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.

Armed Forces Special Power Act and women safety

Maitri Tandon, Student of Law, Symbiosis Law School

ABSTARCT

This research paper concerns in itself the scenario of the northeastern and the northern states of our country, India after the inception of the Armed Forces Special Power Act. The researcher has penned down her own views on, what should be the ambit of area in which the Act should be imposing. Here, in this paper various cases are cited, issues are raised and the researchers analysis followed by a conclusion. The article demonstrates the condition of women in the states where Armed Forces Special Power Act is in power. As such this article should be of interest to a broad readership including those interested in Law, Human Rights, Women Empowerment, and Social Sciences. Views expressed in this article are of authors alone. It does not reflect the views of either publisher or the editors of the journal.

Introduction

Women, the gender that signifies courage, strength and at the same time is a figure for love, compassion and pliability has faced a lot of refinement, vehemence, bias, injustice and cold-heartedness since the inception of humankind. How ironical is it to have been worshiped and thrown ruthlessly on the roads at the same time? Experiencing both the behaviors together has helped women in empowering themselves and has made the government to consider their demands and rights first. The time of crisis has helped them the most.

Time of crisis can be empowering for women across the world, as they are pushed to brink of activism and sometimes, away from their traditional roles ((Gardem and Chalesworth, 2000, UN Security Council Resolution 1325 (2000).)). Nevertheless current research has established that conflict and militarism are more likely to create environments that repress and harm women disproportionately, compared to men ((Id.)).

This is the case particularly in ‘cold’ states of conflicts and authoritarianism. Opportunity for a change in the condition of women in these areas becomes difficult in the form of transitional political reform, rights as such women not only suffer sustained economic and social hardships and gendered violence, but also perpetual restriction on their ability to address these violation through the full exercise of their civil and political rights. Patterns of violence and repression become self-perpetuating, and the damage done to individual’s roots deep into the social fabric of the country ((Gardem and Chalesworth, 2000,UN Security Council Resolution 1325 (2000).)).

Unfortunately such is the situation in Indian ‘low intensity war’ states across North and East. These states, the seven sisters and Jammu and Kashmir are fully or partially governed by the Armed Forces Special Powers Act, 1958 (AFSPA). There have been situations when these states have suffered from draconian rule and militarization for more than 50 years in concurrence with other state and national security laws ((Jammu and Kashmir Public Safety Act 1978 and  National Security Act 1980)). Even though India is well open to the International Human Rights Treaties, author is of the opinion that, AFSPA breaches these guidelines by derogating the key human rights and also robbing the non-army personnel of the legal remedies/recourses for offences committed by the armed forces of the nation.

The Problem

  • Is the Armed Forces Special Power Act constitutional also;
  • Is it in weight with the humanity?

The Armed Forces (Special Power) Act

The unwarranted interference of the British colonies on the Indian Territory gradually led to the bloody Anglo-Manipuri conflict of 1891 with the Second World War the principle, The Naga Movement and also the failure of the new India to live up to the democratic principles treasured in its Constitution and in respecting the rights of the nationalities it had taken within its borders and several other reasons, marked the inception of the idea for this act ((Armed Forces Special Power Act: A study in National Security Tyranny)).

Eventually on 22 May 1958 after a brief discussion in the parliament that lasted merely for 3 hours The Armed Forces (Assam – Manipur) Special Power Act was passed. This act was further amended in 1990 when it broadened its ambit to Jammu and Kashmir. Armed forces (Special Power) Act gives blanket powers to the Army.

Legal Provisions Powers Bestowed over the Army

The section 1 to 3 of the Act covers the jurisdiction, the definition of ‘armed forces’ and also briefly defines  ‘disturbed’ and the power to declare area such as. While section 4 is comprehensively lays down the power given to the army: it allows any army personnel the sweeping power to arrest, without a warrant, “any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence” using any degree of force necessary, including lethal force, and to fire upon or use force “for the maintenance of public order” against persons who are contravening laws in the disturbed areas.

It prohibits “the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances.” Searches of persons and premises can be made without a warrant, while goods “reasonably suspected to be stolen” can be confiscated and structures that could be in use by insurgents, destroyed.

According to Section 5, anyone arrested by the army must be handed to police, not within a specific time period, but “with least possible delay”. Finally, Section 6 ensures that army personnel are accountable only to internal regulation and punishment, stating: “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

This immunity given to the army also extends to the mandate of the National Human Rights Commission (NHRC), which according to Section 19 of the Protection of Human Rights Act (PHRA), is not empowered to investigate apparent violations by the armed forces in areas governed by AFSPA ((It can only seek a report from or make recommendations to the central government, and require that it be informed of action taken on a case within three months [Armed Forces Special Power Act: A study in National Security tyranny].)).

