Thursday, 28 June 2018

The relevance of CEDAW today



The Convention on the Elimination of all Forms of Discrimination Against Women (“CEDAW”), is a treaty quite glorified in its times. It is treated almost as the Universal Declaration of Human Rights (“UDHR”) of women’s rights and indeed many similarities can be found with the UDHR and the CEDAW for both are frameworks based on which development of international human rights law has happened even when the CEDAW itself is based on the UDHR. It is interesting to note that despite its non-binding nature, the UDHR still remains the holy grail of human rights as a source to draw rights from – such is also the case with CEDAW in my humble opinion. I have mixed opinions about the nature and relevance of the CEDAW as a document relevant in modern times to champion the cause of women’s rights in general for much has changed in the socio-economic scenario since the adoption of CEDAW. These views are expressed in the following paragraphs.

            At its outset, CEDAW contained certain provisions that were seen as radical and ground-breaking which undermined its effectiveness at the start with blanket reservations on non-implementation of Arts. 2 and 9(2) being made by all Islamic countries as men and women cannot be considered equal under Sharia law[1]. CEDAW had set out with a noble objective to establish equality of women in all spheres – public and private but disregarded customs, practices or religion which sometimes, more often than not formed the basis of this discrimination. CEDAW, though not completely ineffective, could not achieve much in countries which followed discrimination on the basis of religion and customs like the Islamic countries as mentioned hereinbefore. What was required was social movements in the grassroot level, activists and dissemination of knowledge about equality instead of a piece of paper that declared responsibility on states. Non-production of the desired effect could not undermine the inherent importance of CEDAW as a legal framework convention for protection of women's rights.

            Even before the conception of women’s rights as an international issue, in Bengal, Raja Rammohan Roy championed the cause by eradicating the sati system from Bengal, then eventually spreading awareness to the whole of India. He was one of the pioneers of a system of gender-neutral rights by advocating for right to property to be gender-neutral under Hindu law, which is the norm today. In that sense, the objective of CEDAW had already began its journey in the late 1700s in Bengal and has come a long way. This example is to support the fact that the sensitive fabric of religion and customary practices cannot be trampled upon except by education and awareness, only possible through effective leaders like Raja Rammohan Roy. CEDAW, being a non-self-executing treaty could do little to help the really needy women of the developing and underdeveloped countries whose rights failed to realise due to the massive hindrance caused by illiteracy, religion and economic stagnation. CEDAW might have given a helping hand to those women who were resourceful and belonged to the upper strata of society so as to be able to afford a dispute settlement internationally.

            Although not as practically useful as it is on paper, CEDAW was the starting point of the realisation of women’s rights and the guiding light of international conscience revolving around issues relating to women’s rights. It was the first major acceptance, on principle, of responsibility of discrimination against women and that something needed to be done to counter this imbalance. This gave rise to the suggestion that individuals as well as communities can bear rights, which led to the debate of liberal feminism vs. radical feminism. It entails the acceptance that women are not only individual bearers of rights as self-owners but also bear rights as a community of the sex, i.e. women collectively have a right against the state against discriminatory laws and action. Therefore, it flows that women are capable of acquiring and exercising independent rights through their own self, as opposed to, e.g. women being the acquirer of rights and their husbands being the exerciser of these rights in case of married women. This foundational basis for CEDAW is why CEDAW is relevant today, not because of the legal romanticism that it could uplift women’s rights around the world.

            CEDAW, in today’s world, would also be a treaty that overlooks many contemporary rights of women that are accepted around the world, e.g. right to abortion, right to sexuality etc. CEDAW also fails to give justice to those women who are under “dual-oppression”, e.g. women who are lesbian and are Muslim, especially in a state whose government are representatives of the religious order. CEDAW, although applicable to personal laws, does not make this principle of non-discrimination in personal law non-derogable which has resulted in numerous reservations regarding the same, including India[2]. Needless to say, most discrimination occurs through personal laws, which became expressly visible in India through the much highlighted triple talaq issue. This therefore entails that CEDAW has created the big gap in this public-private divide in the rights of women subject to consideration in the international arena as well.

            To conclude, CEDAW, in today’s world can be seen as a relevant document to understand that women have been, and are being discriminated against in today’s world. CEDAW is the foundational framework from where developments can be made to include more issues of importance to gender justice including eventually acknowledging the fact that not only women, but transgenders are also victims of gross discrimination. I think that the CEDAW in a few years should be replaced by a more modern treaty reflecting the rights of women both individually and collectively, accepting the fact that when ‘law’ discriminates, it is a discrimination by the one from where women seek their solace. CEDAW is the beginning point of the path which entrusts states with the responsibility of affirmative action for women, and to not treat them as an object of sympathy and weakness instead of treating as equals.




[1]See reservations and declarations by Algeria, Bahrain, Bangladesh, Brunei Darussalam, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libyan Arab Jamahiriya, Malaysia, Oman, Saudi Arabia, Syrian Arab Republic, Tunisia, and United Arab Emirates available at last accessed Jan. 26, 2018.
[2] See note 1 for the reservations.

Friday, 17 November 2017

What is a nation?

What is a nation? Is a nation the territory it occupies? Is it the machinery it occupies? Is it the people who make up a nation? Is it the flag or symbol? Is it the presence of an army? What it is, it is definitely not something physical and therefore has to be an abstraction of the mind. There is one argument that can be used against all the questions posed here – fluidity. In the modern world, there is nothing static – borders, machinery, people, flags, symbols or the army. Nations come and nations go, empires rise and empires fall. There is nothing more fluid than concepts and living beings. People take birth, and people die.

The formation of a nation is based on certain principles – may be history, may be language, may be culture and heritage or may be just random divisions or political gameplay. There is no fixed criteria for the formation of nations, and hence there is no set criteria for self-determination as well. What is the right to self-determination? The expression, “the right to a future, and the right to have political, social and economic autonomy” is quite a vague expression and this leads to the wrong idea that there is a “right to a nation”. Nation-states are inherently abstract and fluid and therefore subject to abuse of political process for individual gains. The feeling of nationalism stems from freedom and autonomy of the political process – breathing the Indian air free from external influence is an essential part of the feeling of “Indian-ness”.

