Right to life and the ethics of euthanasia

It is believed across the globe that, God created this world, and the creation of life is assumed to be the most precious thing in the earth. It is immaterial, how advanced Science and technology we have, the secret behind the cause of life and death remains uncertain.

Well, legally speaking, every human being has got a right to life. In India, Article 21 of the Constitution guarantees Right to life and personal liberty to all Indian Citizens. By virtue of said Article of Indian Constitution, no person shall be deprived of his life or personal liberty except according to procedure established by law.

Further, by virtue of the provisions of Indian Penal Code, no one has got right to take away the life of another person, doing so is a punishable offence under the same Code. However, there are certain exceptions to the same.

In this context, let us have a look at the legal issues related to the right to life. One of such case is that of “Euthanasia” OR “Mercy Killing”. Euthanasia, was always been a topic of debate. Hope you all remember the Hrithik Roshan & Aishwarya Rai starter movie Guzaarish, where the issue of mercy killing was pictured.

The term “Euthanasia” is nothing but Mercy Killing. It is the practice of intentionally ending the life of a human being in order to relieve him/her from the pain and sufferings. As we know human beings life is not smooth always, and not all human beings die at peace. Sometimes, people go through extreme physical pain in their last days, and they see euthanasia as a compassionate way of ending such pain.

Different patients may ask for wilful Euthanasia to stay away from the shortcoming and loss of intellectual capacities that a few infections reason, and numerous vibe these wishes ought to be regarded.The increased significance given to individual autonomy in this century has been one of the reason for lateral thinking in the direction of legalising euthanasia.

As stated earlier, we all expect a happy and fruitful life. However, not all of us get the same. Many people end their life out of various frustrations in their life. However, it is presumed to be a sign of abnormality. The act of killing oneself is generally called as Suicide and if one ends his life with the help of authorities on his request is called “euthanasia” or “mercy killing”.

Normally those people who are suffering with terminal illness or who have become incapacitated and do not want to go through any sufferingrest of their life, and request OR file petition for “euthanasia” or “mercy killing”.

Euthanasia is a debatable issue, which comprehends the morals, values and beliefs of our society, and I am of the view that, the right to choose between live or die should not be a right allocated for bodied individuals of sound mind but to all human beings.

Controversy over the concept of euthanasia became significant with the recent developments in the European Countries viz. United Kingdom and Netherlands, were euthanasia was legalised OR allowed. Said incident triggered the debate across the world that, whether euthanasia shall be legalised OR not?

Not only in the West, even in India, euthanasia was a hot topic of debate. The best example is the Hindi movie, GuzaarishThough the Law Commission of India has recommended for legalising euthanasia, it is not possible with the existing legal system. i.e., by virtue of Section 300 of Indian Penal Code, 1860euthanasia is illegal. Because, there is a criminal intend on the part of the Doctor who execute euthanasia.

However, one may take a plea that, euthanasia was executed only after due consideration from the appropriate authority as well as the consent of the deceased himself, the Doctor can still be punishable under the provisions of Section 304 of the Indian Penal Code for the offence of culpable homicide not amounting to murder.

However, Supreme Court in its recent judgment in Aruna Shanbaug case broke new ground with respect to the concept of euthanasia. In the said case, apex court allowed passive euthanasia viz.,withdrawal of life support systems on patients who are brain dead or in a permanent vegetative state. However, Supreme Court made it clear in its judgement that; an active euthanasia shall continue to be a crime under the existing Indian legal system.

Online Shopping and Consumer Protection in India

Eira Mishra

Recent years have seen an exponential growth in the domain of online shopping in India. Several etailers have made available a magnanimous array of products at your mouse click. Consumers have increasingly taken to this trend as is evident from the growth this sector has witnessed. Comparing products and prices was never this convenient. This brings forth the query whether customers of online shopping are adequately protected under Indian law. A new medium brings with it new risks which need to be accounted for and addressed in national laws.

Misusing information for marketing purposes, fraudulent activities, information theft are only a few examples of the threats that consumers face every time they decide to go shopping online. Apart from these, there are several reported instances where the online retailer delivered damaged goods, wrong product or no product at all.

In 2014, the Government of India took notice ((Government to Amend Laws to Protect Online Shoppers, NDTV, December 12, 2014, available at http://www.ndtv.com/india-news/government-to-amend-laws-to-protect-online-shoppers-712140.))of the growing instances of fraud/cheating in e-commerce and initiated the process of amending the Consumer Protection Act, 1986 to incorporate provisions addressing the issue. They rejected the possibility of enacting a separate statute to deal with the problem and instead decided on amending the act itself. The new law was envisioned to include within its ambit not only vendors selling products online but also online marketplace providers such as Flipkart, Amazon or Jabong ((Deepshikha Sikarwar, Consumer Protection Act may get more teeth; new law may help you sue online retailers from your city, ET Bureau Oct 31, 2014, available at http://articles.economictimes.indiatimes.com/2014-10-31/news/55631261_1_new-law-flipkart-consumer-protection-act.)).