Analysis

The constitutionality of the Armed Forces (Special Power) Act was questioned by the United Nations Human Rights Committee, when India presented its second periodic report to the UNHRC in 1991. India defended the Act by stating that this Act was a necessary measure to prevent the secession of the Northern Eastern states. The Attorney General said that a response to this agitation for secession in the North East had to be done on a “war footing”. He argued for the constitutionality of the act by quoting Article 355 of the Indian Constitution, which makes it the duty of the Central Government to protect the states from internal disturbance and that there is no duty under international law to allow secession ((Armed Forces Special Power Act: A study in National Security tyranny.)).

It may also be assumed that the Central government might argue for its constitutionality by testifying it with avery persuasive jurisprudential theory given by Sir Jeremy Bentham, the theory of utilitarianism, which states that “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand, the standard of right and wrong, on the other, the chain of causes and effects, are fastened to their throne”. This theory can also be explained in simple words, law that provides greater good of greater number is the law of man is deemed to be blameless. Therefore by applying this theory the government may say that the Armed Forces (Special Powers) Act safeguards the mass of the country by sacrificing the rights of some. Thus, is deemed to be constitutional.

But the question that again arises is that is it legitimate/constitutional to let the armed personnel perform heinous crimes under the cover of the act, for they are guarding our nation and flexibly set aside the rights of women provided by the constitution?

Indian Law

There are many cases, which challenge the constitutionality of this act pending in the court of law, but in this paper we will be specifically dealing with women rights, therefore we will point out the laws which are breached by armed personnel under the blankets of AFSPA.

Violation of Art 14 – Right of Equality before Law

The Constitution of India with its Art 14 ensures equality before the law. People living within the territory of India are to be treated equally before the law, which means that the law applies to all, irrespective of the caste, wealth, position, the clan a person, comes from. AFSPA thoroughly violates this right as people who are residing in the areas declared as disturbed have been denied this right because of Section 6 of the Act, which prevents the citizens from filing a suit against any personnel for armed forces without prior sanction of Central Government. This unequally burdens and demotivates the class of people residing in the “disturbed areas’.

Violation of Art 21 – Right to life

The constitution of India guarantees the right to life to its citizens under Article 21, “No person shall be deprived of his life or personal liberty except according to procedure established by law”, which is violated by Section 4 of the Act. The Armed Forces (Special Power) Act deprives the women of an effective penal remedy against forced sexual intercourse/rape performed by the guarding force of our nation; it violates their right to privacy and bodily integrity, aspect of the right to life and personal liberty under Article 21.

Violation of Sec. 375 of the Indian Penal Code

This Section of the Indian Penal Code defines Rape, “ a man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a women under circumstances falling under any of the six following description:-

  1. Against her will.
  2. Without her consent.
  3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
  4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.
  5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  6. With or without her consent, when she is under sixteen years of age.

Explanation– Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

  • Manipur- (a) In clause sixthly, for the word “sixteen” substitute the word “fourteen”; and

(b) In the Exception, for the word “fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)]. Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702.

Rape being the heinous crime, which is colossally prevalent in our country and is even more aggressively boycotted unfortunately, tops the list of crimes committed by our soldiers. There are no provisions, which are successfully being undertaken by the government, due to non-cooperation by the Indian army. One of the examples would be when Justice Verma Commission said in unequivocal terms that security persons who rape women should be judged under the same act that applies to the civilians, which was opposed by the Army ((Walter Fernandes, AFSPA: Who Rules India?))also when the Jeena Commission appointed to inquire into the alleged rape and murder of 30 year old Manorama Devi of Imphal in Manipur suggested that the law should be repealed and the clauses that are required should be integrated with other All India laws the Government did not even publish the report.

