administration of justice unimpaired”.

Similarly, dealing with the facet of the court’s inherent power to conduct

in-camera proceedings and prohibit publication thereof or evidence

recorded therein by the media, the apex Court in Naresh Shridhar 18Mirajkar v. State of Maharashtra claried that “open justice” is though

indisputablythe cornerstone of our judicial system and instils faith in the

legal system, it is not absolute and subject toimposition of restrictions by

the court in its inherent jurisdiction if administration of justice so

demands.

Addressing the same issue lately in Sahara India Real Estate 19Corporation Limited v. Securities and Exchange Board of India, the

Supreme Court postulatedthe “doctrine of Postponement of

Publications” and enunciated certain cardinal principles governing the

passing of a prior restraint order against a publication, permissible in

some exceptional cases. The court settled thus:

Anyone, whether an accused or an aggrieved person, who genuinely

apprehends on the basis of the content of the publication and its effect, an

infringement of his/ her rights under Article 21 to a fair trial and all that it

17It is noteworthy here to apprehend the status quoin America with regard to restraint orders on publications. Ordinarily, in the United States, any encroachment with the liberty of the media to access, report and comment upon ongoing trials is per se unlawful. Accordingly, prior restraint orders are completely prohibited. Therefore, in circumstances wherein, a reckless piece of journalism begets prejudice to the proceedings, there exist no sanctions against the party responsible for the wrong-doing owing to the inuence of the First Amendment absolutely shielding the press. Nevertheless, the American Courts have evolved procedural safeguards known as “neutralizing devices”, aimed at counterbalancing the effect of prejudicial publicity for instance, change of venue, ordering re-trial, reversal of conviction on appeal. Besides, certain sparse exceptions have been recognized.18AIR 1967 SC 1.19(2012) 10 SCC 603.

185

comprehends, would be entitled to approach an appropriate writ court

and seek an order of postponement of the offending publication/

broadcast or postponement of reporting of certain phases of the trial

(including identity of the victim or the witness or the complainant).

In such circumstance, in an endeavour to balance the right to a free and

fair trial along with the media freedom enshrined under article 19 (1) (a),

the court may exercise its discretion to grant such preventive relief, as is

vital for the proper administration of justice. However, whilst providing

such remedy, the court must be mindful of the principles of necessity and

proportionality, further bearing in mind that an order of postponement

should be for short duration and employed alonein cases involving real

and substantial risk of prejudice to the fairness of trial. A neutralizing

device (or balancing test) of such nature would not tantamount to be an

unreasonable restriction and fall within the constitutional framework.

Yet another noteworthy pronouncement in this arena has been delivered

by the Delhi High Court vide an order in Swatanter Kumar v. The Indian 20Express Limited wherein the plaintiff, a retired Supreme Court Judge,

accused of sexual misconduct against an intern was allegedly defamed by

certain unveried and inauthentic media reports adversely instituting his

guilt despite a pending enquiry into the allegation. Relying upon the

pronouncement of the Supreme Court in Sahara India, the high court

agreed that prima facie, the content disseminated by the print and

electronic media in the instant case created a trial by media kind of

situation generating sensation amongst the masses by accentuating upon

mere allegations. Thus, there arises a need to postpone the same or similar

nature of publications. Such order by the Court may include the directive

of non-disclosure of identity of the victim or witness of complaint.

It may thus be inferred from the above assessed judicial outlook that the

judiciary in India “in toto” endorses a favourable attitude towards the

media freedom. It has strived to harmonize media freedom with the

20Available at:http://lobis.nic.in/ddir/dhc/MAN/judgement/16-01-2014/MAN16012014S1022014.pdf (last visited on 12th October, 2016).



specications of a fair trial and justice administration. Though the higher

judiciary is acclaimed for issuing worthy directions on a case to case

basis, there continues to existgaps due to a dearth of comprehensive

guidelines or code of conduct regulating media trials.

th 21IV The 200 Law Commission report: Free speech v. fair trial

The most rhetoric research on the pragmatic and detrimental facets of

media trials in the country has been undertaken by the Law Commission th

of India and presented in its 200 report titled “Trial by Media: Free

Speech vs. Fair Trial under Criminal Procedure (Amendments to the

Contempt of Court Act, 1971)”. Published in August 2006, the report

recommended varied breakthroughs, including modication of certain

provisions of the Contempt of Court Act, 1971, to efcaciously address

the noxious effect of sensationalized news reports instigating a media

trial, culminating in victimization of the suspect or accusedby circulation

of defamatory content against him and, administration of justice.

The Commission in chapter IX of the said report has enumerated certain

kinds of publicationsin the media which could be prejudicial to a suspect

or accused and thwart the due course of administration of justice. The

same have been urged to be forbidden. These may be summarized herein-

below to include:

i. Publications concerning the character of accused.

ii. Publication of confessions made by the accused. It would not entitle

the accused justice since regardless of the Court’s decision, he is a

deemed convict in the assessment of the society.

iii. Publications which comment or reect upon the merits of the case.

iv. Photographs of the accused where identity is likely to be an issue.

