Bonded Child Labor In India: It’s impact and Prevention

ABSTRACT

Child labor refers to the employment of children in any work that deprives children of their childhood, interferes with their ability to attend regular school, and is mentally, physically, socially, or morally dangerous and harmful. Of an estimated 215 child laborers around the globe: approximately 114 million (53%) are in Asia and the Pacific; 14 million (7%) live in Latin America; and 65 million (30%) live in sub-Saharan Africa. The global number of children in child labor has declined by one-third since 2000, from 246 million to 168 million children. More than half of them, 85 million, are in hazardous work (down from 171 million in 2000). Asia and the Pacific still have the largest numbers (almost 78 million or 9.3% of the child population), but Sub-Saharan Africa continues to be the region with the highest incidence of child labor (59 million, over 21%). There are 13 million (8.8%) of children in child labor in Latin America and the Caribbean and in the Middle East and North Africa, there are 9.2 million (8.4%). Agriculture remains by far the most important sector where child laborers can be found (98 million, or 59%), but the problems are not negligible in services (54 million) and industry (12 million) – mostly in the informal economy. Child labor among girls fell by 40% since 2000, compared to 25%for boys. Child labor in India is addressed by the Child Labor Act 1986 and the National Child Labor project. Today in India, there are more than 10.12 million children who are spending their childhood learning carpet-weaving, beedi-rolling, domestic labor, agriculture, firework and apparel manufacture, and countless other occupations instead of going to school and receiving a quality education.

I. INTRODUCTION

According to data from Census 2011, the number of child laborer’s in India is 10.1 million of which 5.6 million are boys and 4.5 million are girls. A total of 152 million children – 64 million girls and 88 million boys – are estimated to be in child labor globally, accounting for almost one in ten of all children worldwide.

Despite rates of child labor declining over the last few years, children are still being used in some severe forms of child labor such as bonded labor, child soldiers, and trafficking. Across India, child laborers can be found in a variety of industries: brick kilns, carpet weaving, garment making, domestic service, food and refreshment services (such as tea stalls), agriculture, fisheries, and mining. Children are also at risk of various other forms of exploitation including sexual exploitation and the production of child pornography, including online. Child labor and exploitation are the results of many factors, including poverty, social norms condoning them, lack of decent work opportunities for adults and adolescents, migration, and emergencies. These factors are not only the cause but also a consequence of social inequities reinforced by discrimination.      

Children belong in schools, not workplaces. Child labor deprives children of their right to go to school and reinforces intergenerational cycles of poverty. Child labor acts as a major barrier to education, affecting both attendance and performance in school.

The continuing persistence of child labor and exploitation poses a threat to national economies and has severe negative short and long-term consequences for children such as denial of education and undermining physical and mental health. Child trafficking is also linked to child labor and it always results in child abuse. Trafficked children face all forms of abuse-physical, mental, sexual and emotional. Trafficked children are subjected to prostitution, forced into marriage or illegally adopted; they provide cheap or unpaid labor, are forced to work as house servants or beggars and may be recruited into armed groups.

CONSEQUENCES OF CHILD LABOUR

The presence of a large number of child laborer’s is regarded as a serious issue in terms of economic welfare. Children who work fail to get necessary education. They do not get the opportunity to develop physically, intellectually, emotionally and psychologically. In terms of the physical condition of children, children are not ready for long monotonous work because they become exhausted more quickly than adults. This reduces their physical conditions and makes the children more vulnerable to disease. Children in hazardous working conditions are even in worse condition. A child who work, instead of going to school, will remain illiterate which limits their ability to contribute to their own well being as well as to the community they live in. Child labor has long term adverse effects for India. To keep an economy prospering, a vital criterion is to have an educated workforce equipped with relevant skills for the needs of the industries. The young laborer’s today, will be part of India’s human capital tomorrow. Child labor undoubtedly results in a trade-off with human capital accumulation. Child labor in India are employed with the majority (70%) in agriculture some in low-skilled labor-intensive sectors such as sari weaving or as domestic helpers, which require neither formal education nor training, but some in heavy industry such as coal mining. According to the International Labor Organization (ILO), there are tremendous economic benefits for developing nations by sending children to school instead of work. Without education, children do not gain the necessary skills such as English literacy and technical aptitude that will increase their productivity to enable them to secure higher-skilled jobs in future with higher wages that will lift them out of poverty.

DIAMOND INDUSTRY

In the year 1999, the International Labor Organization co-published a report with Universal Alliance of Diamond Workers, a trade union. The ILO report claimed that child labor is prevalent in the Indian diamond industry. International Confederation of Free Trade Unions (ICFTU) in a separate 1997 press release observed that child labor continued to flourish in India’s diamond industry. Not everyone agreed with these claims. The South Gujarat Diamond Workers Association, another trade union, acknowledged child labor is present but it is not systematic, is less than 1% and against local industry norms. Local diamond industry businessmen too downplayed these charges

According to the 1999 ILO paper, India annually cuts and polishes 70 percent of the world’s diamonds by weight or 40 percent by value. Additionally, India contributes 95 percent of the emeralds, 85 percent of the rubies, and 65 percent of the sapphires worldwide. India processes these diamonds and gems using traditional labor-intensive methods. About 1.5 million people are employed in the diamond industry, mostly in the unorganized sector. The industry is fragmented into small units, each employing a few workers. The industry has not scaled up, organized, and big operators absent. The ILO paper claims that this is to avoid the complex labor laws of India. The export order is split, work is subcontracted through many middlemen, and most workers do not know the name of enterprise with the export order. In this environment, claims the ILO report, exact number of child laborer’s in India’s diamond and gem industry is unknown; they estimate that child laborer’s in 1997 were between 10,000 and 20,000 out of 1.5 million total workers (about 1 in 100). The ILO report claims the causes for child labor include parents who send their children to work because they see education as expensive, education quality offering no real value, while artisan work in diamond and gem industry to be more remunerative as the child grows up. A more recent study from 2005, conducted at 663 manufacturing units at 21 different locations in India’s diamond and gem industry, claims incidence rates of child labor have dropped to 0.31%.

FIREWORKS MANUFACTURE

The town of Sivakasi in South India, known for its fireworks and matchsticks industries, has been reported to employ child labor in the production of fireworks. In 2011, Sivakasi, Tamil Nadu was home to over 9,500 firecracker factories and produced almost 100 percent of total fireworks output in India. The fireworks industry employed about 150,000 people at an average of 15 employees per factory. Most of these were in unorganized sector, with a few registered and organized companies.

In 1989, Shubh Bhardwaj reported that child labour is present in India’s fireworks industry, and safety practices poor. Child labour is common in small shed operation in the unorganized sector. Only 4 companies scaled up and were in the organized sector with over 500 employees; the larger companies did not employ children and had superior safety practices and resources. The child labour in small, unorganized sector operations suffered long working hours, low wages, unsafe conditions and tiring schedules. A more recent 2002 report by international labour organization (ILO), claimsthat child labour is significant in Tamil Nadu’s fireworks, matches or incense sticks industries. However, these children do not work in the formal economy and corporate establishments that produce for export. The child laborers in manufacturing typically toil in supply chains producing for the domestic market of fireworks, matches or incense sticks. The ILO report claims that as the demand for these products has grown, the formal economy and corporate establishments have not expanded to meet the demand, rather home-based production operations have mushroomed. This has increased the potential of child labour. Such hidden operations make research and effective action difficult, suggests ILO.

SILK MANUFACTURE

A 2003 Human Rights Watch report, claims children as young as five years old are employed and work for up to 12 hours a day and six to seven days a week in silk industry. These children, claims, are bonded labour; even though the government of India denies existence of bonded child labour, these silk industries children are easy to find in Karnataka and Tamil Nadu, claims Children are forced to dip their hands in scalding water to palpate the cocoons and are often paid less than Rs. 10 per day. In 2012, a German news investigative report claimed that in states like Karnataka, non-governmental organizations had found up to 15,000 children working in the 1,100 silk factories in 1998. In other places, thousands of bonded child laborers were present in 1995. But today, after UNICEF and NGOs got involved, child labour figure is drastically lower, with the total estimated to be fewer than a thousand child laborers. The released children were back in school, claims the report.

CARPET WEAVING

Siddartha Kara finds about 20% of carpets manufactured in India could involve child labour. He notes, “Determining the extent to which the hand-made carpet supply chain from India to the U.S.A. is tainted by slavery and child labour requires an additional exercise in supply chain tracing.” Kara’s study also finds variation in child labour practices between ethnic and religious groups. Kara and colleagues report highest level of child labour in Muslim community carpet operations, and the presence of debt bonded child laborers in Muslim villages.

DOMESTIC LABOUR

Official estimates for child labour working as domestic labour and in restaurants is more than 2,500,000 while NGOs estimate the figure to be around 20 million. The Government of India expanded the coverage of The Child Labour Prohibition and Regulation Act and banned the employment of children as domestic workers and as workers in restaurants, dhabas, hotels, spas and resorts effective from 10 October 2006.

MINING

Despite laws enacted in 1952 which prohibited employment of people under the age of 18, primitive coal mines in Meghalaya were caught employing children under the age of 18. This caught the attention of international media in 2013.

BRICK KILNS

A large number of brick kilns around Bangalore and Hosur employ bonded and child labour, under the pretext of offering high wages. In 2018, 22 bonded laborer’s including children were rescued from a brick kiln near Anekal in Bangalore and the employers were arrested by the police. The employers allegedly provided poor food and working conditions.