The facts of the Manorama Devi case were, in the early hours of the morning, on July 11, 2004, 29-year-old Manorama was picked up from her house in Imphal and taken away by the Assam Rifles. Three hours later her body was found with eight bullet injuries in a field. The Assam Rifles says she wanted to relieve herself and while doing so attempted to escape. She was, therefore, shot and killed. To the public, however, it appeared incredible that a four-foot eleven inch girl, weighing 50 kgs., should escape from eight highly trained jawans in an open field with nobody around. Public unrest engulfed the whole state. Aman immolated himself. Women stripped naked outside the headquarters of the Assam Rifles inviting rape and executions. In the inquiry set up under the provisions of the Commission of Inquiry Act, Manorama’s brother testified that he saw a jawan pull up Manorama’s T-shirt and insert a kitchen knife into her underwear prior to arresting her. The former police surgeon and chief Medical Officer of the Manipur Health Service and another doctor deposed that she was killed at close rage while in a lying down position. She had bullet injuries in her vagina. Apart from the bullet wounds, there were other injuries caused by blunt object. The Central Forensic Science Laboratory reported semen stains on her petticoat. A resident of the area, who was in the field at that time, contradicted the Assam Rifles version saying that she saw jawans alight from the vehicle with a lifeless body of Manorama and placed her in the field and then she heard the sound of gunshots. Policeman deposed saying that they did not find spent cartridges in the area and there was not a drop of blood on the ground ((The Murder Of Manorama; The Human Rights Bimonthly)).

The brutality and the double face of the Army has also been seen in many cases and operations, like:

Operation Blue Bird (Oinam, Bishunpur District, Manipur)

This operation was launched by the Indian Army on the 11th of July 1987 at Oinam in Manipur, in which more than 30 naga villages were covered and included extensive and cruel violations of the Human Rights violations which included torture with extrajudicial killing in addition to sexual harassment, theft and loot.

Kunan Poshpora (Kupwara District, Jammu and Kashmir)

The Kunan Poshpora search operation was initiated by the Indian Army on 23rd February 1991 during which the Indian Army personnel raped nearly hundred women including pregnant women openly in front of the villagers and there was no clear inquiry, which was held to follow up the condition. Reportedly, a police officer was threatened many times to not to make the report public, which recorded.

Shopian Case (Shopian district, Jammu and Kashmir)

On 29th May 2009 two girls from Shopian district went missing on the way back from orchard. Their dead bodies were found the next morning. This was a case of gang rape based on the information given by the Forensic lab by the Army personnels who were camped nearby ((Available at http://www.countercurrents.org/nitesh171114.htm)).

The Armed Forces (Special Power) Act 1958 was enacted on experimental basis as a measure against “terrorist” groups in the North East for a period of six months. This experimental project which was enacted for Six months has now been enacted for over five decades and there has been no declination of the number of such groups in the North East they have just increased from two in to twenty in Manipur, Assam has not less than fifteen, Meghalaya has five of them and other States have more groups. How has the government allowed an act to stay even when the “experimental” measure has failed to achieve its major goal?

Conclusion

The main aim of writing this paper was to familiarize readers with the harsh reality regarding The Army. On the basis of the aforesaid information we arrive at the conclusion that, even though the Army is deployed for our protection and it is saving the Nation with its fullest strength. It is important for the government to keep a check or intervene in the functioning of the force where it is bestowed with unquestionable power through AFSPA.

When the country is fighting against the sexual assaults, which are prevalent in the Nation is it rational to have the force that is deployed for the protection and betterment of the country to take advantage of the immunity provided to them under the Act? No. Why is it that the culprits are exempted from the punishment?

The government should punish all the criminals in accordance to the principle of equity. No, offenders should be exempted from the punishment just because of the immunity bestowed on the institution he is working for. There is no reason why an offender should have a distinguished law. They should be dealt under the law of land and should be punished in the same way as “civil” criminals.

 

Misuse of sexual harassment laws in India

Raghavi Viswanath

The Indian judiciary has seen a decelerated evolution with regards to sexual harassment laws. This article seeks to highlight and analyze the various flaws in the legal apparatus to deal with sexual harassment as it exists today.

One of the most dubious provisions is Section 498-A of the Indian Penal Code. While the provision has been created to protect women from marital violence, the arbitrariness that it confers upon the police authorities as well as the women who allege domestic violence has been received with opprobrium and accused of fostering misogyny. Domestic violence under Section 498-A is a cognizable, non-bailable and non-compoundable offence. Such an arrangement lets no room for out-of-court settlements. The petitioners do not have the option of revoking the charges. Complaints filed under this Section also warrant immediate arrests of the husband and the family members where necessary. A necessary implication of the non-bailable nature of the offence is the bleak possibility of the marital relationship being restored. The impact of these consequences is manifold because the charges are irrevocable. Statistics show that in the period of 2011-2012, there was a 9.4% increase in the number of cases registered under Section 498A ((SauravDatta, What Powers the “Section 498-A misuse” bandwagon?, 5 July, 2014, available at http://www.dnaindia.com/india/standpoint-what-powers-the-section-498a-misuse-bandwagon-1999791, accessed on 24th January,2015)). However, its counter-narrative lies in the fact that the conviction rate is a miserly figure of 15% ((ibid)).