This feeling comes by inheritance through a feel of security for the economic, social and political future of the people that are the subjects of the government of a nation – that they have a voice in the policy that shapes their daily lives today. This had been achieved either through the bullets that were fired from guns or through means that were not as physically violent but conveyed the same message – “We want you gone.” Does this feeling of security constitute the most of nationalism that we see in the world today? Where else does this feeling of protectionism come from? The protection of cultural heritage and traditions are the primary reason for a nation to exist so that they are not wiped out by other external influences in the wake of easy governance and standardisation.


What then is a nation? What then is nationalism? It is the abstract superstructure to protect abstract substructures of an abstract society – abstractions over abstractions over abstractions. There is no physical existence of a nation, but only a perceived abstract existence.

Sunday, 18 June 2017

Design patents, utility patents and trade dress under US law

Design patents are the patents that have been granted for any non-functional invention for a device, for example, the inventive value of the aesthetic aspect of a device. Unlike copyrights, these are enforceable under a court of law and damages are paid for infringement of these patents, even if any person developed and manufactured the same design independent of the patent holder. These patents are granted to real innovative design which is not very obvious as a product design, along with novelty.

The granting or denying of such a patent has been well established by the “ordinary observer” test[1], where the observer is aware of prior art and can not identify the design present in front of him as violating the prior work of some other design made by some other person.

Design patents strictly have to adhere to the principle of non-functionality and functionality can not be included in design patents. To prove that there is no basis of functionality in what is invented for a device, makes it eligible as a candidate of design patent. So, only aesthetics and not any technological advancement can be patented under the purview of design patent.

Utility patents, on the other hand form the functional basis of a device, and unlike design patents, these never form the aesthetic part of the device. These patents are the safeguards of the inventor who invent the underlying technology in a device, like the wireless technology used in a device, which are not even visible to most ordinary men. Here the inventions are about the basic functionality of the device on which the device will run and perform.

Trade Dress is a part of trademark law. Covered by the Lanham Act, distinctiveness is a must to get a trade dress under Section 43. Distinctiveness so much as to be an ikon design in the market is required and mandatory. If a person makes a look alike using the signature feature of the product of the company, it violates its trade dress, as it confuses consumers as to the origin of the goods. This distinctiveness is elaborated as the following:

When we talk about distinctiveness, the distinctiveness must be such that at one glance of the product, any ordinary man would think of one product and one product only, which happens to originate from the company who applies for that particular trade dress. For example, the term ‘Cadbury’ is synonymous with ‘chocolate’, and the term ‘cadbury’ does not make any other person think twice as to what it might be – it refers to one and only one product in the market, or in this case a class of products in the market with different models or flavours.

Now, when we talk about design, distinctiveness must not be generic. Any company who sold their automobile with the name of ‘car’ cannot claim it as a trade dress even if it satisfies the above condition laid down as mandatory by the courts in the United States. For, it is absurd to have a trade dress for something so generic – it is a term used in general and never used to denote some specific product or method a product is used for.

Now, when we talk about design, the thing that brings us back to ‘design patents’ in this context is functionality again. This is a critical point for determining the validity of a design patent of a product. By speaking of functionality we plainly take the literal meaning of functionality, that is, whether the particular thing patented in the design patent serves for a particular functional purpose in the device or not. If it actually does serve a particular function, it goes beyond the purview of ‘design’ and becomes a ‘utility’ patent for that device, and in such circumstances, design patents are invalidated.

Coming to the term ‘functionality’, it is of two types –
·         Operable functionality is the way the product works – the functionality that consists of the core functions of the device and is a mandatory of the device.
Aesthetic functionality, on the other hand, forms a non-essential part of the core functions of the device. This is merely to please the eyes – like the aluminium lining coming in newer model phones today. They serve no purpose in the functioning of the device but make the device aesthetically pleasing to look at.

This functionality rule is therefore a very important aspect of the determination of the validity of design patents in any intellectual property rights case that whether it is functional or not to be called as a design patent. And what means by the word ‘functionality’ and what comes under the purview of the same has been already discussed and elaborated above.



[1]Formulated in Gorham Co. v. White 81 U.S. 511 (1871)