LEGISLATION FOR CHILD LABOUR IN INDIA:

 The first protective legislation for child labour in India was seen in 1881 in the form if Indian factories Act which had the provisions prohibiting employment of children below 7 years, limiting the working hours for children to 9 hours a day and providing 4 holidays in a month and rest hours. This was actually made by the ruling British Government to decrease the production in Indian industries through some legal restrictions. It may be submitted that the labour legislations in India including protective legislation for children have been greatly influenced with the result of various Conventions and Recommendations adopted by International Labour Organization. Besides Constitutional provisions, there are several legislative enactments which

Provide legal protection to children in various occupations :

1. The Children (Pledging of Labour) Act, 1933
2. The Employment of Children Act, 1938
3. The Minimum Wages, Act 1948 and rules made thereunder by the government
4. The Factories Act, 1948
5. The Plantations Labour Act, 1951
6. The Mines Act, 1952
7. The Merchant Shipping Act, 1958 
8. The Motor Transport Workers’ Act, 1961
9. The Apprentices Act, 1961
10. The Atomic Energy Act, 1962 
11. The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 
12. The Shops and Establishment Act in Various States, and Child Labour (Prohibition and Regulation) Act, 1986

INDIAN CONSTITUTION

Article 21 of the Constitution of India guarantees the right to life and liberty. The Indian Supreme Court has interpreted the right of liberty to include, among other things, the right of free movement, the right to eat, sleep and work when one pleases, the right to be free from inhuman and degrading treatment, the right to integrity and dignity of the person, the right to the benefits of protective labor legislation, and the right to speedy justice. The practice of bonded labor violates all of these constitutionally-mandated rights. Article 23 of the constitution prohibits the practice of debt bondage and other forms of slavery both modern and ancient:

Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.

Begar is an ancient caste-based obligation, a “form of forced labour under which a person is compelled to work without receiving any remuneration. Other similar forms of forced labour was interpreted expansively by the Supreme Court in 1982, when it ruled in the seminal ‘Asiad Workers’ Case that both unpaid and paid labour were prohibited by Article 23, so long as the element of force or compulsion was present in the worker’s ongoing services to the employer. Examples of force include overt physical compulsion and compulsion under threat of legal sanction (as for example in the case of an allegedly unpaid debt), as well as more subtle forms of compulsion, including “compulsion arising from hunger and poverty, want and destitution”. “Given the dire economic straits of most Indians, this definition could bring hundreds of millions of people within its scope. The Supreme Court went on; however, to provide a helpful rule for determining exactly what situations constitute forced labor. “Where a person provides labour or service to another for remuneration which is less than minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the word `forced labour’. All labor rewarded with less than the minimum wage, then, constitutes forced labor and violates the Constitution of India”.In another landmark case, this one brought on behalf of a group of bonded quarry workers in the early 1980s, the Supreme Court ruled that “It is the plainest requirement of Articles 21 and 23 of the Constitution that bonded laborers must be identified and released and on release, they must be suitably rehabilitated. Any failure of action on the part of the State Governments in implementing the provisions of the Bonded Labour System (Abolition) Act would be the clearest violation of Article 21 and Article 23 of the Constitution.”Article 24 prohibits the employment of children in factories, mines, and other hazardous occupations. Together, Articles 23 and 24 are placed under the heading “Right against Exploitation,” one of India’s constitutionally-proclaimed fundamental rights.

Article 39 requires the state to “direct its policy toward securing”:

(e) That the health and strength of workers and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.

(f) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.”

Child Labour (Prohibition and Regulation) Act (1986) was the culmination of efforts and ideas that emerged from the deliberations and recommendations of various committees on child labour. Significant among them were the National Commission on Labour (1966-1969), the Gurupadaswamy Committee on Child Labour (1979) and the Sanat Mehta Committee (1984). The Act aims to prohibit the entry of children into hazardous occupations and to regulate the services of children in non-hazardous occupations. In particular it is aimed at (i) the banning of the employment of children, i.e. those who have not completed their 14th year, in 18 specified occupations and 65 processes; (ii) laying down a procedure to make additions to the schedule of banned occupations or processes; (iii) regulating the working conditions of children in occupations where they are not prohibited from working; (iv) laying down penalties for employment of children in violation of the provisions of this Act and other Acts which forbid the employment of children; (v)bringing uniformity in the definition of the child in related laws. The Child Labour (Prohibition and Regulation Amendment Bill), 2012 was introduced in Rajya Sabha on 4 December, 2012 further to amend the Child Labour (Prohibition and Regulation) Act, 1986. The amendment also seeks a blanket ban on employing children below 18 years in hazardous industries like mining. The Bill is referred to Standing Committee on Labour and Employment.

APPLICABLE INTERNATIONAL LAW

The practice of bonded child labor violates the following international human rights conventions; India is a party to all of them, and as such is legally bound to comply with their terms.

1. Convention on the Suppression of Slave Trade and Slavery, 1926

This convention requires signatories to “prevent and suppress the slave trade” and “to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.” It also obligates parties to “take all necessary measures to prevent compulsory or forced labor from developing into conditions analogous to slavery.”

• Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956

The supplementary convention on slavery offers further clarification of prohibited practices and refers specifically to debt bondage and child servitude as institutions similar to slavery. It requires States Parties to “take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition of debt bondage and any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.” The convention defines debt bondage as follows: Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined.

• Forced Labour Convention, 1930

The International Labour Organization (ILO) Forced Labour Convention requires signatories to “suppress the use of forced or compulsory labour in all its forms in the shortest period possible.” In 1957, the ILO explicitly incorporated debt bondage and serfdom within its definition of forced labor.

• International Covenant on Civil and Political Rights (ICCPR), 1966

Article 8 of the ICCPR prohibits slavery and the slave trade in all their forms, servitude, and forced or compulsory labor. Article 24 entitles all children to “the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”

• International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966

Article 7 of the ICESCR provides that States Parties shall “recognize the right of everyone to the enjoyment of just and favorable conditions of work.” Article 10 requires Parties to protect “children and young persons… from economic and social exploitation.”

• Convention on the Rights of the Child, 1989

The following three provisions mandate protections that are particularly relevant for the bonded child laborer:

Article 32: “States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or… be harmful to the child’s health or physical, mental, spiritual, moral or social development.” States are directed to implement these protections through appropriate legislative, administrative, social and educational measures. In particular, they are to:

(a) Provide for a minimum age or minimum wages for admissions to employment;

(b) Provide for appropriate regulation of the hours and conditions of employment; and

(c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of this article.

Article 35: “States Parties shall take all appropriate measures to prevent the abduction, the sale of or traffic in children for any purpose or in any form. “A significant portion of the bonded child laborers of India are trafficked from one state to another and some are sold outright.

Article 36: “States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.”

CONCLUSION

The government has accordingly been taking proactive steps to tackle this problem through strict enforcement of legislative provisions along with simultaneous rehabilitative measures. State Governments, which are the appropriate implementing authorities, have been conducting regular inspections and raids to detect cases of violations. Since poverty is the root cause of this problem, and enforcement alone cannot help solve it, Government has been laying a lot of emphasis on the rehabilitation of these children and on improving the economic conditions of their families.

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*Prashant Khari, 4th Year ( BBA LLB), University School of Law and Legal Studies, GGSIPU.

*Ketan Yadav, 4th Year ( BBA LLB), University School of Law and Legal Studies, GGSIPU.

*Rohan Yadav, 4th Year ( BBA LLB), University School of Law and Legal Studies, GGSIPU.

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India’s Attempt to Provide Social Security to Gig and Platform workers: A Revolutionary Labor Reform Amidst the COVID-19 Crisis?