This may obstruct the procedure of identication of the accused.

v. Premature publication of evidence, including interviews with

witnesses.

21Available at: http://lawcommissionondia.nic.in/reports/rep200.pdf (last visited on 14th October, 2016).

187

vi. Publications of past criminal records. It shall publicize the belief

that it is more likely for the person so accused to have committed the

crime charged for if he has a criminal history.

vii. Comments which engender sympathy or antipathy for the accused.

viii. Publications criticizing witnesses, revealing or questioning police

activities or creating an atmosphere of prejudice in any manner

whatsoever.

The same chapter embodies certain key recommendations proposed by

the Commission concerning this aspect. Primarily, it has stressed upon

prohibition of any publication which is prejudicial to the accused, a

limitation that shall become operational from the time of arrest in

contradistinction with the ling of the chargesheet by the police.

Additionally, it had articulated that the high courts must be authorized to

direct postponement of publication or broadcast pertaining to a criminal

matter. Furthermore, it has propagated the training of journalists in

certain relevant areas of law and legal requirements/ethics, explicitly the

arena of article 19 (1) (a) and 19 (2). Likewise, it was suggested that the

study of the Constitution of India, human rights, defamation and

contempt laws, amongst others, must be inserted in the curriculum of

journalism course and alongside, special diploma or degree courses on

journalism and law may be crafted.

V Conclusion

Notwithstanding the inevitability and worthiness of investigative

journalism in bringing to light the systemic lapses by providing a suitable

platform to the citizenry to make their voices heard against the wrong-

doings of the powerful, overall making justice relatively accessible, the

overreach of the media in initiating a trial, in absolute ignorance of the

legally prescribed procedure for the same, thereby prejudicing the public

opinion and vitiating the judicial proceedings, cannot be denied.

Whilst a peaceful protest, candle-lit procession, spirited public debates,

and the like; intending towards initiating a “renaissance” in the prevalent

regime, may legitimately be resorted to in a democracy, media tactics



piloted towardscreating needless sensationalism, encroaching upon the

privacy rights of others, prejudicing a fair trial, circulating distorted and

defamatory content, is liable to be condemned. Such malpractices are

violative of the norms and canons of responsible journalism and demand

regulation.

It is pertinent to articulate herein that regulation must not be muddledwith

censorship since the latter would nullify the quintessence of the fourth

estate. Also, regulating the fraternity by virtue of a statute would

tantamount to conferring mammoth power upon the legislature to

manage the media in accordance with its own whims and fancies, a

predicament treacherous for the survival of a democratic polity. It is

hence suggested that the diverse complexities involved must be

harmonized in a fashion so as to savour the merits of investigative

journalism and mitigate its perils. The recommended key thus, is the

exercise of self-regulation by the media.

Primarily, the media must restrain itself to fair, transparent and neutral

reporting. Any adverse information disseminated having the tendency to

injure the reputation of a fellow citizen or likely to have a detrimental

effect on the fair administration of justice, should solicit judicial

intervention. Reiterating the observation of the apex court and varied

high courts in this regard, “the media even under the law is not entitled to

distort the facts for the purpose of juicy news. If they do it, they are held

responsible to suffer damages.” Henceforth, there is a dire need to x the

accountability of the journalist along with the media house, found

engaged indulging into such frivolous acts fallaciously infuriating the

masses. Alongside, every such trial must be backed by compelling

evidence.

Notwithstanding the same, the judiciary is correspondingly expected to

employ self-restraint and abstain from overstretching its inherent powers

to postpone publication or order prior-restraint. Such authority may alone

be exercised in grave circumstances without compromising upon the

liberty accorded to the media. This diligence has to be exerted by the

Judge on a case to case basis.

189

Lastly, the Law Commission of India has proposed valuable

recommendations in this regard which remain yet to be implemented and

must be considered by the regulatory and judicial authorities to frame a

comprehensive code of conduct governing media trials.

To conclude, construed in isolation, self-regulation becomes a myth and

journalistic ethics, an abstract ideal. These must be substantiated with

proper and vivid guidelines duly xing accountability and liability of the

wrong-doer. The idea is not to impose a bracket ban on a trial by the media

undermining its utility or seizing the public’s right to know but to evade

excessive publicity, respecting the rights of the suspect or accused vis-à-

vis his privacy, dignity and fair trial.The conception of akin culture can

alone abbreviate dependence on laws to regulate trials by the media.


LEXIGENTIA

PEER REVIEWERS BOARD

Mr. Anup Kumar Varshney, Joint Secretary, Legislative Department,

Ministry of Law & Justice

Prof. S. S. Jaswal, Registrar , National Law University , Shimla , HP

Dr. P. Puneeth, Associate Professor, Law and Governance,

JNU, New Delhi

Dr. Jyoti Dogra Sood, Associate Prof., Indian Law Institute,

New Delhi

Dr. Asad Malik, Jamia Millia Islamia, New Delhi

Ms. Anju Jain , Advocate , Delhi High Court

Mr. Robin Jacob, Advocate, Supreme Court of India

Mr Ravi Prakash, Advocate, Supreme Court of India

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