Friday, 10 March 2017

None of the above: Killing democracy

Elections will always be quite the topic in India. When we speak of the topic ‘NOTA’, or ‘None of the above’, we refer to democracy and its fundamental principles and one generally leans towards it being a huge boon to democracy. Before we even go into that debate, let us ask ourselves, how many Indians have a clear concept of what democracy is? Well, very few to be precise. With that in mind, let us first aim to look at what democracy is, so the readers need not have a single speck of doubt as to why arguments are placed on NOTA being a regress or progress in the first place.
Now, we need not go into the details of democracy and how it came to place, for that would be out of scope and off topic for the post. Let us have a look into the fundamental principles that govern democracy and the concept. First up, a definition of democracy simply does not exist. If you may ask why, well, that is because it is just a concept of the form of government and there is no consensus among the various political thinkers to define democracy and its vital parts. However, we are saved as there actually is a unanimous opinion between them as to which are the vital parts. If that was not there, how could we even call countries ‘democratic republics’ in the first place? The basic fundamental necessity of democracy is public participation, or public opinion as people would like to look at it. That means, every citizen, as duty bound to the constitution should necessarily vote in order to bring out the true essence of democracy – and this is where NOTA hits the core of democracy like a dagger plunging into the heart, in the hands of a cold-blooded beast, ruthless and vengeful. Another important key point of democracy is equality – everyone is equal and no one is above law; from the president to the homeless, everyone is considered equal human beings and that brings us to another concept we need to understand – the vote of every single citizen carries equal weight – no more, no less. From the Nobel laureates of India, to those who don’t have time enough to think about democracy as they have nothing to eat for the day, everyone gets one vote – and no single vote is more powerful than the other. You are nobody when you vote and the ocean of anonymity engulfs you – no black no white; no Bihari, no Punjabi; no rich no poor – only human; only a citizen of India. So, democracy is thus the form of government where real power lies in the people, and in an ideal case, the phrase ‘We, The People’, not ‘We, The People Who are Rich and Resourceful’. This is a very strong concept as the government is liable to be overthrown, protested against and all forms of opposition can be put forth legally to the government to ensure a responsible and accountable government – it is the public opinion that counts – ‘greatest happiness of the greatest number’ that ultimately prevails.
            Now that we have a brief idea of the essence of a democracy, let us look into the problems of democracy, and intertwine them with the concept of NOTA to make things clear about it being a progress or regress. Let us begin with ‘We, The People’. It all sounded so good in the last paragraph when the concept of power to the people was put forward – seemed like ‘We, The People’ had the power to create governments, the power to create a nation, the power to build, and to destroy; the power to decide the future and the power to create happiness rest in the hands of the people. But, before we dive too much into utopia, there is one question that comes into the mind, is majority opinion the best opinion? Even if it is, how much is the majority opinion reflected in the Indian system of representative democracy? To answer the first question would probably take some of the greatest political minds of the world, and there is no single answer available. But both a yes and no to the question lead to the second question, is the Indian system really the majority opinion? India has a first-past-the-post voting system, which is highly in contrast of the simple majority voting system. First-past-the-post, herein referred to as FPTP, is a voting system which is a concept one has to fully understand in order to fully realize the impact of NOTA. FPTP system provides for the filling of vacant seats in a legislature by the decreasing order of votes secured by the candidate. Let us take an example for this to understand, suppose, there are five candidates for an election – A, B, C, D and E, and there are three seats. Now, let us have a fictional result of A receiving 20% of votes, B receiving 14% of votes, C receiving 10% of votes, while D receives 7% and E receives 15%, and the rest 34% decide not to vote. Here, A, E and B shall fill up the vacant seats of the legislature, in spite of having less than 50% of total votes. A with 20% votes, E with 15% votes and B with 14% votes now represent the people and make laws. Do A, B and E really reflect the views people wanted? Where is the majority opinion in this government? Democracy is not seen in its pure form in any FPTP system in the world. Now, let us come to something unnoticed - the votes received by C and D. These are called wasted votes – and the wasted votes also include the extra 4% of votes A had after winning – for he only required 16%. Concepts like gerrymandering come up with the FPTP system, but that again, unfortunately would lie out of scope. Focusing on NOTA here, we see that the 34% who chose not to vote, are already exercising their right not to vote that comes along the right to vote. Coming to think of it, the right to choose none of the candidates existed in Section 49(O) of the Representation of People Act already, just that it was available as a form which had to be submitted to the electoral officer. The advent of NOTA, has given a huge blow to democracy under the belt. For, what we see here is the encouragement of not choosing a candidate – the equivalent of not voting at all. Whether you vote or not, a candidate is going to be selected even if he gets 1% and the rest 99% goes for NOTA. There is no provision for re-election if NOTA exceeds the percentage of votes a winning candidate has got. In the present Indian scenario, very few people care about politics being busy with their own focus on themselves, and not the country. NOTA was just the thing they needed; and the politicians needed. The gap between the general people and the field of politics just got wider, and it is not closing anytime soon. From a thin line, now it has become a broad gap and the arena of politics is degrading at a rapid pace every day. Instead of encouraging people to engage in politics, to think about the nation and its policies, to influence the government, to build a better nation, the Indian nation is more keen on keeping most people out of thinking about the government and enabling them to not participate at all – one less headache for them, one less headache for the political parties. If you think NOTA is going to deter politicians to be responsible, think again. Then there’s another aspect to look into it, will anyone really stand in the sun waiting for hours just to tell the nation that they do not have an opinion. NOTA was the easy way out for most people, but simply sitting and not going to vote is an easier option. Even the Supreme Court has stated “Eventually, voters’ participation explains the strength of democracy. Lesser voter participation is rejection of commitment to democracy slowly but definitely, whereas larger participation is better for democracy[1]”. While it is true that some voters may actually be encouraged to participate in voting, how does their coming to vote change the result of voting? The ultimate result of the vote is not going to change. NOTA provides for discouraging of democracy and encouraging of ignorance to nation politics which is already taking its toll on India heavily.




[1] Venkatesan, J., NOTA will curb impersonation: court, available at http://www.thehindu.com/todays-paper/tp-national/nota-will-curb-impersonation-court/article5177611.ece

Sunday, 6 November 2016

Kashmir: A settled unsettled dispute?

Kashmir has been in the news for a long time due to allegations of illegal occupation from both India and Pakistan and comprises one of the longest unsettled international disputes in history. I felt there requires to be clarity on the issue of what has actually happened in the past and how we arrived at where we are now. To understand the legality of the dispute one needs to consider various factors and most importantly, the United Nations Security Council Resolution 47. But before that, let us dive into history to see what caused the dispute in the first place.

Maharaja Hari Singh, then Kashmir’s erstwhile ruler had an option to remain independent or go with any of the two countries that were formed during the Independence from the British. Even before there was a decision in that regard Kashmir had witnessed armed violence and blocking of essential supplies in the Pakistani Punjab area. The forced displacement of Sikhs and Hindus from Punjab were already in motion before Kashmir had joined India. This led into religious conflict eventually and many Muslim coup d’etats were witnessed leading to the formation of an ‘Azad Kashmir’. Faced with no basic supplies and an overwhelming amount of armed violence, Kashmir willingly and legally acceded to India as can be seen from Arts. III and IV of the Jammu and Kashmir Constitution. India had sent its military to control the insurgency and worsening situation in Kashmir.