According to reports, the Indian gig economy which had been estimated to touch the $455 billion mark by the year 2024 has the potential to grow at double the rate now after the COVID-19 outbreak.[1] Moreover, the Indian market has become one of the largest markets for flexi staffing as per the Economic Survey 2020-21  It is evident that the pandemic has had a huge impact on our jobs and business not just in India but throughout the world and has pushed us to explore the freelance work sphere. The World Employment and Social Outlook 2021 report published by the International Labour Organization also states that gig workers have now become a vital part of the contemporary life by allowing us to “arrange a ride, order food and access a host of other services online.”[2] Interestingly, the Indian government has been attempting to bring in its labour reforms right on cue as the three new labour codes namely Code on Occupational Safety, Health and Working Conditions, Industrial Relations Code and Social Security Code, which seek to consolidate some forty odd labour laws, await their final implementation. Apart from facilitating ease of doing business, easier compliance mechanism, adjudication of employment and labour disputes etc., these reforms seek to provide social security to gig and platform workers in India for the first time. This article critically examines the impact of these reforms on gig and platform workers in India. In general terms, gig workers are individuals who work temporary jobs as independent contractors or freelancers whereas platform workers are individuals who use online platforms like Ola, Uber, Zomato etc. to provide their services to other organizations or individuals. However, both gig and platform workers have been legally recognized the first time in India and their definitions have already caused a storm of criticism. The Code on Social Security, which is replacing nine laws related to social security, defines a gig worker as “a person who performs work or participates in a work arrangement and earns from such activities outside of traditional employer-employee relationships” and a platform worker is “a person engaged in or undertaking platform work”.[3] Although both kinds have been defined as the sub-categories of the term ‘unorganized workers’ but the definitions can easily lead to confusion and overlapping. An example that is being widely used to explain this is of an application-based taxi driver. An Ola taxi driver comes under both the categories as he or she works outside of a traditional employer-employee relationship and undertakes online platform i.e. work through the Ola app as well. It is pertinent to understand that gig and platform work, despite their popularity, are fairly new concepts in India and hence, the workers as well as the employers require carefully drafted legal definitions and subsequent provisions to adopt the new laws. Even the ILO Director-General Guy Ryder has also pointed out that “We need a serious dialogue about what the appropriate way to classify platform workers is, and how to make sure that they get the necessary protections at work.”[4] Such legal fallacies and government’s ignorance towards the difference between the two terms seem more unfortunate at a time when the NITI Aayog CEO himself has acknowledged the contribution of the online platforms to the job market in India. He has been quoted saying that the application-based cab companies like Ola and Uber alone have created over a million jobs since 2014 in India.[5] Further, the Code does not clarify as to which employer-employee relationship counts as a “traditional employer-employee” relationship which again leaves room for different interpretations and misuse of the law. In India, the unorganized sector has been reported to have suffered a wage loss of ₹81,122 crore as opposed to the organized sector’s wage loss of ₹5,326 crore during the lockdown period between March and May 2020 itself.[6] The Finance Minister Nirmala Sitharaman had mentioned in her Budget 2021 speech that Employees State Insurance Corporation and minimum wages rules will apply to all types of workers. However, the three new laws do not contain any such provision for these workers as there has been no change pertaining to minimum wages and other occupational terms and conditions in the gig and online platform sector. Here, the government has again missed the golden opportunity to address the primary problem of the unorganized sector in India which contributes to over 50% of the country’s GDP and it would be fundamentally wrong to assume that the gig and platform sector can thrive on social security benefits alone without having any guarantee of minimum wages, basic labor rights and employment guidelines. Another important aspect that is not getting enough attention of the labor reforms’ critics is the impact of these labor reforms on employers of these gig and platform workers. For now, an employee and employer are responsible for contributing to the provident fund created for the social security of the employees in the organized sector under The Employees’ Provident Fund and Miscellaneous Provisions Act, 1952.[7] However, the new Social Security Code only provides that the workers’ social security is the shared responsibility of the government, employer and the worker but does not define the quantum of their respective contribution. Hence, this model is unlikely to sustain or thrive well in the gig sector as it is a high possibility that the new Social Security Code may lead to pay cuts in the workers’ salaries as they would have no other option but to contribute to their social security benefits fund out of their own salary.  It is also silent on the calculation of social security benefits for workers who work under multiple platforms or employers. On this point, Rituparna Chakraborty, co-founder and executive vice president of a staffing firm in India, has suggested that the government should make social security for these workers optional.[8] On a positive note, the new law empowers the government to frame social security schemes related to the life and disability cover, accident insurance, health and maternity benefits etc. for the workers in the unorganized sector and their family members who are not covered under any labour law in India. It also makes it mandatory for the gig workers and platform workers to get registered on an online platform in order to avail the benefits under the Social Security Code as the government aims to create a digital database of these workers. This can prove to be a brilliant move to have an official government record about the largely undocumented status of the unorganized workers particularly in the gig and platform sector and their contribution in the Indian economy in order to bring in the required reforms in the future. Conclusively, these labour reforms can be described as a half-hearted attempt at providing the much-needed protection to the gig and platform workers in India owing to various impediments and contradictions in their intent and content on paper.

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• Snehal Walia, B.A. LL.B, 3rd Year Student, Rajiv Gandhi National University of Law, Punjab .

[1] Dr Niranjan Hiranandani, OPINION: Growth of gig economy signals tectonic shift in the workforce, The Week, https://www.theweek.in/news/biz-tech/2020/12/10/opinion-growth-of-gig-economy-signals-tectonic-shift-in-the-workforce.html.

[2] World Employment and Social Outlook 2021, International Labour Organization, https://www.ilo.org/global/research/global-reports/weso/2021/lang–en/index.html.

[3] The Code on Social Security,2020, No. 121, Bills of Parliament, 2020, (India).

[4] Natalie Huet, More protection needed for gig workers says ILO, Euro News, https://www.euronews.com/2021/02/23/more-protection-needed-for-gig-economy-workers-says-ilo.

[5] Scroll Staff, Watch: NITI Aayog officials in knots trying to explain report on skyrocketing unemployment, Scroll.in, https://scroll.in/video/911672/watch-niti-aayog-officials-in-knots-trying-to-explain-report-on-skyrocketing-unemployment.

[6] Radeshyam Jadhav, Covid-19 lockdowns: How much did the unorganized sector lose?, The Hindu, https://www.thehindubusinessline.com/economy/covid-19-lockdowns-how-much-did-the-unorganised-sector-lose/article33491316.ece.

[7] The Employees’ Provident Fund and Miscellaneous Provisions Act, 1952, No. 19, Acts of Parliament, 1952.

[8] Nishant Sharma, Gig Workers May End Up Paying For Their Own Social Security, Bloomberg Quint, https://www.bloombergquint.com/business/gig-workers-may-end-up-paying-for-their-own-social-security.

JLMPG VOLUME 2 ISSUE 1

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TRADITIONAL CULTURAL EXPRESSIONS-INTELLECTUAL PROPERTY LAWS & PROTECTION OF FOLKLORE IN INDIA

Recently in the backdrop of the India- China skirmishes and the dwindling relation between the two nations, the call for atamnirbhar Bharat or Self-Reliant India has gained prominence. There are too many creations from our remote areas that have not gained prominence, and this is the time that, along with other industrial developments, we should also bring out some of these traditional arts at the forefront. One such recent example is the bamboo bottle from Tripura, which has been a great hit in a short span of time.[i] However, there are thousands such traditional expressions which need attention as well as proper support. India, as a country, is widely known for its diversity, culture, and traditions. The cultural legacy and traditions of indigenous people hold a very important place. It forms the basis of the cultural heritage of our nation, and we, as a community, are largely possessive about it. However, there are a lot of things related to these people, which does not fall under the legal ambit and because of this in the number of cases, the indigenous people are the ones who ultimately suffer. The protection of Traditional cultural expressions is one such thing. In the past few years, international bodies such as WIPO and UNESCO have laid down some rules in this regard. These rules are followed by various countries as well.[ii] However, in the Indian context, the law of protecting Traditional Cultural Expressions doesn’t seem to be a well-established and uniform one. The latest national IP policy, mentions “Traditional cultural expressions,” thrice in its objective but does not throw much light on it.[iii] In this article, we will be analysing how Traditional cultural expressions can be protected under IP laws in India.

Introduction

World Intellectual Property organisation describes Traditional Cultural Expressions[hereinafter mentioned as TCEs], that is also known as expressions of folklore, which may include music, dance, art, designs, names, signs, and symbols along with performances, ceremonies, architectural and many other cultural and artistic expressions.[iv] Basically, they are any expression where traditional knowledge is being expressed in any form. This is seen as an inevitable part of the identity and heritage of a particular indigenous community and is generally passed on from one generation to another.  The TCE at many times are geography specific. Yoga, for instance, is a legacy of our country, and historical evidence of existence can be traced back to pre-Vedic civilisation.[v]

Why is it important to protect TCEs?

Instant global communication has gained essentiality in today’s world. However, technological development acts as a two-edged sword with respect to TCEs. Either it assimilates themselves in the society or takes them away from their rightful titleholders.[vi] For indigenous communities, protection of cultural expressions underlines socio-economic justice and capabilities to preserve, protect, and reinforce their own cultural heritage.[vii] More to the point, it has a huge potential to provide a fair economic return for their collective intelligence. It can give economic stability to a large part of indigenous people residing in the backward areas of the nation. Currently, TCEs, which ought to be a collective property of the indigenous communities, are being misappropriated by the large commercial entities, be it through the traditional art techniques, the fusion of traditional music with digital beats, giving their indigenous names to handicrafts majorly produced by non-traditional means.[viii] Amidst these exploitation, due credit is being snatched away from their real owner. A concrete and strong law to regulate and protect TCEs will not only improve the living standard of the indigenous people but will also add on to the overall economic resources of the nation.

How IPR can play a role in protecting TCEs

The main reason IPR emerged as a field of law around the world was because there arose a need to exploit the economic benefit over your creation or over your production. If you have invested your time and intellect over something, then you should definitely reap some substantial benefit out of it. This logic appears to falter in cases of TCEs. A large portion of such cultural expressions are unregulated, and the potential of their economic benefits are being undermined.

IPR laws and TCE

India currently does not have a concrete rule to protect the TCEs. The TCEs under the current IPR regime being protected individually, depending upon the subject matter it falls upon. The branches of IPR under which the TCEs are dealt with are Copyright, Trademark, Geographical Indications, Protection of Plant Variety and Farmers Right Act, and Biodiversity act. We will be briefly looking at the specific areas of TCEs which these laws look after.