Suggestions have been made to amend the provision that has oft-been termed diabolic. The Malimath Committee on Criminal reforms (2003) suggested that the offence under Section 498-A be made compoundable and bailable. This view was reiterated in the 243rd Law Commission Report. Justice CK Prasad in his judgment in the case of Arnesh Kumar v State of Bihar ((SLP (CRL.) No.9127 of 2013))also highlighted the pressing need to balance the interests of the woman as well the stability of the family.

Another legal breakthrough is the Sexual Harassment of Women at Workplace Act, 2013 that was enacted after more than a decade of deliberation and re-examination. The landmark judgment of the Court in the Vishakha case was accompanied by a set of guidelines, in lieu of India’s international and constitutional commitments( such as the Convention on Elimination of All forms of Discrimination Against  Women and the right to safe work environment and right to freely practice one’s profession enshrined in Articles 19(1)(g), 15(3), 21 and 14).The Act , in the backdrop of the Court’s decision in the MedhaKotwal case and the Vishakha case, laid down a framework for investigation of complaints of sexual harassment . The mandatory nature of the Act can be attributed to the prescribed punishment for non-compliance. It not only protected the female employees, but any woman, whether employee or not, who was sexually assaulted within the premises of workplace as defined in Section 2(o) of the Act.

The Act has been touted to be the torchbearer of feminist legislation for several reasons, Firstly, the Act is not gender neutral and men are barred from filing similar complaints. The employer is also held liable for sexual harassment in places like taxis, hotels and also the offices of clients, where the employer hardly has any authority or control ((Available at http://www.avoiceformen.com/feminism/feminist-governance-feminism/indias-new-sexual-harassment-at-workplace-law/, accessed on 24th January,2015)). The investigation Committees such as the Internal Complaints Committee and the Local Complaints Committee have powers equivalent to a civil Court as enumerated in Section11.  However, the members of such Committees need not have any legal backing. The ambiguity of such criteria is heightened in the case of the Local Complaints Committee where the Presiding Officer should be ‘committed to the cause of women’( used in Section 4 and Section 7 of the Act), a subjective standard that can be neither justified nor disproved. Moreover, the inclusion of such a criterion suggests pre-conceived gender biases and this violates the general standards of impartiality.

The Act does not fall within the domain of the Right to Information Act. Therefore, details of false complaints or fabricated cases will not be available. As per Section 15 of the Act, action will be taken for false complaints. However, if the complaint is not substantiated, then the woman will be provided complete immunity. Furthermore, the identity of the woman will be kept confidential even in cases of false complaints. The compensation prescribed under the Act eschews the principle of equality before the law as it is awarded progressively, proportionate to the income earned by the respondent.

The draconian character of the legislation has drawn the attention of several authorities. The Central Administrative Tribunal, in a bench comprising of Judges KB Suresh and PK Pradhan, adjudicating upon cases of sexual harassment at the workplace, characterized Section 4 and 7 of the Act as ‘unconstitutional’ ((Krishnaprasad, CAT finds illegality in law against sexual harassment at workplace, The Hindu, 13 July, 2014, available at http://www.thehindu.com/news/national/karnataka/cat-finds-illegality-in-law-against-sexual-harassment-at-workplace/article6204747.ece, accessed on 24th January, 2015)). The Bench held that the legislation was ‘double-edged’ and the Vishakha Committees found sufficient leeway for manipulation. The fear of punishment compelled even the higher echelons of authorities to dismiss their employees even before adjudicating the merits of the complaint.

On the flipside, the existing framework has been misused to impede justice to the female victims in most situations. Marital rape, in India, continues to be a standing example of such travesty of justice. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed ((Priyanka Rath,  Marital Rape and the Indian legal scenario, India Law Journal, Available at http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html, accessed on 24th January, 2015)).

With the case of R v R (([1994] 4 All ER 481 [HL])), the English Courts widened the ambit of sexual harassment by recognizing marital rape. This judgment negated the oft-believed concept that marriage leads to natural implication of consent of the wife to sexual intercourse.  However, marital rape still eludes the Indian legal framework.  The root cause of this problem lies in the archaic construction of the statutory provisions pertaining to rape, namely Section 375 and Section 376 of the Indian Penal Code, both of which explicitly exclude sexual assault on the wife. The law further discriminates between marital bonds and prescribes punishment for marital rape only if the wife is under 16 years if age beyond which she has no remedy. Furthermore, since according to Section 122 of the Evidence Act, the communication between a husband and a wife cannot be treated as evidence unless for a persecuted offence, law does not allow any evidence for corroboration of marital rape.