After the first Indo-Pak war in 1947, where Pakistan supported and supplied arms to insurgent groups, India expressed willingness to refer the dispute to the UN Security Council mediation under Art. 35 for maintenance of international peace and security. It is thus the fruit of this that UN Security Council Resolution 47 was adopted. Resolution 47 can be studied simply and was a three-step resolution to be precise if one has a clear reading of Part A of the Resolution. Firstly, it required the Pakistan Government to withdraw any Pakistani nationals not ordinarily resident in the State, including armed forces and tribesmen and stop providing material aid to the belligerent groups in the State. It is after this condition was satisfied that the Indian government was required to reduce the number of armed forces in the State but keep such forces so as to maintain the law and order of the State. India, was however entitled to take measures for the protection of minority groups in the State, namely the non-Muslims who had by then, already been forcefully displaced by the belligerent groups.

The third and most extensive condition was that there required to be held a plebiscite after the satisfaction of the two pre-conditions to determine whether Kashmir would accede to India or Pakistan. Unfortunately, the first condition was never met and Pakistan refused to not aid belligerent groups in hampering law and order and neither did they remove a single member of the army from Kashmir. Subsequently, Pakistan illegally ceded 5,180 sq. Km. in the Shaksgam valley to China via the 1963 China-Pakistan Border Agreement. Further on, in 1990, there was what was known as ‘ethnic cleansing’ in the Kashmir valley when all the Kashmiri Pundits were forced to flee their homeland. Thus, prima facie, it appears that not only has Pakistan not abided by the resolution, but gone against its whole letter and spirit. The argument that a Muslim-majority princely State should mandatorily join Pakistan is a bad argument since if religion was the sole basis of the divide, the Hindu-majority princely State of Umerkot should have been offered to India after it acceded to Pakistan in lieu of Kashmir.

India had long agreed for a plebiscite since the time of Jawaharlal Nehru, but Jinnah was fearful of losing territory and hence asked for the plebiscite to be conducted by the Governor Generals instead of the United Nations. It is unfortunately Pakistan that has blocked the right to self-determination of the Kashmiris by blocking Resolution 47. The use of force is considered illegal even in case of self-determination under Art. 2(4) of the UN Charter. However, the question of self-determination was also settled on 6th February 1954 when the freshly elected Jammu and Kashmir Legislative Assembly unanimously ratified Kashmir’s accession to India.

Sunday, 31 July 2016

The changing legal order

Hello there! I’ll be talking today continuing the broad theme of what I have said in the earlier post. Today I tell you why it is expensive to be poor.

Well, it should not come as a surprise that inequality in the world is increasing and that the top 75 people in the world own more than the next 3.6 billion people[1]. In today’s world order, most of the things are determined by economic forces including lawmaking, social status and unsurprisingly, financial benefits. Today’s hero is not the one with intellectual prowess but the one with economic prowess.

It is a sad state of affairs unfortunately, that money commands obedience from the public. It inevitably follows that political power flows from economic power. Laws are lobbied for by the wealthy to be in their favour, they can afford to spend to save, they can afford to jump the queue, they can afford to buy the system.

This world is very cruel to the poor, and it does not reward sacrifice, or talent, or even love. The world rewards those who kneel down obediently before the economically and politically powerful – those who surrender their lives to the almighty all-powerful neo-gods of the present who can control your lives in more ways than you can imagine. To be told what to feel, what to think, what to wear, what to do in private, what to speak by these all-powerful is now a reality. The legal system now has more control over its subjects than it has ever did in history. Even more than the great rulers and autocratic monarchs in their time. Kindly allow me two minutes of your time to present to you a classic paragraph from Sir Edward Coke:

[…] a man’s house is his castle. […] The poorest man may, in his cottage, bid defiance to all the forces of the crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter; but the king of England cannot enter! All his force dare not cross the threshold of the ruined tenement.”

When it comes to today, at most this can be called legal romanticism. This presents an ideal which today’s generation has never witnessed. The transition of society from being ‘human’ to being ‘mechanical’ is inevitable where only a small group of the population seeks to control the lives and destiny of others. Huxley’s ‘Brave New World’ might soon be a reality.

To ask again who is to be blamed for this? One need not look at anyone else to seek the root cause of the problems. It is you who has caused this impending doom that has befallen humanity. Systems of government fall and rise but human mentality stay the same. For those who say war or a bloodshed revolution is the solution, I pity them. War and bloodshed has never brought any good to humanity for people die – the good die and the bad die. Bad deeds eventually go away like the good deeds. The circle of good and bad continues.

Am I suggesting humanity will self-destruct? With a war, maybe. But with what continues, society will drastically change towards the picture that Huxley had painted for us long ago. A great visionary indeed! He could imagine today when Sir Edward Coke could say such great things of the erstwhile legal order. I would end with a beautiful quote from Charles Evans Hughes:

“No greater mistake can be made than to think that our institutions are fixed or may not be changed for the worse. […] Increasing prosperity tends to breed indifference and to corrupt moral soundness. Glaring inequalities in condition create discontent and strain the democratic relation. The vicious are the willing, and the ignorant are unconscious instruments of political artifice. Selfishness and demagoguery take advantage of liberty. The selfish hand constantly seeks to control government, and every increase of governmental power, even to meet just needs, furnishes opportunity for abuse and stimulates the effort to bend it to improper uses [...] The peril of this Nation is not in any foreign foe! We, the people, are its power, its peril, and its hope!”





[1] Treanor, J. (2015). Half of world's wealth now in hands of 1% of population – report. [online] the Guardian. Available at: https://www.theguardian.com/money/2015/oct/13/half-world-wealth-in-hands-population-inequality-report [Accessed 31 Jul. 2016].

Tuesday, 24 May 2016

There's a little problem with democracy and power

I write after long gaps, yes. I agree to that. Law school takes its toll on people. I’d also point out the fact that I write on certain important issues that might sting people, cause disagreements to my views and the like. That is how society works – that is how democracy works. Nah, wrong. That is how a democracy is supposed to work. There is a reason there’s that emphasis on that ‘supposed to work’ part. Today, I write about democracy.