Copyright:

It is a different branch of IPR which aims to protect the original work of musical, literary, artistic, dramatic nature, including cinematographic films and sound recordings.[ix] On several occasions, it has been witnessed that TCEs are being reproduced and documented in a different manner by people other than that of indigenous communities and what is even more important that they have been protected under copyright law as “original work”.[x] The major problem of protecting TCEs under copyright laws is that the right granted under the concerned act is not permanent, and it exhausted after the lapse of a certain period of time.[xi]

Trademark:

Usually, it marks the potential of distinguishing the goods and services of one person from another. Collective marks along with certificate marks can be used to protect the indigenous goods such as paintings, handicrafts, etc. which are having cultural worth.[xii]

Geographical Indications:

Under geographical indication (hereinafter mentioned as “GIs”), only those products are provided protection that have a specific geographical origin and possess some traditional artistic heritage that is due to that place of origin.[xiii] For example, Darjeeling tea is high quality tea grown in the hilly region of the Darjeeling district of West Bengal.[xiv] The protection has no time restriction, and rights are collective in nature, which means it does not concentrate on an individual or two. It resides with the whole community itself.[xv] However, it fails to protect the TCEs under current provisions of law. Traditional knowledge of the same is already available in the public domain and subject to exploitation by the third party. GIs are only effective in protecting the product, which is a result of traditional know-how. However, it lacks vision when it comes to folk dance, martial arts, etc. which are pure performance.[xvi]

The Protection of Plant variety and Farmers Right Act:

Article 27.3(b) of the TRIPS agreement talks about the protection of plant variety. Article 27(3) (b) calls for the member states to establish a sui generis regime for protecting plant varieties.[xvii] In India, the Protection of Plant variety and Farmers Right Act, which was enacted in the year 2001, is used to protect new plant varieties. Further, in the Doha declaration in the year 2001, Article 27 was extended to include traditional knowledge as well[xviii]. However, there is still a lot of confusion with this, and we need a smoother way in order to bring in the aspect of traditional knowledge in the Plant variety jurisprudence.

Biodiversity Act:

The biodiversity Act 2002 talks about “benefit claimers,” which means the conservers of biological resources and their by-products along with being the creators and holders of knowledge and information relating to the use of such biological resources, innovations, and practices associated with such use and application.[xix] In the case of Divya Pharmacy vs. Union of India[xx], The Uttarakhand High court said that all Indian companies which are using biological resources are liable to share a part of their revenue under the principle of fair and equitable benefit sharing[xxi] with the local communities who possess the traditional knowledge

Concluding Remarks

Article 21 of the Constitution of India advocates for the fundamental right to life and personal liberty; subsequently, it brings about protection for TCEs owners.[xxii] Article 51A (f) makes it a fundamental duty of every citizen to preserve, respect, and protect the rich heritage of Indian culture.[xxiii] Therefore, the urgent need to protect TCEs has been acknowledged by our constitution itself. An important component of sui generis law suggests a distinct type of IPR protection, which provides for benefit-sharing scheme to the indigenous communities, which have either collectively created or perpetually innovated traditional cultural expressions, contrary to the fact that existing IP legislation confers exclusive rights to either individuals or corporation.[xxiv] Therefore the government should immediately formulate a committee and take a step forward towards providing legal protection to TCEs. A strong law in accordance with the international treaties will help the indigenous people to have a right in a true sense over their creations and expressions.

________

*Raja Reeshav Roy, B.A LL.B, 5th Year, National Law University, Jodhpur.

*Aditya Anand, B.A. LL.B, 3rd Year, National Law University, Jodhpur.

[i] Debraj Deb, Tripura’s bamboo water bottles make a splash, buyers include Raveena Tandon, The Indian Express (July 1, 2020), https://indianexpress.com/article/north-east-india/tripura/tripura-bamboo-water-bottles-make-a-splash-buyers-include-raveena-tandon-6482054/.

[ii] UNESCO, Recommendations on the Safeguarding of Traditional Culture and Folklore, http://portal.unesco.org/en/ev.php-URL_ID=13141&URL_DO=DO_TOPIC&URL_SECTION=201.html (15 Nov, 1989).

[iii] Ministry of Commerce and Industry, National Intellectual Property Rights Policy,  2016.

[iv] Traditional Cultural Expression, July 1, 2020: https://www.wipo.int/tk/en/folklore/.

[v] Dr. Ishwar V. Basavaraddi, Yoga: Its Origin, History and Development, In Focus, April 23, 2015.

[vi] Christoph Antons (ed.), Indigenous heritage and the digital commons 219-244, (Kluwer Law International, Netherlands, 2009)

[vii] 6^th Session of Intergovernmental Committee, Report on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (March, 2004).

[viii] Ruchika Goswami and Karubakee Nandi, Naming the Unnamed: Intellectual Property Rights of Women Artists from India, 16:2, JGSPL (2008).

[ix] Indian Copyright Act 1957 Section 2,

[x] V. L. Mony, Enforcement of Copyright Law in India and Judicial Response-A Critique (Y.S. books international, New Delhi, 2014).

[xi] Sanjeev Kumar, Copyright Registration Validity Period in India (July 1, 2020)https://www.setindiabiz.com/learning/copyright-registration-validity-period-in-india/.

[xii] “Protection of Traditional Cultural Expressions in India”, 3 FITM, (2016).

[xiii] Geographical Indication,(July 1, 2020),https://www.wipo.int/sme/en/ip_business/collective_marks/geographical_indications.htm (Last Modified 27^th March, 2020).

[xiv] Sudhir Ravindran andArya Mathew, The Protection of Geographical Indication in India – Case Study on Darjeeling Tea, Altacit Global, 2009.

[xv] Smarika Azad, Scope of Traditional Cultural Expression in India, Young Arena Litigators, 28 Sept, 2016.

[xvi] Susy Frankel, The mismatch of geographical indications and innovative traditional knowledge, Prometheus, 29:3, 253-267, (2011).

[xvii] Trade Related Aspects of Intellectual Property Rights Art. 27(3)(b).

[xviii]  Doha Declaration (2001) 19.

[xix] Biodiversity Act 2002 Section 2 (a).

[xx] Divya Pharmacy vs Union of India, 2018 SCC Online Uttarakhand. 1035.

[xxi] Biological Diversity Act 2002 Section 2(g).

[xxii] Constitution of India 1950 Article 21.

[xxiii] Constitution of India1950 Article 51A(f),

[xxiv] Priyal Anand, History & Development of Intellectual Property and Protection of Traditional Cultural Expressions (July 1,2020), : https://blog.ipleaders.in/history-development-intellectual-property-protection-traditional-cultural-expressions/.

THE RIGHT, THE WRONG: NATIONAL EDUCATION POLICY

Education is fundamental for achieving full human potential, developing an equitable and just society and promoting national development. Providing universal access to quality education is essential to economic growth, social justice and equality, scientific advancement, national integration and cultural preservation; and for India’s continued ascent, progress, and leadership on the global stage. Moreover, India has the highest youth population in the world, and our ability to provide high-quality educational opportunities to them will shape the future of our country. As a result of recent Covid-19 outbreak, various nations are undergoing drastic changes in the sphere of education and keeping in mind the serious blow that the pandemic has given to our education sector, it is high time India too should take a step ahead to improve the education sector of the nation. The government took cognizance of the present situation of educational sector yearning for progress and came up with a revolutionary decision to effectuate the changes that were long due. The Union Cabinet headed by PM Narendra Modi approved the National Education Policy 2020 recently, making way for large scale, transformational reforms in both school and higher education sectors.[1] This education policy will replace the thirty-four-year-old National Policy on Education(NPE), 1986, which was last modified in 1992.[2] This policy aims for a more holistic, flexible and multidisciplinary form of education in order to bring out the unique capabilities of every child. However, a detailed study of the targets set prompts us to point out certain flaws related to the said policy. In spite of being an exhaustive document, one can find numerous instances where the policy brings up more problems than solving the existing ones. The policy targets to increase the minimum teaching eligibility criteria to 4-year integrated B.Ed. Degree by 2030. This is a huge step in the realm of education and is aimed at improving the education standards throughout the nation. However, looking at the present condition of education standards where the student to teacher ratio is abominable,[3] increasing the eligibility further will only worsen the situation as even in the present, the teachers are not enough in number to meet the needs of students. Now, increasing the eligibility will only drive us away from the said objective instead of nearing it. Consequently, the reform to include vocational training from 6th grade, though will polish the skills in students but the shortage of teacher[4] will thwart the implementation of this policy. As the flexibility being provided in the new policy requires a high intake of teachers so as to accomplish the demand that will be created due to the flexible choice of subjects.The policy has emphasized on the employment of regional languages as the medium of instruction. Sanskrit will be offered at all levels of school and higher education as an option for students, including in the three-language formula. This, though, will strengthen the fading traditional languages yet its implementation in the culturally diverse nation will prove to be obverse as students will face difficulty in coping up if they have to shift in a region with a different dialect and regional language. Moreover, Indians always have had the edge over other Asian countries when it comes to employment in western or European countries as Indians due to grasp on the foreign language are able to compete at an international level. So, implementing this policy at a time when countries like China, which is known for opposing the idea of westernization, is also focusing on learning a foreign language, especially English.The policy provides for an Academic Bank of Credits to digitally store the academic credits earned from different Higher Education Institutions so that these can be transferred and counted towards final degree earned. This ensures multiple entry/exit points with appropriate certification. For example, Certificate after 1 year, Advanced Diploma after 2 years, Bachelor’s Degree after 3 years and Bachelor’s with Research after 4 years. At present, the absence of this digital bank causes a lot of difficulties for students. In case a student had to drop out of college due to extraordinary circumstances like lack of interest in the present course, certain personal issues, etc., his already earned credits were lost, and there was no way to resume his degree with the said credits. The creation of academic credit bank comes as a great relief to students who can now transfer or store their credits and resume their high studies whenever they find it feasible. Recommendations to promote online and digital education have been made in order to ensure preparedness to continue the learning process even in those circumstances where traditional methods of teaching are not possible. This comes in lieu of the recent Covid-19 outbreak, which jolted the existing education sector. The schools and colleges are closed from 16th March and examinations have been suspended indefinitely. Therefore, this change was long due, and on-ground implementations of the said guidelines will ensure that our system is prepared for any future pandemics or epidemics which might force us to change our patterns of learning and examining. The aim of assessment in the culture of our schooling system is to assess the progress of a student. But the method that was adopted was evaluating academic marks rather than assessing the holistic development of a student. The performance of a student was gauged on the basis of marks while the skills possessed was never given value. Consequently, it promoted the culture of coaching classes which are replacing valuable time for true learning with excessive exam coaching and preparation. Therefore, a reform in the assessment policy which focuses on the holistic development of students was long due.The target to achieve 100% adult literacy is not only unrealistic but also meritless even if achieved. On one hand, the policy is drafted to meet international standards and sustain the Indian education system in the coming “tech” decades, yet the policy does not change the age old criteria of literacy rate. In contrast, many developed nations have gone far to include knowledge of technology as criteria for determining literacy rate. Therefore, the authors opine that the policy should have focused more on changing the very criteria rather than meeting the set target with substandard criteria.The policy is also blamed for bypassing various legal aspects as education is a matter of a subject mentioned under the concurrent list, despite this Central government imposed the New Education Policy unilaterally avoiding all the objections and opposition recorded by various state governments.[5] Therefore, the policy is a blatant attempt to disrupt the inherent federal structure as laid out in the Indian Constitution. In addition, the Polit Bureau of various opposition parties are demanding that a thorough discussion in Parliament be held before its implementation begins.The new education policy aims to develop good human beings capable of rational thought and action, possessing compassion and empathy, courage and resilience, scientific temper and creative imagination, with sound ethical moorings and values. Though drafted to cater the largest youth population yet the policy sets certain targets which are unrealistic when it comes to the present state of education system of India. Also, the policy should address and rectify all the legal concerns associated with it.