While the 172nd Law Commission report did suggest changes to broaden the scope for justice by deleting Section 376 A, the victim suffers a ‘second rape’ in the hands of the law itself. The procedural laws are also used against the interests of the victim to stifle her. One of these defenses is Section 155(4) of the Evidence Act under which the victim can be questioned about her past. The element of physical evidence to prove lack of consent has deterred several victims, especially in the lower Courts. As India matures as a democracy, it is imperative not only for laws to be enacted, but adequate safeguards to prevent their abuse so that the best interests of the victim are promoted.

Ownership and control of material resources of the community

Recent trends in Judiciary

Dr. Kondaiah Jonnalagadda, Assistant Professor, NLIU, Bhopal

Ownership and Control of the Material resources of the Community is to be distributed according to the policy of the state to sub-serve the common good, as it is given in Article 39 of Constitution of India. State also acts as trusty of public property. Exploration and Exploitation of natural resource, public property should identify the beneficiary through the policy. The beneficiary should not be a private party, multinational company, or any other body corporate; it is always people of India.  Identification of beneficiary and distribution of resources is one of the primary duty of state while distributing natural resources.

Any means of Jobbery, Nepotism, and arbitrariness in distribution of natural resources is violation of Article 14 of the constitution of India. The existing of the methods of distribution of natural resources will destroy the statehood, because of Corporates enjoy benefits and profits, whereas the property belong to common man.

With this back drop, the author will analyze in this article the various judicial precedents pronounced by the Supreme Court of India, to protect the property of common man and acted as trustee of property, though it is the duty of executive.

Object of Part-IV of the constitution

The Fundamental Rights and the Directive Principles constitute the ‘conscience’ of our Constitution. The purpose of the fundamental rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and make liberty available to all. The purpose of Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about non violent social revolution. Through such a social revolution the Constitution seeks to fulfil the basic needs of the common man and to change the structure of the society. It aims at making the Indian masses free in the positive sense. Without faithfully implementing Directive Principles, it is not possible to achieve the Welfare Sate contemplated by the Constitution ((See Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225)).

Directive Principles are also fundamental. They can be effective if they are to prevail over Fundamental Rights of a few in order to sub-serve the common good and not allow the economic system to the common detriment ((Ibid Per Ray J)). Our Constitution aim at bringing about a synthesis between “Fundamental Rights” and “Directive Principles of State Policy”, by giving to the former a pride of place and to the latter a place of permanence. Together, not individually, they from the core of the Constitution. Together, not individually, they constitute its true conscience ((Ibid Per Chandrachud, J)).

Judicial Trends from 1980-2014

The Supreme Court of India  in Kasturi Lal Lakshmi Reddy and Ors.v. State of J and K and Anr., (([1980] 4 SCC 1))had said that where the State was allocating resources such as water, power, raw materials, etc., for the purpose of encouraging setting up of industries within the State, the State was not bound to advertise and tell the people that it wanted a particular industry to be set up within the State and invite those interested to come up with proposals for the purpose. It was also observed that if any private party comes before the State and offers to set up an industry, the State would not be committing breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose.

In Sachidanand Pandey and Anr.v. State of West Bengal and Ors. (([1987] 2 SCC 295))this Court had observed that ordinary rule for disposal of State-owned or public-owned property, was by way of public auction or by inviting tenders but there could be situations where departure from the said rule may be necessitated but then the reasons for the departure must be rational and should not be suggestive of discrimination and that nothing should be done which gives an appearance of bias, jobbery or nepotism. This principle was echoed again in Haji T.M. Hassan Rawther v. Kerala Financial Corporation, (([1988] 1 SCC 166))wherein this Court reiterated that the public property owned by the State or by an instrumentality of State should be generally sold by public auction or by inviting tenders. It was emphasized that this rule has been insisted upon not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities and to obviate the factors like bias, favoritism or nepotism. Clarifying that this is not an invariable rule, the Court reiterated that departure from the rule of auction could be made but then it must be justified.

The above principle is again stated by this Court in M.P. Oil Extraction and Anr. v. State of M.P. and Ors., (([1997] 7 SCC 592))in which this Court said that distribution of largesse by inviting open tenders or by public auction is desirable but it cannot be held that in no case distribution of such largesse by negotiation is permissible.