Today’s democracy is a distorted democracy – it is not a very flawless form of power-check on the powerful. We associate ‘authority’ and ‘power’ to the modern State than we associate ‘co-operation’ and ‘development’. Most States are often mostly associated with police and militia than with the welfare of its people. Most people would agree, the phrase, “Tu jaanta hai mera baap kaun hai?” (Do you know who my father is?) is a commonly used phrase that explains this entire concept. Those in power, use it for various different purposes including essentially suppressing other’s powers.

The powerful often forget that this power does not belong to them. It is held, at least in my opinion, in public trust. This power to decide the fate of millions of people is not a right, but a grace conferred upon him by those millions. India has a pretty bad rank in the rule of law index, especially in the field of legislative corruption[1], pertaining to legislators, and it is rightly so. Legislators more often than not, deem the power to be a right rather than a grace, they deem it to be absolute rather than held in public trust.

The democracy of today has gone wrong somewhere – it has lost the way and has been derailed from its goal. Today’s democracy is a ‘democratic dictatorship’. Those elected to power neither speak for the majority view nor hold the office in public trust. A legislator hardly ever gets 40% of the vote, often getting elected with 20% of the votes. Thus, ignoring the voice of the other 80%, decisions are made that changes the lives of millions of people. The subjects neither have access to decisions and can hardly ever influence any decision. Any form of protest is criminalized and this brings us again back to the relationship of police and State. It is more often than not, any form of protest against the State is tackled with tear gas and rubber bullets. How, in the world is this a participatory democracy? How is this not a dictatorship of a handful of people?

An ’ignorant democracy’ has made this possible. Those who rise to power, are seldom judged on merits. Selfish gains of people who vote have crumbled down the foundational pillars of democracy. A ‘participatory democracy’ had presumed people would know how to choose what is in the interest of the nation – but that assumption was wrong. People vote not for people who will look after the interest of the nation, but for those who will give them the most benefits when elected. Corporations look after their economic benefits, ordinary citizens look after reduction of income tax and other taxes and so on. It is the personal interest and not national interest that triumphs the other. So, ordinarily, legislators are not exempt from this addiction of personal interest. If they are standing for the elections, it is more out of personal interest of power than out of national interest of serving the nation.


So, people, please come out of your palace of illusions, and see what you have done – what the sacrosanct ‘we the people’ has been into by putting selfish gains first.

[1] You can access the data at http://data.worldjusticeproject.org/#/groups/IND

Friday, 15 January 2016

What is postmodernist jurisprudence?

Postmodernist jurisprudence often runs parallel to critical legal theory. The essence of postmodernism is 'deconstruction' and 'skepticism'. Additionally, postmodern legal theorists are also against 'structuralism'. Critical legal theory, as we know it, is a repudiation of the natural order of things, for example:
  1. Repudiation of patriarchy - Feminist Jurisprudence
  2. Repudiation of the concept of race - Critical Race Theory
  3. Repudiation of the free market - Critical Legal Theory
  4. Repudiation of meta-narratives - Postmodern Legal Theory
The basic concepts of critical legal theory lie herein that:
  • Law reproduces political & economic power (Law is decided by politics and money)
  • Law is a spurious legitimacy
  • Law is not distinctive and discreet
  • Fictions and illusions are foundations of legal paradigm
To take up one of the postmodern theorists, Jean Francois Lyotard, would serve a good purpose here. To him, "Postmodernism is incredibility towards metanarratives." 'Reification' of Freudian hegemonic consciousness, Hegel's transcendental idealism cannot possibly be true was a core concept in this theory. He emphasized that real-world issues become more 'exteriorized' from its knowers in the form of automatic calculation and informal storage and retrieval of the information. In his sense, he says, these become 'data' - separated from context, pre-requisites or other idealism.
To Lyotard, as disciplines become more and more specialized, more and more developed in search of precision and specificity, there ceases to be a general universal unity among these. Further interesting is his concept of 'metanarrative', which says it is a narrative about narratives which offers a societal legitimization through an anticipated master idea. It is indeterminate in nature. There are three types of metanarratives:
  1. NINO = Normative from normative (Normative In, Normative Out)
  2. DINO = Normative from descriptive (Descriptive In, Normative Out)
  3. DIDO = Descriptive from Descriptive (Descriptive In, Descriptive Out)
To go into the details of these would be an unending process in itself. To see more, please refer to the book The Planning Theory of Law.
His main theory is that, now, in the modern world, we are not controlled by 'extra-linguistic value paradigms' that define ultimate purpose and universality of meaning, but by mechanically automated responses to 'language games'. He opposes universality, generality and consensus and seeks to replace the metanarratives by localized narratives.
Postmodern legal theory is a very vast and diverse subject, but its very essence lies in what I have simplified for you to understand.

Tuesday, 27 October 2015

Of good virtue, Aristotle and Rawls

Today I write after a long time. Today I write about something I love explaining something I hate.

To begin with, this shall not be a long post though, only thoughtful. I deal with two great jurists today – John Rawls and the mighty Aristotle.

As Rawls has envisioned a society from the egalitarian perspective, and stated that no one should get the advantage of the inherent ‘unfairness’ nature provides them with, i.e. the edge of extra intelligence, beauty etc. over other less-fortuned ones, he has earned many praises and criticisms. Let us first see why he has earned the praise from me. To start with, man inherently wants all of us to be the same. Performing better than others seldom earns you praise, while it does earn you lots of jealousy and ill-wish (more on what Aristotle said on this later). This is not the absolute generalization though – more of a special case – the mediocre society. In a society where there is hardly any disparity to begin with, there is less scope of ‘breaking free’ from the norms. To not conform to mediocrity is a sin. The fact that being ‘better’ never earns goodwill is more suitable with Rawls’ theory, who then solves the problem by his egalitarian concept and the difference principle in his Justice as Fairness.