---

[1] Cabinet Approves National Education Policy 2020, paving way for transformational reforms in school and higher education systems in the country, PIB, https://pib.gov.in/PressReleasePage.aspx?PRID=1642051,  last seen on 09/08/2020.

[2] New Education Policy 2020: 15 big reforms in schools, higher education explained, Business Today, https://www.businesstoday.in/current/economy-politics/new-education-policy-2020-15-big-reforms-in-schools-higher-education-explained/story/411735.html, last seen on 07/08/2020.

[3] Education Desk, Severe shortage of teachers in public schools; most vacant posts in UP, Bihar,Indian Express, https://indianexpress.com/article/education/severe-shortage-of-teachers-in-public-schools-highest-in-up-bihar-report-5508949/, last seen on 07/08/2020.

[4] Anisha Singh, Teacher’s Crisis In India: Country Falls Short Of 1 Million School Teachers, NDTV, https://www.ndtv.com/education/indias-teachers-crisis-country-falls-short-of-1-million-school-teachers-1778220, last seen on 06/08/2020. 

[5] PTI, New Education Policy ‘unilateral’ drive to destroy Indian education: CPI(M), Hindustan Times, https://www.hindustantimes.com/education/new-education-policy-unilateral-drive-to-destroy-indian-education-cpi-m/story-iK1ucs28aOn5yNgCJwe5xI.html, last seen on 08/09/2020.

________

*Prateek Khandelwal, B.B.A LL.B, 2nd Year, Chanakya National Law University, Patna

*Falguni Sharma, B.A LL.B, 2nd Year National Law University, Jodhpur.

ALL I WANT TO SAY IS THAT – THEY DON’T REALLY CARE ABOUT US

Tell me what has become of my life/ I have a wife and two children who love me/ I am the victim of police brutality, now/I’m tired of bein’ the victim of hate/You’re rapin’ me of my pride Oh, for God’s sake/I look to heaven to fulfill its prophecy/Set me free.^[1][2]

Oh yes.

The first time the author came across the phrase ‘Police Brutality’ was from the 1996 release of Michael Jackson titled ‘They don’t care about us’,  inspired by the Rodney King trial (and also from Michael’s own personal experience). While grooving to the beat, the weight of the words often passes over you. Rolling Stones’ designation of the sixth greatest album of all time² goes to Marvin Gaye’s ‘What’s Going on’, a daring venture by Gaye that inspired a volley of revolutionary black music. It simply says ‘Don’t punish me with brutality’.

The Fine Art of Policing

The police were established to fill the social control vacuum created by industrial development which ‘separated class from class and eroded away older, more personal mechanisms of social control.^[3] Police surveillance signified a deep penetration of the political authority of the state into daily life.^[4]  An ethos of “stay-low-and-avoid-trouble-unless-real-police-work-is-called-for” permeates police organizations.^[5] Only tasks involving criminal apprehension are attributed to symbolic importance.^[6] In the case of patrol works, for instance, charged with enforcing ambiguous generalized statutes and operating from an autonomous, largely isolated position within the city, it is not surprising that police have internalized a standard of conduct which dictates that they must control and regulates all situations in which they find themselves in.^[7][A]ny misuse of public authority threatens the equilibrium of a system resting so fundamentally on the consent of the governed.^[8] When power is exercised arbitrarily by the state, a person is made to act not in accordance with a legitimate, general rule but at the pleasure of state officials.^[9] Frequent arbitrariness in the political domain leads to tyranny, quite like when persistently present in the social sphere, it leads to slavery.^[10]Assuming, at least conceptually, that some police use of force is necessary and justified, there appear to be two other kinds of forces based on the mensrea of the police – extralegal and unnecessary.^[11] Extralegal violence involves the willful and wrongful use of force by officers who knowingly exceed the bounds of their office.^[12] Unnecessary/non-instrument brutality would be used to refer to brutality which occurs in everyday police work with no apparent need and without a clear purpose.^[13]

‘For it’s Tommy this, an’ Tommy that, an’ “Chuck him out, the brute!’

Police brutality “serves as a lightning rod for widespread public fear and anger” and may lead to “deep societal chasms.”¹⁴ One explanation for police brutality arises from how police work in itself is brutal and dehumanizing, coupled with frustration, phobia and tension, and uncertainty about the outcome of an action or a conflict.^[14] Survivors of police brutality and families of victims who are killed accumulate scars that may last well past the swiftly shifting sands of the relentless 24-hour news cycle.^[15] Police commissions have come and gone. Their ponderous recommendations have not brought about radical changes to the way we are policed. “[E]xcessive force is used quite often on the most disenfranchised members of society precisely because of their position in the social order.^[16] While the US reeled under riots that took place consequent to the death of a man from the black community^[17], elsewhere in the Indian Ocean, “In a brazen display of brute force, Police attack[ed] a peaceful protest in support of #BlackLivesMatter.^[18] Earlier in the month, the president of the democracy had issued an Extraordinary Gazette notification^[19] announcing the Presidential Directive for the establishment of a Presidential Task Force to build a Secure Country, [a] ‘Disciplined, Virtuous and Lawful’ Society.^[20]

Tell me what has become of my rights?

The fundamental structure of the social world of the police can be narrowed down to six normative orders – law, bureaucratic control, adventure/machismo, safety, competence, and morality.²² Law is often viewed not as a determinant of police behavior, but as a resource for them to achieve some larger purpose, often described as “peacekeeping”^[21]or “order maintenance”^[22]. The use of administrative policy is the primary instrument in “which law enforcement agencies attempt to control officer discretion”.^[23] There is inherently widespread mistrust of police officers. “[O]fficers who fatally shoot a suspect or even an unarmed civilian are overwhelmingly cleared of wrongdoing following a standard internal investigation of the incident.”^[24] Because the reasonableness of an officer’s actions depends upon the unique facts and circumstances of each case, it is difficult to draw “bright line” rules that separate legally reasonable force from illegally excessive force.^[25] Minority communities know that the so-called “Blue Wall of Silence”, and the fear of retaliation by colleagues, keeps officers from “ratting out” fellow officers or coming forward with incriminating evidence that might support a victim’s account of brutality.^[26] Further, the doctrine of qualified immunity prevents government agents from being held personally liable for constitutional violations unless the violation was of “clearly established law.”^[27]

Right the wrong – fin.

As I write this, Amnesty India called on the Tamil Nadu government in India, to “end impunity for police officers” with regards to the alleged custodial death of P Jayaraj and his son J Bennix who were imprisoned by police in Thoothukudi district. Excessive use of force by the police ought to be criminalized. Police tyranny, funding, accountability, and recruitment procedures need a thorough relook. Police Review boards must be empowered to identify administrative, supervisory, training, tactical, or policy issues within the law enforcement agency that lead to misconduct and to demand the correction of those issues.^[28]To avoid high handedness there should be proper indoctrination of policemen at the grassroots. There have been increasing calls to dismantle the police in many jurisdictions. Examples from Iraq and Guatemala indicate that de-Ba’athification and rebranding respectively were executed in an unplanned fashion and rendered the efforts futile.^[29] A key takeaway would be that meaningful reform requires a clear sense of direction rather than simply a re-packaging of the existing model.^[30]We do not want more Garret Rolfes, Stacey Koons, Myles Cosgroves, or Derek Chauvins^[31] in the making. To quote Bryan Stevenson, ‘An absence of compassion can corrupt the decency of a community, a state, a nation. Fear and anger can make us vindictive and abusive, unjust, and unfair until we all suffer from the absence of mercy and we condemn ourselves as much as we victimize others.”³²

________

*Anita Elizebeth Babu, The National University of Advanced Legal Studies, Kochi.