In Netai Bag and Ors.v. State of West Bengal and Ors. (([2000] 8 SCC 262))this Court said that when any State land is intended to be transferred or the State largesse is decided to be conferred, resort should be had to public auction or transfer by way of inviting tenders from the people as that would be a sure method of guaranteeing compliance with mandate of Article 14 of Constitution but non-floating of tenders or not holding public auction would not in all cases be deemed to be the result of the exercise of the executive power in an arbitrary manner.

In VillianurIyarkkaiPadukappuMaiyam v. Union of India and Ors., the matter before this Court related to the selection of contractor for development of the port of Pondicherry without floating a tender or holding public auction. The Court said that where the State was allocating resources such as water, power, raw materials, etc., for the purpose of encouraging development of the port, the State was not bound to advertise and tell the people that it wanted development of the port in a particular manner and invite those interested to come up with proposals for the purpose (([2009] 7 SCC 561)).

In Centre for Public Interest Litigation and Ors. v. Union of India and Ors., (([2012] 3 SCC 1))this Court stated that a duly publicised auction conducted fairly and impartially was perhaps the best method for alienation of natural resources lest there was likelihood of misuse by unscrupulous people who were only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. Court laid emphasis that while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.

The Constitution Bench clarified that the statement of law in Centre for Public Interest Litigation and Ors. v. Union of India and Ors. (([2012] 3 SCC 1))that while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction was confined to the specific case of spectrum and not for dispensation of all natural resources. The Constitution Bench said that findings of this Court in Centre for Public Interest Litigation and Ors. v. Union of India and Ors.  were limited to the case of spectrum and not beyond that and that it did not deal with the modes of allocation for natural resources other than spectrum.

A fortiori, besides legal logic, mandatory auction may be contrary to economic logic as well. Different resources may require different treatment. Very often, exploration and exploitation contracts are bundled together due to the requirement of heavy capital in the discovery of natural resources. A concern would risk undertaking such exploration and incur heavy costs only if it was assured utilization of the resource discovered; a prudent business venture, would not like to incur the high costs involved in exploration activities and then compete for that resource in an open auction. The logic is similar to that applied in patents. Firms are given incentives to invest in research and development with the promise of exclusive access to the market for the sale of that invention. Such an approach is economically and legally sound and sometimes necessary to spur research and development. Similarly, bundling exploration and exploitation contracts may be necessary to spur growth in a specific industry.

Similar deviation from auction cannot be ruled out when the object of a State policy is to promote domestic development of an industry, like in KasturiLal’s case, discussed above. However, these examples are purely illustrative in order to demonstrate that auction cannot be the sole criteria for alienation of all natural resources.

In Natural Resources Allocation, In re, Special Reference No. 1 of 2012 (([2012] 10 SCC 1)): the Constitution Bench, in the main judgment, thus, concluded that auction despite being a more preferable method of alienation/allotment of natural resources cannot be held to be constitutional requirement or limitation for alienation of all natural resources and, therefore, every method other than auction cannot be struck down as ultra vires the constitutional mandate. The Court also opined that auction as a mode cannot be conferred the status of a constitutional principle. While holding so, the Court held that alienation of natural resources is a policy decision and the means adopted for the same are, thus, executive prerogatives. The Court summarized the legal position as under:

“To summarise in the context of the present Reference, it needs to be emphasised that this Court cannot conduct a comparative study of the various methods of distribution of natural resources and suggest the most efficacious mode, if there is one universal efficacious method in the first place. It respects the mandate and wisdom of the executive for such matters. The methodology pertaining to disposal of natural resources is clearly an economic policy. It entails intricate economic choices and the Court lacks the necessary expertise to make them. As has been repeatedly said, it cannot, and shall not, be the endeavour of this Court to evaluate the efficacy of auction vis-a-vis other methods of disposal of natural resources. The Court cannot mandate one method to be followed in all facts and circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. We may, however, hasten to add that the Court can test the legality and constitutionality of these methods. When questioned, the courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the Court would not hesitate in striking it down ((ibid)).”

Regard being had to the aforesaid precepts, we (Supreme Court) have opined that auction as a mode cannot be conferred the status of a constitutional principle. Alienation of natural resources is a policy decision, and the means adopted for the same are thus, executive prerogatives. However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits of profit maximising private entrepreneurs, adoption of means other than those that are competitive and maximise revenue may be arbitrary and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles which we have culled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antimony with Article 14 of the Constitution.