Shifting our focus to Aristotle now, we get to see why such a society hinders progress, and is more often than not, inherently wrong. Aristotle says justice is ‘what we deserve’. To honour good virtues is the norm. From this perspective, is the Rawls’ society ‘just’ per se? Well, I don’t think so. I’ll spare you the horror of further diving into teleological reasoning, but a society which does not honour good virtue and talent is more machine than human, it has no more heart than a piece of rock by the ocean has, it has no more feelings than the fox hunting the deer. Competitiveness in a meritocracy is okay, but legitimate expectations of mediocrity is not. The shift from Aristotle towards rights-based theories have never been better. There is nothing pro-human than Aristotle’s theory, and well, I accept ‘justice is what you deserve’ has its own faults and practical implications and is more idealism than realism. It comes into the category of legal romanticism because it was made to do so – Aristotle’s ideal is, in most aspects, better than John Rawl’s ideal.

Friday, 15 May 2015

The new Juvenile Justice Act, 2014 - A legislative analysis - Boon or Bane?

Introduction

            The Juvenile Justice Bill, 2014 had been brought in as an aftermath of the Nirbhaya rape case[1] that happened in 2013. This case was one of moral turpitude, which set out a clear dilemma – to protect or not to protect the children? I had briefly elaborated my issue and stand in an earlier post on this blog, titled 'The Issue of Juvenile Justice'. The children, on whom society looked at with sympathetic eyes were condemned for the acts of the heinous crimes that shook India. Emotional beings, as we are, we sought to change the law and blamed the existing law for the inadequate punishment that was given to the juvenile offenders who had perpetrated the crime. At the spur of the moment, that seemed a logical thing to do – put the children who commit heinous offences behind bars. Now, that the book has been reopened, let us ask ourselves with a calm mind, ‘Is that the right thing to do?’ Is this what the world has come to? Killing children with the sanction and legal authority of the State is certainly not something that comes to the mind when we ponder over the term, ‘civilization’, or ‘civilized society’. Such barbaric thoughts, have been condemned in the past and should continue to be condemned through the future.

Important provisions of the Bill

            There are basically some main features of the Bill that are essential to be highlighted in the analysis:
1.      For heinous offences, i.e. offences with punishment more than 7 years, children in the age group of 16-18 will be tried as adults
2.      For serious offences, i.e. offences with punishment between 3 years to 7 years, children in the age group of 16-18 years will be tried as an adult only when they are apprehended after the age of 21 years
3.      For all other cases, there is a maximum punishment of three years of institutional care
4.      A preliminary inquiry will be held for serious offences when the juvenile in conflict with law is apprehended before the age of 21 years
5.      A special Sessions Court, the Child Court will determine the questions as to the quantum of punishment and whether he will be sent to institutional care, counselling recommendations and the question of whether to try him as an adult

The Juvenile Justice Bill, 2014 – Key Issues

            The Juvenile Justice Bill, 2014, though voices the opinions of the people in a way that they had demanded, the Bill contains some key issues that need to be addressed before this comes into force as an Act. To begin with, this Act is based on an emotional background and was born and ignited out of an uproar involving a question of moral turpitude. Let us reiterate that, sometimes, majority opinion is not the correct opinion and the affairs of the State is best left with the highly competent professionals who make the law. This Bill of 2014 seeks to undo all the good law that was in force and replace an established international system with a faulty indigenous system that is based on principles of retribution and vengeance which been long condemned by law.

Non-conformity to the UN Convention on the Rights of the Child

            It is ironical that the Bill, in its statement of Objects and Reasons, states the following:
AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to be adhered to by all State parties in securing the best interest of the child;
AND WHEREAS, it is expedient to re-enact the Juvenile Justice (Care and Protection of Children) Act, 2000 to make comprehensive provisions for children alleged and found to be in conflict with law and children in need of care and protection, taking into consideration the standards prescribed in the Convention on the Rights of the Child …”
            It is pertinent to note that the UNCRC[2] defines a ‘child’ as any human being below the age of eighteen years and states in Article 37(a):
… Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age
            The Standing Committee Report[3] has arrived at the same finding that the Statements of Objects and Reasons of the Bill is in conflict with the substance of the Bill, which again violates an important convention which India had ratified. The Juvenile Justice (Care and Protection) Act of 2000, had been promulgated specifically for the purpose of implementing the UNCRC in the Indian context – to guard and protect the children, for it is the duty of the State to do so. This Bill seems to ignore that duty and not only violates the United Nations Convention on the Rights of the Child, but is a complete blow to humanity in itself lawfully permitting children to be tried in the same courts as professional criminals, lawfully permitting children to be behind bars with those offenders who are hardened criminals. The Bill, however, only allows life imprisonment with a possibility of release, bypassing a possible violation of Article 37(a), but still, however, violating the definition and UNCRC General Comment 10.

Constitutional Validity

            This Bill seems not to only violate an important international convention, but in all probability violates the provisions of the Constitution of India itself. The provisions of the Bill in question are the classification of heinous offences and serious offences in clauses 7 and 16(1) of the Bill, as discussed earlier in the legislative brief.
            Under Article 15(3) of the Constitution of India[4], the State is obligated and forever duty bound to protect the children and women of the nation, and to do so, it may enact special laws to achieve the objective. This law seems to contradict the very spirit and essence of Article 15(3) when the State seeks to enact laws to do away with the concept of children altogether in pari material with the concept of majority and prescribe stringent punishments for children as equivalent to adults.
            Now, when we come to Article 14 of the constitution[5], which prescribes equality of all before law, we find a serious violation here. As discussed earlier in the legislative brief, the discrimination is not only on the basis of age, but on the basis of apprehension. It is very difficult to comprehend a social purpose behind this arbitrary and fanciful piece of legislation. To understand its implications, let us take some examples:
            A, and his friend B, both 16 years of age commit an offence punishable with an imprisonment of 5 years. A is apprehended after a month, and B is apprehended when he is 22 years of age. In this case, A can be sentenced to a maximum punishment of three years institutional care and B, on the other hand, will receive a punishment of a maximum of  5 years’ imprisonment.
            This not only violates the provision of equality, but ropes in Article 20(1) of the Constitution[6] which says that no person can be punished more than the punishment prescribed for the offence when it was committed. For the same offence, a different punishment based on the date of apprehension means a violation of the right to equality and a violation of the right under Article 20.
            The other provision whose spirit is violated is Article 21 which ensures right to life and liberty[7]. These life and liberty of a person cannot be curbed except according to procedure established by law. The phrase of ‘procedure established by law’ meant a procedure that had legal sanction, without regard to the principles of natural justice. Any law duly enacted could fit within the framework of ‘procedure established by law’, which was changed in the Maneka Gandhi case[8] whereupon it became synonymous with ‘due process of law’ used in the United States, which means a process which is fair, just and reasonable and not fanciful, arbitrary, oppressive and capricious. This Bill seems, in all probability, to have violated the spirit and interpretation of Article 21 by enacting laws that are highly discriminatory, and even more on arbitrary grounds without a social cause or social wrong being addressed.