[1] They Don’t Care About Us, Genius, available at https://genius.com/Michael–jackson–they–dont–care–about–uslyrics, last seen on 27/06/2020.

[2] Greatest Albums of All Time, Rolling Stone, Stone, R., and Stone, available at https://www.rollingstone.com/music/music–lists/500–greatest–albums–of–all–time–156826/marvin–gaye–whatsgoing–on–2–53034/, last seen on 27/06/2020.

[3] Marx, Karl & F. Engels, Marx, and Engels on Britain, 263 (2^nd ed., 1962).

[4] Zhiqiu Lin, Policing the Wild North-West: A Sociological Study of the Provincial Police in Alberta and Saskatchewan, 1905-32, 14 (2007).

[5] Van Maanen John, Police socialization, 20 Administrative Science Quarterly 207, 222 (1975).

[6] Van Maanen J, The Asshole, 307, 313 in Policing: a view from the street, (Manning PK, Van Maanen J (eds), 1978).

[7] Ibid.

[8] Jon 0. Newman, Suing the Lawbreakers: Proposals to Strengthen the §1983 Damage Remedy for Law Enforcers’ Misconduct, 87 Yale L.J. 447, 447 (1978).

[9] Rajeev Bhargava, Arrest the virus of arbitrary power, The Hindu (24/06/2020), available at https://www.thehindu.com/opinion/lead/arrest–the–virus–of–arbitrary–power/article31901161.ece, last seen on 27/06/2020.

[10] Ibid.

[11] Jyoti Belur, Permission to Shoot?: Police Use of Deadly Force in Democracies, 4 (2010).

[12] Fyfe J, The split-second syndrome and other determinants of police violence, 207, 207 in Violent Transactions (Anne T. Campbell, John J. Gibbs (eds), 1986).

[13] András Kádár, Police in Transition: Essays on the Police Forces in Transition Countries, 232 (2001). ¹⁴ Alexa P. Freeman, Unscheduled Departures: The Circumvention of Just Sentencing for Police Brutality, 47 Hastings L. J. 677, 706 (1996).

[14] Budimir Babovic, Police Brutality or Police Torture, 23 Policing: Int’l J. Police Strat. & Mgmt. 374, 376 (2000).           

[15] Esther J. Cepeda, Life in a Violent 24-Hour News Cycle, STANDARD-EXAMINER (15/07/2016), available at http://www.standard.net/National–Commentary/2016/07/15/violence–socialmedianews–mentalhealth–columnCepeda, last seen on 27/06/2020.

[16] Douglas W. Perez, Common Sense about Police Review 24 (1994).

[17] The last 30 minutes of George Floyd’s life, BBC News (30/05/2020), available at https://www.bbc.com/news/world–us–canada–52861726, last seen on 27/06/2020.

[18] See, Mangala Samaraweera, Facebook, available at https://www.facebook.com/permalink.php?id=144991613100&story_fbid=10157902853738101, last seen on 27/06/2020.

[19] Proclamations & C., by the President, The Gazette of the Democratic Socialist Republic of Sri Lanka, Documents.gov.lk. available at: http://documents.gov.lk/files/egz/2020/6/2178–18_E.pdf, (02/06/2020) last seen on 27/06/2020.

[20] Sri Lankan president appoints a Presidential Task Force to build a secure country, virtuous society, South Asia Monitor, available at https://southasiamonitor.org/index.php/sri–lanka/sri–lankan–president–appointspresidential–task–force–build–secure–country–virtuous, last seen on 27/06/2020. ²² Steve Herbert, Police Subculture Reconsidered, 36 Criminology 343, 361 (1998).

[21] Bittner, Egon. The policeman on skid-row: A study in peacekeeping, 32 American Sociological Review 699, 699 (1967).

[22] Wilson, James Q., Varieties of Police Behavior (1968).

[23] Walker, S., Taming the system: The control of discretion in criminal justice, 1950-1990, 23 (1993).

[24] Kelsy, U. Are Today’s Cops Too Quick to Shoot?, The Atlantic (5/11/2013), available at https://www.theatlantic.com/national/archive/2013/11/are–todays–cops–too–quick–to–shoot/281159/, last seen on 27/06/2020.

[25] Geoffrey P. Alpert & Michael R. Smith, Police Use-of-Force Data: Where We Are and

Where We Should Be Going, 2 Police Q. 57, 59 (1999). Also see Graham v. Connor, 490 U.S. 386 (1989, Supreme Court of the United States).

[26] Gabriel J. Chin & Scott Wells, The “Blue Wall of Silence” as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, 59 U. Parr. L. REV. 233, 252 (1998).

[27] William Baude, Is Qualified Immunity Unlawful?, 106 California Law Review 46, 46 (2018). Also see Justice Sotomayor’s dissent in Andrew Kisela v. Amy Hughes, 584 U. S. ____ (2018, Supreme Court of the United States).

[28] Reforming Policing in America, Equal Justice Initiative, available at https://eji.org/issues/policing–inamerica/, last seen on 27/06/2020.

[29] See, Dismantling the police: lessons from three places that tried it, The Conversation, available at https://theconversation.com/dismantling–the–police–lessons–from–three–places–that–tried–it–140303, last seen on 27/06/2020.

[30] Ibid.

[31] The police officers who murdered Rayshard Brooks, Rodney King, Breonna Taylor, and George Floyd.

[32] Bryan Stevenson, Just Mercy: A Story of Justice and Redemption, 14 (2014).

SECTION 438, CRPC – THROUGH A CRITICAL LENS

In India, the phrase “innocent until proven guilty” has been incorporated in provisions of the constitutional and penal laws of the country. There are several provisions in the laws which provide for the protection of the accused, as they merely are accused of the offense and have not yet been convicted. One of the most stringent ways in which the freedom and liberty of an individual are curbed is by way of arrest. The antidote, in some ways, for this is the provision of anticipatory bail. This is incorporated under Section 438 of the Code of Criminal Procedure, 1973, which reads-

“When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offense, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”[1]

It was the 41^st Report of the Law Commission of India which recommended the introduction of this provision. It emphasized that the need for such a provision arises because there are instances wherein influential people to try implicate their rivals in false cases for either getting that detained for some days or maligning their name.[2] The procedural aspect of this provision was elaborated in the 48^th Report of the Law Commission with a view to preventing the abuse of this provision at the instance of unscrupulous petitioners.[3] Other reports of the Law Commission also mentioned this provision, such as the 154^th Report which discussed this[4], 177^th Report which discussed the misuse of powers of arrest by police highlighting the need for this provision, etc. However, more recently, the 268^th Report further stressed on the need and use of the provision of anticipatory bail owing to the high numbers of prisoners awaiting trial. Therefore, the need and increase in the applicability of this provision are felt and recognized in the country. However, in the absence of clearly established rules as to the implementation of this provision, the High Courts of the country often gave contradicting opinions about the provision. Even though this highlights the beauty of law as to how the same provision can be interpreted in different ways, it can often lead to confusion amongst the Courts. Majorly, there were 2 extremely divergent opinions about this provision. One line of interpretation was that keeping in mind the rationale of the provision, it cannot be subjected to needless restrictions or a narrow interpretation. It was held, in the case of Gurbaksh Singh v. State of Madhya Pradesh[5], 5 judge bench of the Hon’ble Supreme Court, held that “Since the denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of section 438 especially when no such restrictions have been imposed by the legislature in the terms of that section.”[6]The other interpretation was on the other extreme end wherein it proposed that the provision should not be applied liberally, but instead, should be restricted in time/duration. It was held in the case of Salauddin A. Shaikh v. State of Maharashtra that “Anticipatory bail is granted in anticipation of arrest in non-bailable cases but that does not mean that the regular court, which is to try the offender, it ought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail.” These different opinions were existing concurrently. This debate was, however, finally put to rest in the case of Sushila Agarwal v. State (NCT of Delhi)[7] wherein the Hon’ble Court chose to adopt the middle path, bringing both opposing interpretations together. Through this case, the Hon’ble Court gave elaborate guidelines for the applicability of the provision. In order to prevent the misuse of this provision, the Court established certain safeguards:

1. The Courts have to take into consideration the nature of the offense, the role of the person, the likelihood of his influencing the course of the investigation, or tampering with evidence, the likelihood of fleeing justice, etc.[8]
2. Involvement of the public prosecutor was also increased.
3. Even though there was no bar to grant bail till the end of the trial, it stated that the bail should not be “blanket” and should be specific to the charges that were framed against the accused.
4. The Courts were also empowered to impose restrictive conditions if it deemed fit and the same was to be decided on a case by case basis.

The Courts have recognized the need and importance of the provision of Anticipatory Bail. Even though some unscrupulous elements may, at times, use it as an escape from the hands of law, one cannot do away with it. By establishing certain safeguards, the Hon’ble Supreme Court has attempted to curb the misuse of this provision and the implementation of the same in the same intent as that of those who incorporated it in the Code. This is a step taken a step in the direction of upholding the right to liberty of even the accused, thereby reaffirming the legal maxim of “Ei incumbit probatio qui dicit, non qui negat” and further strengthening the foundation of Rule of Law in the country.

________

*Neha Jain, Rajiv Gandhi National University of Law, Punjab.