Jurisdictional Concerns

A court needs to have jurisdiction over the parties involved in the dispute, and also territorial jurisdiction over the matter. The determination of territorial jurisdiction becomes a tricky affair in case of online shopping due to the ubiquitous nature of the technological space in which it operates.

Under the current Act, a consumer can initiate legal action against a seller only at the place where the transaction was carried out. However, to account for online shopping, the government has proposed an amendment whereby ‘territory free’ legal action can be initiated against any etailer or online marketplace provider. This has been proposed by addition of explanation 2 to the definition of consumer under Section 2(1)[d] ((Explanation 2: For the purposes of this clause buying of goods, hiring/availing of services is inclusive of the transaction made through any mode, inclusive of but not limited to offline, online through electronic means, teleshopping, direct selling etc.))of the act which includes shopping through electronic means and teleshopping under its ambit.

Introduction of Mediation

The process of mediation has been proposed to be incorporated in the Consumer Protection Act, 1986 by insertion of Section 2(1)[ja] ((2(1)(ja)mediation’ means the process by which a mediator appointed by the National Forum or a State Forum or a District Forum, as the case may be, mediates the dispute between the parties to the complaint/ appeal by the application of the provisions of Chapter IV of the Consumer Protection Act, and in particular, by facilitating discussion between parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasizing that it is the parties’ own responsibility for making decisions which affect them.)). A mediator may be appointed by the National, State or District Forum to mediate the complaint or appeal between the parties as provided under Chapter IV of the Consumer Protection Act, particularly through:

  • Facilitation of discussion between parties directly or by communicating with each other through the mediator,
  • assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute; and emphasizing that it is the parties’ own responsibility for making decisions which affect them.

Exemption to Electronic Intermediary

The proposed amendment further introduces Section 2(1)(r) to the Act which states that an electronic intermediary shall not be said to have engaged in ‘unfair trade practice’ if it facilitates, and to the extent it facilitates, the manufacturer, trader or other persons who uses such electronic intermediary for advertising, selling or providing of goods or services. Thus, mere facilitation of trade online does not impose liability on an e-marketplace provider in case the trader indulges in unfair trade practises.

Conclusion

The online shopping business is only set to expand in the future. According to a recent report ((Available at http://www2.deloitte.com/content/dam/Deloitte/in/Documents/consumer-business/in-cb-online-retail-in-india-clicking-towards-growth-noexp.pdf)), India will account for one of the world’s largest middle class consumer market by 2017, an estimated aggregated consumer expenditure of US$60 billion. The proposed amendments aim to bring India’s consumer protection regime more in consonance with technological advancements occurring in the shopping space. These would reinforce consumers’ belief in the protection awarded and remove discrepancies when one wishes to initiate action against malpractices by online traders.

The proposed amendments can be accessed at the Official Website of Department of Consumer Affairs under the Ministry of Consumer Affairs, Food & Public Distribution

Shreya Singhal judgment and Internet Intermediaries in India

Eira Mishra

An analysis of the effect of Shreya Singhal judgment on Internet intermediaries in India

The Shreya Singhal judgment ((Shreya Singhal v. Union of India, WRIT PETITION (CRIMINAL) NO.167 OF 2012)), pronounced in March 2015, has been met with ambivalent reception on the stance of intermediary liability law in India. The first Public Interest Litigation (PIL) on the matter (with which several cases were subsequently joined) contested the constitutionality of Section 66A, 69A, 79 and 80 of the Information Technology Act, 2000 (hereinafter “the Act”) on the ground that these violate Articles 14, 19(1)(a) and 21 of the Constitution. Section 66A was plagued with several ambiguous terms like “grossly offensive”, “menacing character”, “annoyance”, “inconvenience”, “danger”, “insult”, “injury” and “ill will”. This section was held to assault the very soul of the freedom of expression guaranteed under Article 19(1)(a) and to not be saved by any of the reasonable restrictions under Article 19(2). It was consequently held unconstitutional. This decision was hailed as victory of freedom of speech and expression over draconian laws unfit for operation in a democracy.

The advent of internet has ushered in the need for law to constantly evolve with the new methods of communication and information dissemination growing every day. A critical question in this regard is the determination of liability of internet intermediaries. The other provisions of the Act contested were Section 69A, dealing with procedure for blocking of public access to websites and Section 79 which bestows immunity on intermediaries from liability in certain cases. The IT Act defines “intermediaries” ((Section 2(1)(w) of the Information Technology Act, 2000))to include telecom service providers, internet service providers, search engines, cyber cafes, etc. Any person or organisation facilitating storage or transmission of electronic records is included within the definition.