Arbitrary punishments

            The punishments have not been decided on a concrete foundation and have the sense of arbitrariness as earlier discussed creeping over into them. For example, the punishment for selling a child is five years, and giving them narcotic substances is seven years. This really does not make sense to anyone of the legal fraternity, or even laymen for I suppose, no one would agree that giving a child marijuana is a more heinous offence than selling them for purposes which cannot be imagined by the sane.

Conclusion

            In the case of Abdul Mannan And Ors. v. State Of West Bengal[9], the Supreme Court of India has reiterated the objective of the Act of 2000, stating, “The object of the Juvenile Justice Act is to reform and rehabilitate the juvenile offenders as useful citizens in the society.” The Rajasthan High Court has again stated in Chetan and Anr. v. State of Rajasthan[10] that “One of the aims of the Juvenile Justice Act is to reform the juvenile delinquent so that he is prevented from graduating to being a hardened criminal.
            With the Hon'ble Courts taking the view as above, and the same being the duty of the legislature, this Bill is unwarranted, putting the working age population behind bars and making them hardened criminals, left to the mercy of being moulded by all seasoned criminals in their company. While India is proudly advertising its demographic dividend, the act of putting the working group into the hands of criminals is an act which should be condemned.
            Instead of putting them behind bars, it is better to put them in institutional care till the age of 21 years, not 18, as suggested by the Standing Committee. Instead of ostracizing them and making them a burden on the State, it is better to make them an asset to the nation by giving them vocational training, and putting them in care till the age of 21. By this process, the ones who would, in future, be a threat to the society, become a valuable possession of the nation.




[1] See State Through Reference and ors. v. Ram Singh and ors., 2014 Indlaw DEL 819
[2] Full text of the UNCRC can be accessed from http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
[3] The Juvenile Justice (Care and Protection of Children) Bill, 2014, Standing Committee on Human Resource Development, February 25, 2015 available at http://www.prsindia.org/uploads/media/Juvenile%20Justice/SC%20report-%20Juvenile%20justice.pdf last accessed 06:09 UTC on 11-05-15
[4] Article 15(3) states: “Nothing in this article shall prevent the State from making any special provision for women and children.”
[5] Article 14 states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
[6] Article 20(1) states: “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”
[7] Article 21 states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
[8] Maneka Gandhi v. Union of India AIR 1978 SC 597
[9] Abdul Mannan And Ors. v. State Of West Bengal AIR 1996 SC 905
[10] Chetan and Anr. v. State of Rajasthan 2011 Indlaw RAJ 220

Tuesday, 30 December 2014

Is Net Neutrality an issue in India?

What is net neutrality?
To start with a very basic definition, ‘Net neutrality is the equality of all data traffic in the internet by a service provider’. To elucidate, data coming from different sources of the internet is not discriminated, no matter what it contains, where it is going or who sent it – all data packets are treated equally.
To ponder over it more, the application of this idea lies herein that, internet service providers cannot favour certain different websites and/or throttle traffic to other sites. Providing differential speeds on the same framework for different payments also constitutes a violation of net neutrality for that is then, again, discrimination of data.
How is Airtel violating net neutrality?
Airtel, has been the centre of the net neutrality controversy in India ever since it advocated the same in the Mobile World Congress, Barcelona in 2012. Since then, the Google partnership in 2013 for free access has stirred the controversy, with TRAI taking a diplomatic stance on the same. Google, had however advocated a neutral net strongly endorsing the Federal Communications Commission (FCC)’s ‘Open Internet’ policy. Now, however, Airtel has gone a step further to exclude VoIP services from its usual data plans and charging extra for the same, later pulling it off due to impending TRAI consultation. Airtel, and other operators are advocating charging sites like YouTube, Twitter for the revenue they are generating through the ISPs, whilst inputting a meagre capital into the market; the ISPs rely on the argument that the sites are generating revenue because the ISPs are putting in capital towards the enhancement of network infrastructure whilst getting a disproportionate profit – the profit goes to the content providers. So, they demanded a share of the revenue.
Situation of law relating to net neutrality
Unlike the USA, India has an outright absence of law on the subject. USA provides the FCC to regulate the broadband services via Section 706 of the Telecommunications Act, 1996 while however, their original ‘Open Internet’ rules had been declared ultra vires by the Supreme Court pursuant to the decision in Verizon v. FCC. In India, even though there is still no existing law or TRAI regulations on the matter, there are some important points to consider. Firstly, Bharti Airtel Ltd. is a consumer service provider and Bharti Infratel Ltd. is the telecom infrastructure provider, so the former should not concern itself with network infrastructure revenues in the first place. Secondly, Bharti Airtel, being a data provider, has a Universal Access Services License, which includes voice services and the internet – what is done over the internet is not their concern, whether VoIP or social networking. This unwarranted use of ‘deep packet inspection’ then again brings in the threat of privacy of data into the picture – why should Airtel concern itself with what you are seeing and how you are seeing? This discrimination of data and throttling of data is in a violation of the free speech enshrined in Article 19 of the Indian Constitution. Pursuant to the decision in Unnikrishnan v. State of Andhra Pradesh, it is possible to subject private juristic persons to within constitutional purview without including them in the definition of State as in Article 12 if they perform a public duty, which maintenance of communications surely is. The ISPs should not be the gatekeepers of the internet and decide who you say what you say by blocking your lawful site – that is a fundamental blow to the foundation of how companies like Google, Facebook and Twitter came into being; startups will be destroyed having to lobby for different ISPs, like starting a new channel on TV with the same effect that charging a share of the revenue of the content providers will bring.