[1] Section 438(1), The Code of Criminal Procedure, No. 1, Acts of Parliament, 1973.

[2] ¶ 39.9, Vol I, 41^st Law Commission Report, 1969.

[3] ¶ 31, 48^th Law Commission Report, 1972.

[4] ¶ 18, 154^th Law Commission, 1996.

[5] Gurbaksh Singh v. State of Madhya Pradesh, (1980) 2 SCC 565.

[6] ¶ 26, ibid.

[7] Sushila Aggarwal v. State (NCT of Delhi), 2020 SCC OnLine SC 98.

[8] Ibid.

PUBLIC INTEREST LITIGATION: CROSSING THE THIN LINE BETWEEN JUDICIAL ACTIVISM AND JUDICIAL OVERREACH

Public Interest Litigation (PIL) has become a substantial part of the Indian legal system. It evolved with the emerging trend of judicial activism in India and became a boon for adjudication of matters with the vested public interest. The fact that any public-spirited citizen can file a PIL in a court of law for the protection of public interest saw a plethora of cases which filed as PIL went on to become judicial precedents establishing certain important principles, incorporating recognized international standards into Indian legal system and strengthening our legal jurisprudence. This is especially true for the environmental and human rights arena.

A Road to Judicial Activism

The first-ever PIL filed in India was in the year 1976, the case being Mumbai Kamgar Sabha v. M/s Abdulbhai Faizullabhai[1] and others which were filed by a worker’s union for payment of bonus to workers which was abruptly stopped by the employers. The foundation was laid and thereafter we witnessed a series of landmark cases demonstrating a versatile combination of PIL and Judicial Activism in India. The case of Vishakha vs. State of Rajasthan[2] was one such case wherein in spite of the absence of any law governing an act of sexual assault or harassment with women at workplaces, the Supreme Court went on to decide the matter by giving weightage to India’s international obligations for the protection of women and their rights, particularly the Convention on Elimination of Discrimination Against Women (CEDAW). This very Judicial Activism established guidelines to be followed in sexual harassment cases with women at workplaces which eventually led to the enactment of the 2013 Sexual Harassment Act. It’s pertinent to mention the high priority PIL’s filed by Mr. M.C. Mehta for the protection of the environment (Kanpur Tanneries case[3], Oleum Gas Leak case[4] to name a few) which eventually led to the establishment of environmental jurisprudence in India. The provisions related to environmental protection which ornamented Part IV and IVA of our Constitution was now interpreted and recognized as a right under Article 21 of our constitution. Judicial Activism also came to our rescue in protecting human rights, be it taking note of the undermining situation of undertrials in Bihar[5], or entertaining a writ petition filed by a human rights activist against doctors who refused to attend to a victim of a road accident and holding that preservation of human life is of utmost importance.[6]

When Judicial Activism becomes Judicial Overreach

PIL is nothing short of a blessing for a large mass of people who are denied basic rights and judicial activism is a mechanism to achieve that. But the question arises when does judicial activism become judicial overreach and whether it goes against the principle of separation of power? It would be wrong if we say that it is not an exaggeration of judicial power. But it also cannot be denied that few instances needed that sort of judicial interference in order to achieve justice. It brought the titles of green judges and green benches, it recognized the crucial significance of human rights principles, and people who could not afford approaching courts got access to secure justice. But there obviously remain areas of criticism. First being, it has been unable to place enough emphasis on the Rule of Locus Standi as to who is coming to the court and with what kind of prayer. It is important to determine, whose case is going to be heard and whether the petitioner is unable to approach the court and, in that context, admitting the PIL is justified or not. In my view, there should be more clarity to what sort of cases would be heard as PIL’s by courts. There should be laid down minimum standards for the petition to be qualified as a PIL and the petitioner should be aware from beforehand about the chances of his petition getting admitted. This would discourage filing and entertain of frivolous petitions. It is alarming that we currently have PIL’s filed for striking down ‘socialism’ and ‘secularism’ from the Preamble of our Constitution. We also have a PIL filed for making Aadhar Card mandatory for access to social media platforms. These need to discourage. The second criticism is when courts clearly start stepping into the shoes of legislative bodies. Courts should not pass orders which have got large scale collateral consequences. For instance, in a PIL concerning road safety, the Apex court also banned the sale of liquor at retail outlets within 500m of any national or state highway. Another instance is, court order to impose diesel cess after lifting the ban on diesel vehicles is nothing but a legislative function. It is incumbent to note that vehicular norms are to be decided by legislative bodies. It also went out of hand when courts while adjudicating matters related to betting in a cricket, went on to direct the functions, role, and composition of the BCCI. These are certain provisions that are contained in a Legislative enactment and therefore courts cannot exercise these legislative functions.[7]Lastly, the system of costs needs to be more apposite. Huge costs need to be imposed in completely frivolous PIL’s so that it discourages aimless efforts to waste the court’s time. There is a need to lay down some clear rules with regard to the above contentions raised in order to prevent judicial activism in PIL’s from becoming over-reaching. It is upon the judiciary to introspect, remove the lacunae and once again establish PIL as a substantive collaborative effort to secure justice.

________

*Dipshi Swara, LL.M, Chanakya National Law University, Patna

[1] Mumbai Kamgar Sabha v. M/s Abdulbhai Faizullabhai AIR 1976 SC 1455 (India).

[2] Vishakha vs. the State of Rajasthan (1997) 6 SCC 241 (India).

[3] M.C. Mehta v. Union of India (1988) 1 SCC 471 (India).

[4] M.C. Mehta v. Union of India AIR 1987 SC 1086 (India).

[5] Hussainara Khatoon v. State of Bihar (1980) 1 SCC 98 (India).

[6] Parmanand Katara vs. Union of India AIR 1989 SC 2039 (India).

[7] B Nagarathnam Reddy, Judicial Activism Vs Judicial Overreach In India, 7 GJRA. 82, 83 (2018).

AZAADI-A WOMEN’S PERSPECTIVE

In this Patriarchal setup where the sexual harassment, character assassination of a woman is being normalized by the certain masses. It is to be understood that a woman has Individual Dignity, Modesty in society. Women as an identity have been oppressed and a part of social inequality from birth till death in various stages, Be it Female infanticide, education, harassment, freedom, dowry, Jobs, and submissiveness. The provisions enshrined in the Indian Constitution which protect the dignity of women is the preamble[1] which ensures Justice, equality and fraternity, Art. 21[2]which expands it to the Right to life with dignity, Art. 51A(e)[3] stipulates that all the citizens have a duty to promote harmony and renounce derogatory practices against women, Art.15(3)[4] does provide special provision for women which brought legislation like Prohibition of child marriage act,2006[5]which makes deterrent to the child marriage especially of a girl below 18 years, Under Dowry prohibition Act,1961[6] which includes dowry as any cash, jewelry, valuables, or property which the husband or his family members demand from the bride‘s parents at the time of marriage, as a consideration of marriage[7], the dowry system which was and is still a norm in India, Protection of Women from Domestic violence Act,2005[8] which includes physical, emotional, sexual and economic violence against women.[9] Criminal Law (Amendment) Act,2013[10] which amended the definition and punishment of Rape and Introduced new sections of offense and procedure related to women, MTP Act 1971[11], was passed to ensure that there should not be any illegal abortions especially of a female child, IPC 1860[12] inserted sec 498A(cruelty),304B (Dowry death), Sec 312-318(Specifically deals with miscarriage) and other women related offenses, Sexual harassment of woman at workplace(prevention, prohibition, and redressal)Act,2013[13] which talks about penalizing the harassment at workplace and also recommends to form a committee for redressal and grievances regarding women harassment but still we lag in terms of woman injustice and crime against them. Vishakha guidelines[i] by Supreme court given in 1997 talks about women’s safety in public spaces but still many sectors don’t consider as a priority.

The Hon’ble Supreme court has tried its best to ensure equality, justice, and dignity amongst women in their landmark judgments-

1. In Lata Singh V.State of Uttar pradesh[14]

Lata Singh, an adult woman left her home and married to male other than his caste. Her brothers who were unhappy with this marriage filed a missing person report of her and alleged that Lata has been abducted and this resulted in the arrest of three-person of her family. To rescue her husband’s family member she filed a petition and which resulted in the landmark judgment by the Supreme court that an adult woman has the right to marry or live with anyone of her choice. This judgment ensured a belief for the women on her approach, choice, and dignity. Basically, a law doesn’t bring a social change unless and until that society brings it. The male dominating society has always reduced a woman into a mother, daughter, sister, wife, and a secondary title which is supposed to serve man in any or another form. This character has always been overshadowed by their intellect, designation, and presence in a public platform. It is to be understood that a concept of inferiority complexion always revolves around male superiority. Even the literature showcase ‘He’ in every daily routine as a common word we use but it does show male superiority. In Hindi, we do say ‘Nadi behti hai’ aur ‘dariya behta hai’,’baarish girti hai’ aur ‘badal garajta hai’.So, it does show how the literature has also made space for the Complexion. The privacy and consent of a woman have always been taken granted by the male patriarch in the house. Women have been treated as property and an object just to fulfill the terms laid down by Men. The woman sexuality, masculine jobs, freedom to express have always been considered as a taboo in the society. A male patriarchal society from the birth of the girl child expects and treat differentially with a male child. A male child born with privilege in every condition which is supposed to come but in another case, it comes with unreasonable restrictions. Even after marriage, a woman sacrifices her home, title, job, comfort, and freedom which is treated as an obligation It is difficult being a woman, we just let her sacrifice make a secondary by restricting just as her duty. It should be a big ‘NO’ to this just to let her choose what role she wanted to play in society. Male patriarchy will not define what she supposed to be. If we talk about equality and libertarian approach then Let her come with her own idea of an egalitarian concept which will be free from biasedness, dowry, sexual harassment, representation in public spaces, questioning the anti-women customary practices, freedom to express her body, choice, and sexuality. Many social and political movement gave a platform to show causing outrage in public spaces against the sexual exploitation against women. Recently, the Metoo movement became a platform to showcase a hidden offense that was being suppressed or being normalized by society and it shows that Woman exists and exists with Dignity. Silences can be read but it has to be outrageous in a public platform. These voices against sexual harassment must not be taken for granted. Well, the voices release the hidden truth of society but we are still far away from attaining social equality and liberty for a woman. As in terms of Martha Albertson “A man fears a woman’s liberation because he fears his superiority”

________

*Abhilash Arun Sapre, Asst.Professor of Law, Kalinga University, Raipur.