Common Good and Distribution of Natural Resources

The disposal of natural resources is a facet of the use and distribution of such resources. Article 39(b) mandates that the ownership and control of natural resources should be so distributed so as to best subserve the common good. Article 37 provides that the provisions of Part IV shall not be enforceable by any court, but the principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Therefore, this Article, in a sense, is a restriction on “distribution” built into the Constitution. But the restriction is imposed on the object and not the means. The overarching and underlying principle governing “distribution” is furtherance of common good. But for the achievement of that objective, the Constitution uses the generic word “distribution”. Distribution has broad contours and cannot be limited to meaning only one method i.e. auction. It envisages all such methods available for distribution/allocation of natural resources which ultimately subserve the “common good”.

It can thus, be seen from the aforequoted paragraphs that the term “distribute” undoubtedly, has wide amplitude and encompasses all manners and methods of distribution, which would include classes, industries, regions, private and public sections, etc. Having regard to the basic nature of Article 39(b), a narrower concept of equality under Article 14 than that discussed above, may frustrate the broader concept of distribution, as conceived in Article 39(b). There cannot, therefore, be a cavil that “common good” and “larger public interests” have to be regarded as constitutional reality deserving actualisation.

The norm of “common good” has to be understood and appreciated in a holistic manner. It is obvious that the manner in which the common good is best sub-served is not a matter that can be measured by any constitutional yardstick-it would depend on the economic and political philosophy of the Government. Revenue maximisation is not the only way in which the common good can be sub-served. Where revenue maximisation is the object of a policy, being considered qua that resource at that point of time to be the best way to subserve the common good, auction would be one of the preferable methods, though not the only method. Where revenue maximisation is not the object of a policy of distribution, the question of auction would not arise. Revenue considerations may assume secondary consideration to developmental considerations.

Therefore, in conclusion, the submission that the mandate of Article 14 is that any disposal of a natural resource for commercial use must be for revenue maximisation, and thus by auction, is based neither on law nor on logic. There is no constitutional imperative in the matter of economic policies-Article 14 does not predefine any economic policy as a constitutional mandate. Even the mandate of Article 39(b) imposes no restrictions on the means adopted to subserve the public good and uses the broad term “distribution”, suggesting that the methodology of distribution is not fixed. Economic logic establishes that alienation/allocation of natural resources to the highest bidder may not necessarily be the only way to sub-serve the common good, and at times, may run counter to public good. Hence, it needs little emphasis that disposal of all natural resources through auctions is clearly not a constitutional mandate.

Public Trust Doctrine in Economic Laws

Though the Public Trust doctrine is used in environmental law protection, it is also used in economic laws as protect the interest of stake holders. The Court observed that the State is empowered to distribute natural resources as they constitute public property/national assets. Thereafter, the Bench observed as follows ((ibid)):

“While distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection…”

The learned Judges adverted to the ‘public trust doctrine’ as enunciated in The Illinois Central Railroad Co. v. The People of the State of Illinois ((36 L ED 1018 : 146 U.S. 387 (1892); M.C. Mehta v. Kamal Nath and Ors. (1997) 1 SCC 388; JamshedHormusjiWadia v. Board of Trustees, Port of Mumbai and Anr. (2004) 3 SCC 214; Intellectuals Forum, Tirupathi v. State of A.P. and Ors: (2006) 3 SCC 549; Fomento Resorts and Hotels Limited and Anr. v. Minguel Martins and Ors. (2009) 3 SCC 571 and Reliance Natural Resources Limited v. Reliance Industries Limited (2010) 7 SCC 1))and held ((ibid)):

. As natural resources are public goods, the doctrine of equality, which emerges from the concepts of justice and fairness, must guide the State in determining the actual mechanism for distribution of natural resources. In this regard, the doctrine of equality has two aspects: first, it regulates the rights and obligations of the State vis-à-vis its people and demands that the people be granted equitable access to natural resources and/or its products and that they are adequately compensated for the transfer of the resource to the private domain; and second, it regulates the rights and obligations of the State vis-à-vis private parties seeking to acquire/use the resource and demands that the procedure adopted for distribution is just, non-arbitrary and transparent and that it does not discriminate between similarly placed private parties.

Referring to the decisions of this Court in, the Bench ultimately concluded thus:

In conclusion, It was upheld that   the State is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good ((AkhilBhartiyaUpbhokta Congress v. State of Madhya Pradesh and Ors. (2011) 5 SCC 29 and SachidanandPandey and Anr. v. State of West Bengal and Ors. (1987) 2 SCC 295)).