Airtel reported a 73.8% surge in mobile data revenue to ₹1,805 crore this FY, up from last year – indicating they are growing at a rate more than enough with net neutrality being in force without having to go all unethical.

Sunday, 26 October 2014

Goddess Durga!

Well, here comes a post after a long time. I'll keep it relatively short as I hardly have much to write. However, the length does not imply importance; a one line post in this blog is also of utmost significance in my heart.

Now, this is the time of the year we Bengalis celebrate the most - Durga Pujo time! :D

Now while this time is a time to celebrate, rejoice and relax for all, it carries along with a great significance and a message from time immemorial. This time is the time of Goddess Durga. Durga has been described as  the Annihilator of all evil, the slayer of 'Mahishashur', the king of the Asuras. Durga is the 'Mahishashurmardini', 'Viswavinodini', 'Paramashakti' - the greatest of all goddesses. Now what do even all these mean? Well, straight to the point, the day of Vijayadashami celebrates Durga Maa's victory over Mahishashur, firmly advocating that no matter how much evil prevails, good has the last laugh.

Well, leaving the mythology associated aside, let us notice, Bengal mainly worships women goddesses - Durga, who is the main goddess and hence has the biggest festival of the year as her puja, Lakshmi, Saraswati and the like. What the Durga Pujo tradition implies is that women are supreme and the pillars of justice, conscience and good morality. It establishes the concept of 'Eternal Feminism' [1]. It speaks out loudly that the power of women cannot be altered by a group of men - no man, no government, and no system can suppress women. No matter how much valor a man has, or how much strength he has, a woman will always have to be his moral guardian. Women are the idols of modesty, purity, morality, delicacy, compliance and reticence - and this is the eternal truth. It is to be noted that while the virtues of men are public - strength, valor and the like, the virtues of women are private, and they serve as a moral guardian to ensure peace and security; to stand as the guardian angels of the city looking from way above what any man can - from a societal, moral and spiritual perspective.

I shall talk about one more thing here - Mahalaya. This is the reading of the 'Chandi' when Maa Durga descends to Earth. The Chandi is a very powerful and deep scripture and goes on to tell the story of Durga. The Chandi states about the two aspects of the feminine - a seductive aspect, and a motherly aspect. The latter is glorified in the scripture as depicting Durga as the mother goddess of all - the savior of mankind, the destroyer of all evil. She governs the cosmos and protects her children from evil just like a mother would. Coming to think of it, evil is everywhere - from the streets to the tall posh buildings one can see around. There is no place left for evil to spread. The promise of a world without evil is far from possible, and that is precisely what the scripture states. Durga Maa will be there watching you, like a guardian angel who will not let one small scratch fall on her little baby.

So, talk about women empowerment and Bengal is right there staring at you since mankind learnt to write. The reading of the Chandi reminds Bengal, and the world of that. Women are to be respected, if not because I tell you to, then because Durga Maa will be really really angry on you. And what does she do when she's angry? Yes, she kills evil emperors.


[1] Frances Nesbitt Oppel, Nietzsche On Gender: Beyond Man And Woman

Wednesday, 27 August 2014

The Issue of Juvenile Justice

Juvenile justice has been a hotly debated issue, at least with respect to India. The Indian masses have largely been portrayed to be not satisfied with the laws governing the juveniles.

Aims of Criminal Law

So, let us ask fist ourselves, what is criminal law? How is it different from civil law? Now, it is pertinent to note that the Indian Contract Act, 1872 assumes that a minor is incompetent to contract except for the case of basic necessities where he can be held liable to pay. In the context of criminal law, the fundamental question of criminal law arises as to what it seeks to achieve. Merely seeing the crime and not the offender's environment will lead to a judgment bas in society[1], even if that is what the society demands. The majority opinion may always not be the correct opinion. So it has been agreed upon by many that the crux of the difference between civil law and criminal law lies in the social condemnation the latter carries with it[2].

Reformation vs. Punishment

Reformation seeks to look into the offender more than the crime, and punishment, or imprisonment, looks at the crime without looking at the offender. While leaning on both the sides is dangerous and carries unforeseen consequences, But in my opinion, one should rely more on the former as in a tender age a child is more prone to believing what he is taught without questioning much of it. Reformation promises more good than punishment.
Justice that law gives is punishment; justice that love gives is surrender. 
- Mahatma Gandhi
So, what in my opinion should be done, is that, for all offences, a child might not be knowing the consequences of his act. For it seldom happens that one fine day while you're having breakfast, your mom will tell you, "My dear son, please do not rape women. It is bad.". It grows inherently as a moral conscience that watches over men when they drool on women.

Conclusion

To conclude, it is inevitable to state that juveniles should be protected under the law. One or two offenders should not be the reason for a hundred innocent to be imprisoned. Reformation looks into the root of all evil, to eradicate the reason behind the criminal behavior in society, and can promise us a better future than punitive justice. However, what needs to be looked into, is the question, "Can this child be reformed?"



1. Henry M. Hart Jr., The Aims of the Criminal Law, 23 Law and ContemporaryProblems 401-441 (Summer 1958), available at: http://scholarship.law.duke.edu/lcp/vol23/iss3/2
2. Ibid.

Search debadattabose.com

Powered by Blogger.

Popular Posts