*Tanya Pandey, Advocate, Jharkhand High Court, Ranchi.

[1] INDIAN CONST.,1950

[2] Id

[3] Id

[4] Id

[5] Prohibition of child marriage Act,2006, Act No.6 (2007)

[6] Dowry prohibition act,1961, Act No.28(1961)

[7] Dowry prohibition act,1961, Sec.2

[8] Protection of Women from Domestic violence Act,2005, Act No.43(2005)

[9] Protection of Women from Domestic violence Act,2005, Sec.3

[10]Criminal Law (Amendment) Act,2013, Act No.13(2013)

[11]The Medical Termination of Pregnancy Act,1971, Act No.34 (1971)

[12]Indian Penal Code,1860.Act No.45(1860)

[13] Sexual harassment of woman at workplace(prevention, prohibition, and redressal)Act,2013, Act No.14,2013

[14] Lata Singh V.State of Uttar Pradesh,(2006) 5 SCC 475.

LEGAL ANALYSES OF INDIA’S BAN ON CHINESE APPS: ISSUES AND CHALLENGES

 

Introduction:

India is nowadays one of the world’s largest markets for digital internet technologies. While operating in India one needs to abide by the principles and laws issued by relevant ministries and departments, including those pertaining to data security and privacy of individual data. On 15 June 2020, a violent clash erupted on India- China border in Ladakh that left 20 Indian soldiers dead. The Union Government initiated a bold move in banning 59 Chinese apps citing data security and sovereignty concerns. These embrace the popular ones like TikTok, UC Browser, Club Factory, WeChat, etc. The decision to ban the Chinese app has a significant impact since it is a proven fact that Indians are highly dependent on Chinese apps. This article analyses the legality of India’s ban on Chinese apps and also deals with the various issues and challenges in the law.

The legality of the ban on 59 Chinese Apps

The Ministry of Electronics & Information Technology (IT) has blocked 59 Chinese Apps, by invoking Section 69A of the Information Technology Act, 2000 read with the relevant provisions of Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009[1]. According to a press statement issued by the Ministry of Electronics & IT, the banned apps have “engaged in activities which are prejudicial to sovereignty and integrity of India, defense of India, the security of the state and public order.” The ban has been invoked under Section 69A of the Information Technology Act, 2008. This power can be exercised where the Central Government or it’s authorized officers if they consider it “necessary or expedient to do so in the interest of sovereignty and integrity of India, defense of India, the security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offense relating to above”[2]. These components stem from the grounds specified in Article 19(2) of the Indian Constitution permitting reasonable restrictions on the right to the freedom of speech and expression. The audacious move by the Indian Government has been claimed as a “digital strike” but legal analysts seek greater clarity and justifications on the legal process backing this decision of the government.

Issues and Challenges

There are some legal repercussions that have emerged from the Indian Government’s decision to block access to 59 Chinese apps. A brief analysis regarding the legal repercussions of the ban is put forth below.

• The ban is inconsistent with the provisions of the IT Act

The Government’s decision to ban 59 Chinese apps is inconsistent with the provisions of the Information Technology Act, 2000. Firstly, the procedure for exercising this blocking power is prescribed in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. As per Rule 5, the power to block public access to online information is accorded to a Designated Officer and that can be exercised only upon a request from either a “Nodal Officer” or a competent court. In this case, the decision does not come either from a court or from a Nodal officer. Secondly, Rule 7 requires that the request for blocking a computer source has to be examined by a committee chaired by the Designated Officer. Rule 8 requires the Designated Officer to serve a notice upon the intermediary against whom the request has been made to file a reply or any clarifications. Subsequently, the Committee needs to examine the request and in case it finds merit in the request, it seeks approval from the Secretary, Department of Information Technology upon such recommendation, and directs the intermediary to block the required information. While the press note does not mention the rule under which the government has proceeded, it appears this procedure has not been followed. The government seems to have instead relied upon Rule 9 that provides for blocking in emergency cases. This seems evident from statements in the press release such as “emergent nature of threats” and “a matter of very deep and immediate concern which requires emergency measures”. Given that the government has utilized an emergency narrative, it appears that this press release is only an interim measure that still requires ratification from the committee[3]. In any case, the government had been aware of the alleged shortcomings of the banned apps for a while. Hence, the urgency required to resort to Rule 9 did not exist.

• Reasons to be recorded in writing

Section 69A of the Information Technology Act requires that the order for blocking of access to online content must be supported by reasons and the same have to be recorded in writing. In the landmark case of Shreya Singhal v. Union of India [4]the Supreme Court held this to be very important as the Order invoking Section 69A can be challenged under Article 226 of the Indian Constitution. In this case, the sole notification available publicly is a press release that does not satisfy the requirement of order on part of the government.

• Restriction on Fundamental Rights of Individual

The Indian government’s decision to ban 59 Chinese apps limits the fundamental right to free speech and expression. It restricts their freedom of access to the internet under Article 19 of the Indian Constitution.  The decision to ban Chinese apps has a profound impact since a large part of the Indian population accesses those services regularly. Starting from the purchase of groceries (Big Basket App) and taking food (Zomato and Swiggy Apps) to book tickets (Make my Trip App), majority of Indian citizens depend on the Apps which are either developed by China or the Apps in which China have major shares of investments. Estimates by Sensor Tower revealed that TikTok has about 611 million downloads in India over the app’s lifetime. The app has brought marginalized people online in a way that no other app has been able to[5]. An independent artist from the rural background was able to showcase their skills and talent in a way that was previously the monopoly of groups with greater social capital. In Faheema Shirin v. State of Kerala[6] the Kerela High Court recognized that interfering with someone’s access to the internet violates inter alia their fundamental right to privacy. In light of this, the ban amounts to a significant restriction on the right to freedom of speech and expression and less restrictive should be used by the Government.

• Absence of the Public Order

The legal order that empowers the designated authority to implement the ban has not been made available in the public domain by the Government of India. The only source of information with regards to the order in a press release by the Press Information Bureau. Although Rule 16 of the Blocking rules requires strict confidentiality to be maintained regarding blocking requests, complaints received, and actions were taken but this provision primarily applies to intermediaries. It is a matter of grave concern as 59 apps have been blocked and the order stating the same has not been released yet. The government ought to disclose the orders passed in the interests of transparency and accountability. Recently, it has also been recognized by the Supreme Court in the case of Anuradha Bhasin v. Union of India[7] that publishing such orders is the only way in which the reasons and rationale for the decision can be judged. Challenging the decision-making process requires the reasoning to be made public. This has resulted in a wholly unprecedented legal scenario, if not a dangerous precedent.

Conclusion

Indian Government’s decision of banning Chinese apps is a great initiative to ensure the privacy of citizen’s data. Admittedly protecting Indian user’s data from Chinese apps is a matter of valid concern. The Indian Government could have resorted to alternate remedy instead of a blanket ban to 59 apps without considering the individual case of the fundamental right to access the internet. A restriction on access to the internet also has to be fair, just and reasonable and not arbitrary. Instead of blocking the apps, the Indian Government should think of establishing a robust legal framework for cyber laws to address national security concerns. India still does not have a dedicated cybersecurity law which will adequately safeguard the privacy data rights of individuals in sharp contrast to an authoritarian regime like China. For now, the least the government can do is to make available in the public domain, the Interim Order stating detailed reasons to enable the vast number of Indian Citizens associated with the apps to know the rationale behind the ban. Hence, instead of blocking the apps under the present Information Technology Regime, the establishment of a more elaborate regime ought to be considered.

________

*Jyoti Sharma, National Law University and Judicial Academy, Assam.

[1] K. Bharat Kumar, “What will be the impact of Chinese apps ban?”, https://www.thehindu.com/news/national/the-hindu-explains-what-will-be-the-impact-of-chinese-apps-ban/article31991127.ece (July 5, 2020)

[2] Information Technology Act, 2000, Section 69 A. Clause 1.

[3] Nandagopal Ranjan, “How ban of TikTok and other Chinese apps will be enforced; the impact for Indian users” https://indianexpress.com/article/explained/india-bans-chinese-apps-impact-explained-6482150/, (July 4 2020)

[4] (2015) 5 SCC 1

[5] Craig Chapple, “TikTok Crosses 2 Billion Downloads After Best Quarter For Any App Ever”, https://sensortower.com/blog/tiktok-downloads-2-billion

[6] 2019(2) KHC 220

[7]Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, 10-01-2020