Thursday, December 31, 2009

NUJS Law Review Special Issue on the Naz Foundation Case

The NUJS law review has just come out with its special volume dedicated to the landmark Naz Foundation judgment that effectively decriminalised same sex activities in India. Pursuant to its tradition of being an open access journal, all the articles can be accessed freely here. I list out the articles and their authors below:


DECRIMINALISATION OF HOMOSEXUALITY AND THE CONSTITUION
Professor Mahendra P. Singh


OUT OF THE COLONIAL CLOSET, BUT STILL THINKING 'INSIDE THE BOX': REGULATING 'PERVERSION' AND THE ROLE OF TOLERANCE IN DE-RADICALISING THE RIGHTS CLAIMS OF SEXUAL SUBALTERNS
Ratna Kapur


NAVIGATING THE NOTEWORTHY AND NEBULOUS IN NAZ FOUNDATION
Vikram Raghavan


READING SWARAJ INTO ARTICLE 15: A NEW DEAL FOR ALL MINORITIES
Tarunabh Khaitan


SECTION 377 AND THE 'ORDER OF NATURE': NURTURING 'INDETERMINACY' IN THE LAW?
Shamnad Basheer, Sroyon Mukherjee & Karthy Nair


THE PUBLIC AND CONSTITUTIONAL MORALITY CONUNDRUM: A CASE-NOTE ON THE NAZ FOUNDATION JUDGMENT
Rohit Sharma


CRYSTALLISING QUEER POLITICS - THE NAZ FOUNDATION CASE AND ITS IMPLICATIONS FOR INDIA'S TRANSGENDER COMMUNITIES
Siddharth Narrain


DIVIDED LAWS IN A UNIFIED NATION: TERRITORIAL APPLICATION OF HIGH COURT DECISIONS
Jasmine Joseph


BREAKING SILENCES, CELEBRATING NEW SPACES: MAPPING ELITE RESPONSES TO THE 'INCLUSIVE' JUDGMENT
Rukmini Sen


LOGIC AND COHERENCE IN NAZ FOUNDATION: THE ARGUMENTS OF NON-DISCRIMINATION, PRIVACY, AND DIGNITY
Pritam Baruah


'RIGHT TO PRIVACY' IN NAZ FOUNDATION: A COUNTER-HETERONORMATIVE CRITIQUE
Saptarshi Mandal


JUDICIAL INTERPRETATION OF ARTICLE 21 IN THE NAZ FOUNDATION CASE: PRIVACY - A MORAL RIGHT OR A CREATURE OF AN AMORAL CONSTITUTION?
Bhargav K. Joshi & Neha Mary Koshy

Monday, December 28, 2009

Next decade's Shah Bano?

As the year ends and outlandish predictions for the coming decade begin (the big fashion event... the next big tech gizmo...), here's one this blog might be interested in: what will the biggest 'political' judgment of the next decade be? I've speculated in an opinion piece in today's The Indian Express. Where do you think the Supreme Court is headed in the next ten years?

NUJS Essay Writing Competition

NUJS, Koltata, is organizing the 1st Subrata Roy Chowdhury Memorial Essay Competition. The details of the competition are available here.

Thursday, December 24, 2009

Indian Copyright Amendments Clear Cabinet

The government issued a press release announcing that the much awaited and controversial copyright amendment bill has now cleared "cabinet", a group of senior ministers that represent the highest decision making body of the government. Since the winter session of Parliament is over and done with, the Bill is only likely to be introduced in the budget session of Parliament in February 2010.

The amendment process began around the year 2005 and the present Bill draft is one that has come about after what the government claims is a fairly elaborate consultative process. This is true in some particulars, though not quite true in others. Notably, the present version of the Bill includes substantive copyright provisions that were introduced for the first time in 2009 (pertaining to the music and film industry) and did not form part of the earlier 2005 draft that was subject to public consultations.

Unfortunately, the Bill will only be made "public", only after it has been introduced in Parliament.

Importantly, the bill provides a copyright defence to enable access to copyrighted works by the disabled, something covered on this blog . In particular, the very first proposal in a newly introduced collaborative law making platform (CLAM) revolves around what an optimal provision to enable access to the disabled might look like.