Clarification on Procedural Safeguards

Constitutionality of Section 69A of the IT Act was assailed on the basis that it did not provide for any pre-decisional hearing. The Supreme Court, on the other hand, has upheld the constitutional validity of the provision stating that ample safeguards akin to those laid down under Article 19(2) have been given under the section. These provide satisfactory guidance to authorities as to what content is liable to be blocked and to weed out misuse of the provisions. It further read pre-decisional hearing into the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 ((Hereinafter, the Blocking for Access Rules)), laid down under Section 69A (2) of the Act. This demolishes the prior regime of notice and take-down. Intermediaries usually complied with third-party notices even when the content was perfectly legitimate because they lacked the resources and the initiative to defend known/unknown originator’s content if litigation ensued. Provision of these clarifications is hailed as originators and intermediaries will now have a clear opportunity to make representation before the concerned committee and plead their case before their content is taken off the internet.

The apex court has read down these rules to mean that non-governmental agencies cannot easily force removal of content available on the internet. The government is conferred the responsibility to decide the lawfulness, or the lack of it, of the disputed content. Additionally, the Blocking for Access Rules have been read to mean that blocking order shall be provided to the intermediary in writing, stating reasons for issuing of the order. The intermediary has the right to appeal against the order in a writ petition under Article 226, contesting the reasons mentioned in it. This verdict will protect online content from being forcefully taken down due to indiscriminate notices against lawful content.

Rule 8 of the Blocking for Access Rules has been read to mean that pre-decisional hearing is granted not only to the intermediary but also to the originator of the content. The extension of opportunity to represent oneself advances accountability to the system set for blocking. However, this would require the Committee to locate and contact the originator, something which might not be strictly followed ((Chinmayi Arun, The Case of the Online Intermediary, THE HINDU, April 7, 2015, http://www.thehindu.com/opinion/op-ed/shreya-singhal-case-of-the-online-intermediary/article7074431.ece#comments)).  This sets a low threshold of accountability for the review committee. Mostly originators cannot be identified and intermediaries are not usually willing to appeal in a writ petition for anonymous person’s content.

The temporospatial extent of blocking orders is also burdened with ambiguities. There are no guidelines that state for how long and over what territory is the blocking order applicable. Another matter of concern is the confusion over frivolous complaints wherein no penalties have been imposed for false complaints and not rules discuss the recourse available to the intermediary to claim damages upon proof of vexatious complaints ((Jyoti Pandey, The Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India? CENTRE FOR INTERNET AND SOCIETY, April 11, 2015, http://cis-india.org/internet-governance/blog/sc-judgment-in- shreya-singhal-what-it-means-for-intermediary-liability)).

Need for Transparency

The blocking procedure has still not been lit up with transparency. Rule 16 of the Blocking of Access Rules states that strict confidentiality shall be maintained with respect to complaints received and blocking orders passed. This is an “insidious form of censorship” and results in chilling effect of freedom of speech and expression. The court reiterates that an “informed citizenry” and a “culture of open dialogue” are integral to functioning of our democracy. Confidentiality is criticized because it abridges an originator and reader’s right to know that their content has been blocked by a government notice. In fact, many academics believe that blocked web content must carry a notice which lays down the reason behind the order and the authority issuing the order.

Keeping up with technology is quintessential. Creation of a digital version ((Supra note 4))of the traditional government notices is one of the ways to keep the public informed of government action taken and to provide affected persons with an opportunity to contest the ban. This would bring our procedure at par with due process.

Another way for public scrutiny of government blocking orders would involve imposing of a requirement on the central government to publish an annual report of online content blocked with reasons for the action. This would advance the cause of transparency and decrease arbitrariness on part of government.

Safe Harbour and Intermediaries

Section 79 of the Act attempts to create a “safe harbor” for intermediaries. It exempts intermediaries from liability for content hosted by them on conditions laid down under Sections 79(2) and 79(3). The intermediary is required to publish rules and regulations of usage, privacy policy and a user agreement for users of computer to abide by, as per conditions stated in Rule 3 of the Information Technology (Intermediaries guidelines) Rules, 2011. This requirement of “due diligence” under the Act has created a hostile working environment whereby arbitrary take-down notices are sent to intermediaries. As per the rules, intermediaries may decline to comply with the notice but they usually submit to these to avoid prolonged and costly litigation. However, prior research ((Rishabh Dara, Intermediary Liability in India: Chilling Effects on Free Expression on the Internet, CENTRE FOR INTERNET AND SOCIETY, April 27, 2012, http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on- internet))has shown that intermediaries prefer overbroad blocking over the risk of litigation.