Here is the detailed government press release:

"The Union Cabinet today approved the proposal to introduce a Bill to amend the Copyright Act, 1957. The Ministry of Human Resource Development has proposed the amendments in order to gain clarity, remove operational difficulties and to address the newer issues that have emerged in the context of digital technology and the internet.

Amendments are being made to bring the Act in conformity with the World Intellectual Property Organisation (WIPO) Internet Treaties, namely WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) which have set the international standards in these spheres. The WCT deals with the protection for the authors of literary and artistic works such as writings, computer programmes, original databases, musical works, audiovisual works, works of fine art and photographs. The WPPT protects certain “related rights” which are the rights of the performers and producers of phonograms. While India has not yet signed the above two treaties it is necessary to amend domestic legislation to extend the copyright protection in the digital environment.

Amendments related to bring the Act in conformity with WCT and WPPT:

i) Through a new section in the Act, it is proposed to ensure protection to the Right holders against circumvention of effective technological measures applied for purpose of protection of his rights like breaking of passwords etc. while maintaining an appropriate balance between the interests of the right holders on the one hand and of Technology innovators, Researchers and Educational Institutions on the other.

ii) The existing Performers’ Rights are proposed to be further enhanced by introducing a new section to provide exclusive rights compatible with WPPT.

iii) “The Moral Rights of Performers” are proposed to be introduced in a new section.

iv) Amendments have been proposed to protect the interests of researchers, students and educational institutions so as to ensure that Technological Measures do not act as a barrier for further development of the technology. These amendments also address the issue of access to information in the digital context and the liability of Internet service providers.

v) The period of copyright for photographers is proposed to be enhanced to “Life plus sixty years” instead of only sixty years as at present.


Amendment to protect the Music and Film Industry and address its concerns :

i) Statutory licence for version recordings and authorship to ensure that while making a sound recording of any literary, dramatic or musical work the interest of the copyright holder is duly protected.

ii) Term of copyright for cinematograph films has been extended by making the Producers and Principal director as joint authors.

iii) A copyright term of 70 years to Principal Director which automatically extends the copyright term for the Producers for another 10 years provided he enters into an agreement with the Director;

Amendments to address the concerns of the physically challenged:

The physically challenged need access to copyright material in specialized formats, e.g. Braille text, talking text, electronic text, large print etc. for the visually challenged and sign language for the aurally challenged. Currently the cost of production of material in such formats is very high. With additional requirement of royalty payments the price of such material to the target groups would be even higher.

i) A clause is proposed to be introduced as a fair deal clause to allow the production of copies of copyright material in formats specially designed for the physically challenged.

ii) A separate compulsory licensing provision has been proposed to allow for publication of copyright works in formats other than specifically suited for the physically challenged.

Amendments for rights to authors:

i) Amendment is proposed to give independent rights to authors of literary and musical works in cinematograph films, which were hitherto denied and wrongfully exploited, by the producers and music companies.

ii) An amendment is proposed to ensure that the authors retain their right to receive royalties and the benefits enjoyed through the copyright societies.

iii) Another amendment ensures that the authors of the works, particularly songs included in the cinematograph film or sound recordings, receive royalty for the commercial exploitation of such work.

iv) It has been proposed to introduce a system of statutory licensing to ensure that the public has access to musical works over the FM Radio and Television networks and at the same time the owners of copyright works are also not subject to any disadvantages.

v) It is proposed to amend existing provisions to provide compulsory license through Copyright Board to publish or communicate to the public such work or translation where the author is dead or unknown or cannot be traced or the owner of the copyright work in such work cannot be found.

Other amendments

i) Amendments are being made for incidental changes, which are required in the context of digital technology to cover “storing of copyrights material by electronic means’.

ii) Amendments in relation to operational facilities, such as registration of Copyright Societies by providing that only authors can register and procedure for tariff schemes of copyright societies and commercial distinction between assignment and licence; and

iii) Enforcement of rights such as border measures, disposal of infringing copies and presumption of authorship under civil remedies.

Background :

In order to formulate the proposed amendments and to carry out wide-ranging consultations with all stakeholders, the Ministry of Human Resource Development had constituted a 30-member Core Group in the year 2005 under the Chairmanship of the Education Secretary with representatives of the other Ministries/Departments concerned with the subject and other key stakeholders like copyright-industry organizations, stakeholders, subject experts and Institutions of repute in related fields. The Core Group had deliberations at length in five sessions to cover all the provisions of the existing statute and made recommendations with regard to the proposed amendments. The Core Group then created a Drafting Committee to draw up the text of the proposed amendments and to fine-tune the recommendations of the Core Group."

Wednesday, December 23, 2009

DAKSH 2009 Report on Democracy and Governance in Karnataka

DAKSH, a group I am associated with released its 2009 report on Democracy and Governance in Karnataka. The summary reports and part of the full reports are available here. The final full report will also be available on the website shortly.

We believe that DAKSH is carrying out an interesting experiment that could impact accountability of governance, elected representatives and democracy at large. I would urge the LAOT readers to read the summary reports and give us your feedback on the report.

Saturday, December 19, 2009

Hear Justice Dinarakan out

This blog has closely followed the journey of Justice Dinakaran from probable elevation to possible impeachment.Regardless of his guilt or innocence, how fair has the system been to him ? In today's The Indian Express, I have written an opinion piece arguing that Justice Dinakaran has been denied the procedural right to be heard, and this denial is the result of the higher judiciary's own choice to be insulated from scrutiny. That insulation, I argue, cuts both ways.

Thursday, December 17, 2009

Event announcement: Seminar on Human Rights in India

The Alternative Law Forum, in collaboration with the School of Law of Christ University, is organising a two-day seminar on 'Human Rights in Contemporary India: Emerging Challenges.' The seminar will be held on the campus of Christ University in Bangalore on Dec 19th and 20th, 2009, and features presentations on a number of pressing issues by leading academics, public interest lawyers and NGO representatives. Details of the event, including the programme and the people to contact if you are interested in attending, are available here.

We hope to post a summary of proceedings in the near future. If any of our contributors/readers are able to attend, it would be great to have their reactions or thoughts on the presentations and discussions. Given the quality of people involved, this promises to be something to watch out for.

Wednesday, December 16, 2009

Subsidiarity and state formation

Since my previous post highlighting the role that the principle of subsidiarity can play in devolving power, there have been three excellent columns in the Indian Express dealing with precisely the same question. Bibek Debroy makes a case for small states, Karthik Muralidharan weighs up the pros and cons of smaller states, and Pratap Bhanu Mehta underscores the need to consider state 'building' alongside state creation. What is striking in all of these commentaries is that they ignore sub-nationalism as a possible basis for further state-formation. Instead, each of them analyses different aspects of democratic representation and efficiency---the twin pillars that underpin the principle of subsidiarity. The Telengana issue could well trigger the second wave of state formation in India: if this happens, subsidiarity should be a useful guide for the second states reorganisation commission. Of course, subsidiarity will also require far stronger local governments than we have at the moment--will our policy makers travel that far?

On an unrelated matter, Flavia Agnes draws attention to a recent judgment of the Supreme Court in Shabana Bano case, which will have important implications for a divorced Muslim woman's right to maintenance.

Tuesday, December 15, 2009

Frontline: content alert

*T.Jayaraman's review of Meera Nanda's book, God Market.

*My review of Anirudh Krishnan and Harini Sudersan's recent book on reservations.
*My article on how the principle of absolute liability, cornerstone of Bhopal jurisprudence, is being diluted.
*R.K.Raghavan on limits to death penalty
*Asha Sarangi on reorganisation of states, then and now.

Saturday, December 12, 2009

In news: love jihad, Telengana

1. On love jihad -

A Kerala judge has sought to legitimise the use of a dangerous concept - 'Love Jihad'. Liberals should be worried, for this is a clever reactionary assault on the basic right to choose your partner. Coming close on its heels, a recent SC decision to commute a capital sentence into life imprisonment for an 'honour-killing' to avenge an inter-caste marriage was taken for the wrong reasons. It may be time for liberals to appropriate 'love jihad', to say that there is nothing wrong with love, that it must be allowed to transcend the boundaries of caste, religion, race and sex. A nation-wide campaign against 'arranged' marriages, which reinforce casteism, sectarianism, hetero-patriarchy etc., might be a good start.