The aforementioned process gives rise to privatization of censorship which is contrary to the very essence of the right to free speech and expression guaranteed by Article 19(1)(a). The liability imposed on platform companies for regulation of online activities of its users’ amounts to censorship-by-proxy which endangers both free speech and innovation. Thus Section 79, along with the Intermediaries Guidelines, 2011 was challenged in this case ((See also: Mouthshut.com v. Union of India, WRIT PETITION (CIVIL) NO. 217 OF 2013)). The court read down Section 79(3)(b) of the Act and Rule 3(4) of the Intermediaries Guidelines, 2011 to mean that whereas previously the intermediaries had to suo motu decide the lawfulness of the content, now it is essential to require passage of an actual court order or government notification for initiating a take-down.

Another pertinent issue is at the centre of this argument. Even though an expectation that intermediaries would monitor and regulate all content that flows though their channels is flawed, yet some level of cooperation is essential to ensure that harmful speech, such as child pornography, is expeditiously removed from the host site.

Conclusion

The Shreya Singhal judgment has granted a much needed sigh of relief on content originators, intermediaries and netizens in general. Intermediaries’ legal liabilities have been substantially lowered due to clarifications provided by the Supreme Court. This would act as a catalyst for businesses which are primarily based on the internet.

Upholding validity of Section 79 after reading down 79(3)(b) implies that intermediaries are not completely off the liability radar. They can harness this opportunity to build reliance on their user guidelines by issuing simple take-down policies for content which amounts to harassment, bullying or other misdemeanors, thereby minimizing the need to resort to judicial remedies.

Food safety and the impact of Food Safety and Standards Act, 2006

Sandeep M Nandakumar

A debate on food safety in India is highly necessary but it is all the more confusing as it is not yet resolved whether the food security or the food safety or both is/are the problems that our nation faces today. As regards the problem of food security, the availability of food seems not to be the problem because the problem lies with the public distribution system. Take this as a very subjective opinion, and if you concur with this, it is factually true that the debate should be regarding the quality and safety of the available food. The legislation that dealt with the safety of food was the Prevention of Food Adulteration Act, 1954 which has been replaced by the Food Safety and Standards Act of 2006. The Food Safety and Standards Act of 2006 is a consolidation of several other central legislations as well. Procedure wise, it is commendable that the new legislation established a single central point authority, the Food Safety and Standards Authority of India with its head office at Delhi.

One of the main functions entrusted with the Food Safety and Standards Authority of India is to collect and compare statistics with regard to contaminants in food and to identifyemerging risks in food safety in addition to promoting general awareness on food safety. The Act also envisages a system of providing training to persons connected with food business and to create a nation-wide information network to the public especially consumers so as to provide information on food safety. Though it was reported in December 2014 that the year 2015 will witness a nationwide survey to fulfil the above mentioned objectives, it is not sure whether the mission was a success or at least in the right direction.

Evaluating the legislation from a theoretical vantage point, one must feel contented as there are provisions for mandatory registration for small or petty food business operators, licence for other food business operators. But practically one may feel a bit doubtful about the effectiveness of the legislation given the fact that certain provisions are not implemented or at least difficult to implement. Even if one claims that it can be implemented, the monitoring process can be extremely challenging. For example, Section 26(3) of the Food Safety and Standards Act of 2006 provides that no food business operator shall employ any person who is suffering from infectious, contagious or loathsome disease. One may easily understand the merit of this provision, but it will work well only if effective monitoring is done by the Food Safety Officers designated under the Act.

At the same time, the Food Safety and Standards Act of 2006 is one piece of legislation that can do wonders if proper education is provided not just to consumers but also to certain professionals. An understanding of Section 35 of the statute shows that the legislation may impose a legal duty on the registered medical practitioners in an area to report all incidents of food poisoning coming to their notice to a specified officer.

Section 53 of the Act is the one that was the matter of recent discussion in the media as it deals with penalty for misleading advertisement. According to this section any person who publishes, or is a party to the publication of an advertisement, which falsely describes any food; or is likely to mislead as to the nature or substance or quality of any food or gives false guarantee, shall be liable to a penalty which may extend to ten lakh rupees. The section came up for debate when the authority decided to ban Maggi Noodles as it is unclear whether the actor/actors who endorses the product in advertisements would also be liable. In fact, the section should be a bit more unambiguous in its definition of which all can come under the purview of ‘party to the publication of an advertisement’.  Another point to be noted is that it is not sure whether the limit of 5 Lakh Rupees (Sections 50 and 51) will deter persons from providing sub-standard food or that which is not in conformity with the Act.

Having said that, it seems the government has now decided to seek help from the stakeholders for suggestions to amend the exiting legislation as well. Is this going to be never ending process?