2. On Telengana - Shekhar Gupta says:

It is the peculiarity of the division in Andhra Pradesh that makes the job of a commentator so difficult. How does one describe the two sides? Both are Telugu, both have the same caste mix, same ethnicity, culture and so on. The clamour for a separate Telangana is a regional aspiration, or a case of the “inland” districts wanting their own political space in a state where the power structure is dominated by their own ethnic brethren from the richer, coastal districts, or from the eastern grain bowl between the two great rivers, Krishna and Godavari.

Indeed, what ought to be the basis of devolving power? Nick Barber's excellent paper 'The Limited Modesty of Subsidiarity' compares subsidiarity and nationalism as two distinct reasons for doing so. Simply put, subsidiarity requires that power should be exercised at the smallest unit that can exercise it efficiently. There is a presumption in favour of smaller units, with the rider of efficiency. An important implication of subsidiarity is that one size need not fit all, that different regions can have different ways of sharing power (even our federal constitution admits and accommodates idiosyncratic circumstances of certain states under the provisions in Part XXI). Barber's article is a must read for anyone interested in any form of vertical organisation of power---federalism, devolution or decentralisation of power to panchayats.

Friday, December 11, 2009

Prashant Bhushan's Affidavit in the Contempt Matter

Outlook Website has a copy of Prashant Bhushan's affidavit in the contempt matter against him in the Supreme Court. It makes interesting reading. I will not say more on it for the moment as it is still sub-judice.

PRS Launches Laws of India

PRS Legislative Services just launched a beta version of their Laws of India website. Currently, it has laws from 10 states on it and they hope to add more soon. As anyone who has tried to do state level legislative research knows the main legal search engines generally only include major state legislation (if that). This is an attempt to fill this gap at the state level.

Increasing focus has been put on making the activities of Parliament more transparent and accessible (PRS being a great example of this trend). The same efforts at the state level have been more spotty. Hopefully, this is a sign that more attention will be paid to the activities of state legislative assemblies. Certainly, getting their laws online is a vital and very welcome first step.

Tuesday, December 08, 2009

Democratizing Law Making Through Open and Collaborative Participation

I'm extremely happy to announce that after months of planning and designing, we've finally managed to execute our collaborative law-making platform, titled CLaM.

Our first proposal relates to a copyright defence for the disabled, highlighted in an earlier post by Lawrence Liang here. I also did a post over at SpicyIP on this.

This is how CLaM introduces itself on our Tikiwiki site:

"CLaM stands for Collaborative Law Making. The CLaM Initiative attempts to engineer a shift from "representative" to "direct" democracy by enhancing public participation in the framing of laws. It builds on the "collaborative" and "open" approach popularised by "open source" software and other initiatives such as Wikipedia. To this end, it seeks to build an online model of collaborative participation to help with the framing of laws/policies.

A core team would initially administer and manage this platform. Over time, it is hoped that others (any member of the public) could also run their own policy/legislative proposals on the CLaM platform. Also, the initial focus would be on intellectual property laws/policies pertinent to India, since this falls within the area of expertise of the current team administering this model. After a while, we hope to scale up the project to encompass the entire gamut of laws/policies.

The current core team proposes to identify areas in the current legal regime that require change. The proposed change is then articulated in the form of a proposal, giving as many details (including references and reading) as possible. This initial proposal is then thrown open for public participation, where any interested member of the public could either comment generally on the proposal or specifically edit it to their liking, giving reasons etc.

Our current project deals with a proposed amendment to the Indian Copyright Act intended to give visually impaired persons better access to copyrighted materials.

Amending the Copyright Act to Secure Access for the Disabled

A number of countries the world over provide for a copyright exception in favour of persons with disabilities. Unfortunately, the Indian Copyright Act, 1957 does not do so and unduly restricts the conversion of copyrighted works into formats accessible by disabled persons. An amendment proposed in 2006 to deal with this issue has serious limitations. For a more detailed overview of the concerns of the disabled community in this regard, please read our Problem statement.

An alternative amendment is therefore proposed. To view the Problem statement and Proposed Amendment, you need not be a registered user. However, in order to actively collaborate/participate in the framing of this law, we strongly encourage you to register.

Please log in (if you are an existing user), or register (if you are a new user - it's simple and free). Once you register, you can comment on, and make direct edits to the Draft Provision. The idea behind this platform is to democratize law making by enabling as many people to participate in the making of laws that are likely to impact our society."

We really hope that you will be enthused enough to participate in this adventure that leverages the power of web 2.0 to democratize the process of law making. In particular, we look forward to your comments on how we might improve this offering. No doubt, this is just a small beginning, but one, that we hope can be scaled up to yield more concrete and lasting outcomes.

Thursday, December 03, 2009

Is Article 15(4) an enforceable right?

The Supreme Court's judgment in Dr.Gulshan Prakash v. State of Haryana (Delivered on December 2 by Justices K.G.Balakrishnan-P.Sathasivam-J.M.Panchal)is sure to create a controversy of sorts because of its ruling that Articles 15(4) and 16(4) are only enabling provisions, and therefore, the State can use its discretion not to enforce them. I am not going into the facts of the case, as readers can get them from the judgment available on the Supreme Court's site. My preliminary observations are as follows:

1. It is not clear how the Court concluded that if they are enabling provisions, no rights accrued from them.

2. The Court holds that the State can use its discretion not to enforce Article 15(4). But discretion is always coupled with duty, and therefore, enforceable. In an earlier case, (Nagaraj), the Court had laid down conditions to control discretion, when the State wants to introduce reservations under A.16(4). These are backwardness, insufficiency of representation, and efficiency of administration. In this case, however, the Court left the State's discretion not to introduce reservations uncontrolled and unregulated.

3. In N.M.Thomas, the Court said Article 15(4) is not an exception, but part and parcel of Article 15(1) and, therefore, aims to fulfil substantive equality. This was upheld in Ashoka Kumar Thakur case last year. Once A.15(4) is understood as a necessary ingredient of equality, it can't be separated from Article 15(1) and seen merely as an enabling provision. Why the Court thinks an enabling provision can't be enforced is not clear.

4. Articles 16(4),15(4) and 15(5) only explicitly say what is implicit in Articles 16(1) and 15(1) read with Article 14. Therefore, to consider the former as unenforceable rights, as the Court has done, is fallacious.

5. Take horizontal reservations for disabled persons under Article 16(1). The State cannot refuse to reserve seats claiming that it is also an enabling provision. The Court appears to suggest that Article 16(1) is superior to Article 16(4), and whereas the State is bound to reserve seats under Article 16(1), the State is not so bound under Article 16(4). Such an understanding is inherently flawed.

6. The Court appears to have understood the State's duty to reserve seats as opposed to the need to maintain efficiency under Article 335. Both are not contradictory.

Wednesday, December 02, 2009

Copyright Infringement and the Recent Amendments to the IT Act

The IT Act amendments recently came into force. I have a post on SpicyIP examining the amendment to section 79 of the IT Act dealing with ISP/intermediary liability.

As per the amendment, "immunity" for intermediaries is no longer limited to offences under the IT Act, but extends to offences arising under any law in force in India. Therefore, one might argue that an ISP can now claim immunity for any breach of the Copyright Act, 1957, provided it acts as a mere intermediary and has no knowledge of the copyright violation in question.

Unfortunately, Section 81 of the IT Act stands in the way of such an interpretation. It reads thus:

"The provisions of this Act [IT Act] shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Provided that nothing contained in this Act shall restrict any person from exercising any rights conferred under the Copyright Act, 1957 or the Patents Act, 1970."

In other words, the IT Act cannot absolve an intermediary of liability, if that intermediary is otherwise found liable under the Indian Copyright Act. Secondary liability is mainly found in sections 51 (a) (ii) and 63 of the Copyright Act. If perchance an intermediary is found liable under one of these provisions or under any other provision of the Indian Copyright Act, it cannot take recourse to section 79 and nullify the "right" of a person to sue for such infringement.

Interestingly the proviso to section 81 of the IT Act only mentions "copyright" and "patent" liability. It does not include liability for other kinds of IP infringement such as trademarks, geographical indications, plant varieties etc. Therefore, in so far as these infringements are concerned, an intermediary can claim an exemption under section 79. Why this difference? Did this have anything to do with lobbying by special interests? Or was this a genuine mistake?

History of Section 79?

Rumour mills have it that the push to amend the IT Act came in the wake of the infamous Baazee case, when a "one name" Prabhakaran got after an unsuspecting Avnish Bajaj. Matters took a political turn when Condy Rice intervened. Given this political baggage, I'm surprised that eBay, Google and other intermediaries did not lobby hard enough to absolve IPR infringement as a whole.

It is pertinent to note that section 79 is liberally worded and will even exempt any ISP or intermediary from liability, provided such intermediary:

i) does not initiate the transmission
ii) select the receiver of the transmission; and
iii) select or modify the information contained in the transmission

Most online intermediaries and ISP's (such as Rediff, eBay, Google, Youtube etc) ought to qualify under the liberal exemption above. Unfortunately, its a pity that they cannot do so, when it comes to copyright and patent infringements. Of course, they could still claim that since they did not know of the infringement or had no reasonable ground for such knowledge, they fall outside the scope of secondary liability enshrined in section 51 (a) (ii) of the Copyright Act. However, section 51 (a) (ii) is limited to cases involving a communication of copyrighted works to the public. In so far as other copyrights (such as the right to reproduce etc are concerned), an ISP could still be potentially liable for cached/temporary copies created on its network.

Intermediary Liability and the "Secret" Copyright Bill


Given that the current copyright amendment bill is underway, the ISP and intermediary lobbies ought to insist that "intermediary" exemption under the IT act extend to copyright infringements as well. Particularly when such exemptions are likely to favour public interest and the enormous number of users who avail of such intermediary services. Unfortunately, like most other IP initiatives, the copyright bill is also shrouded in considerable secrecy and none of us will know what the actual provisions look like until the bill is introduced in Parliament (scheduled for this Winter session).

The government insists that it made the bill public in 2006 and called for comments. While this is no doubt true, it is only partly so. Since the 2006 draft was put up, the government has made a number of changes, including the addition of altogether new provisions, such as an equitable remuneration in favour of artists. Little wonder then that lobby groups such as the Indian Broadcasting Federation are up in the arms decrying the secrecy and lack of consultation. Clearly there is, and will continue to be, a lot of politicking around the present Bill. Whether it will finally pass and if so, the form in which it will do so remains to be seen.

Tuesday, December 01, 2009

Liberhan Report & P.V.Narasimha Rao's defence

As I was writing this article, I was intrigued by two facts, which defied easy explanation. Why do most commissions of inquiries start with a very limited tenure only to be extended many times later? Liberhan Commission's 48 extensions, and 17-year tenure may indeed surprise most of us, but to begin with, how did the Government expect it to submit the report within six months? Given the huge challenges faced by the Commission since its inception, one can be equally surprised that the Commission could at last submit its report after 17 years.

The second question is about the use of Article 356 by the Central Government. The Commission quotes at length the former Prime Minister P.V.Narasimha Rao's defence as to why he could not impose President's rule before the demolition, or use the paramilitary forces to prevent the demolition, even in the absence of the State Government's request. Ironically, the Commission agrees that President's rule ought to have been imposed prior to the demolition, but also does not disagree with Rao's defence. His reasoning that President's rule could only be imposed for remedial and not preventive purposes is persuasive. The Central Government was also constrained by the Supreme Court's refusal to appoint it as a receiver and the Court's acceptance of the U.P.Chief Minister's promise to defend the disputed structure at all costs.

Interestingly, Commission's estranged counsel, Anupam Gupta, in this interview admires Rao for his lawyer-like skills during his submissions before the Commission. He too complains that the Commission accepted Rao's defence uncritically. But it is not clear whether Anupam Gupta believes that the Rao Government could have legally imposed President's rule before the demolition.

Even if the Rao Government had imposed President's rule prior to demolition and thereby prevented it, would it have been legally sustainable? In other words, if Rao's defence is indeed correct, then there is a serious lacuna in the Constitution as it does not enable the Centre to effectively intervene, if a State Government covertly encourages violation of the Constitution, as the U.P.Government did during the Ayodhya crisis. Surprisingly, most critics of use of Article 356 are silent on this apparent serious limitation on the Centre's powers in a situation which threatens the breakdown of the Constitutional machinery.