Conclusion

On the basis of various judicial pronouncements and policies of state, it is submitted that the state is the trustee of the public property. However, it can be seen from the recent highlighted scams like, spectrum, Coalgate and others etc. Public property is being used for the benefit of private parties and not the common good. In these time, Courts interference protected the interest and object of Directive principles of state policy, where as it is the duty of executive to uphold and protect the interest of public property and natural resources at large.

It submitted that it is the judicial justice which prevented private parties to enjoy the benefits of public property by using the means of jobbery, nepotism, and bias.   It is also seen from the above cases, that the private companies and MNC’s enjoyed the benefits and profits over a period of two decades due to the licenses/leases given by government. After cancelling all these licenses/ leases the state will be allocating the same to private parties, however, it has to follow mandate given by the Supreme Court of India.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – An Analysis

Vishnu S Warrier

Sexual harassment is an act that creates a hostile working environment which may be by way of cracking lewd jokes, verbal or physical abuse, circulating lewd rumors etc. Though, India had signed and ratified Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) way back in 1993, we did not have a specific legislation to address the issue of sexual harassment at Workplace. Till 1997, facing victim of sexual harassment at the workplace had to lodge a complaint under Section 354 ((Criminal assault of women to outrage women’s modesty))and 509 ((Assault or criminal force to woman with intent to outrage her modesty))of the Indian Penal Code 1860. However, scenario changed when Supreme Court stipulated the famous Vishaka Guidelines though its landmark judgment in Vishaka and others v State of Rajasthan ((Word, gesture or act intended to insult the modesty of a woman)).

Further, Court observed that, the consideration of “CEDAW and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein.” Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers. Accordingly, Government of India passed the Sexual Harrassment of Women at Workplace (Prevention, prohibition & Redressal) Act ((Hereinafter the Act)), to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto, and the same has been made effective on December 9, 2013 ((Gazette Notification dated December 9, 2013)).

The Act will ensure that women are protected against sexual harassment at all the Workplaces, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth ((Press Information Bureau, Government of India (Dated November 4, 2010). Protection of Women against Sexual Harassment at Workplace Bill, 2010, last accessed on December 12, 2013.)).

Key Features of the Act

Sexual harassment at Workplace

The Act defines sexual harassment to include unwelcome sexually determined behaviour such as physical contact, request for sexual favours, sexually coloured remarks, screening of pornography, or any other conduct of sexual nature ((Section 2 (n).)). It may further include any promise of preferential treatment, threat of detrimental treatment, hostile work environment, or humiliating conduct constituting health and safety problems ((Section 3 (2).)).

Workplace, Employer, Employee

Workplace is defined to include all organizations, and any other places visited by an employee during the course of work ((Section 2 (o).))and it covers every woman at the work place whether employed or not ((Section 2 (f).)). Further, the Act defines employer as the person responsible for the management, supervision and control of the work place ((Section 2 (g).)).

Internal Complaints Committee & Other Local Committees

The Act insists upon the formation of an Internal Complaints Committee in every workplace, as per the provisions of Section 4. It further provides that, where the offices or administrative units of the workplace are located in various places, Internal Complaints Committee shall be constituted in all such units.

The Act also empowers the District Officer to constitute Local Compliant Committees in every district. And such Local Committee shall include an eminent woman who is working in the area of Social Work and committed towards the cause of women, as the Chairperson, and two members from an NGO committed to the cause of women ((Section 7)).

Duties of Employer

Chapter VI of the Act entrusts certain duties upon the employer ((Section 19)). Under which, every employer has to;

  1. Provide a safe working environment at workplace;
  2. Constitute an Internal Complaints Committee and conspicuously display the order constituting the Committee;
  3. Organize workshops and other training programmes at regular intervals for sensitizing employees;
  4. Provide assistance during any inquiry;
  5. Initiate actions against the perpetrator; and
  6. Provide assistance to the women if, she prefers to file complaint under the provisions of Indian Penal Code.

Redressal mechanisms – Complaint filing & Inquiry initiating

Chapter IV of the Act prescribes the procedures to be followed in filing complaint. Under the provisions of this Act, aggrieved women shall make a complaint in writing to the Internal Complaint Committee within three months of the last incident. In case the women is not in a position to file complaint due to her physical or mental incapacity, death or otherwise, her legal heir shall file the complaint ((Section 9)). In the absence of Internal Complaint Committee, complaint shall be filed with the Local Committee ((Id.)).

The Committee is required to complete the inquiry within a time period of three months. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be. They are mandated to take action on the report within two months. On request from the complainant, the committee shall provide for conciliation ((Section 10)). Complainant may also seek other remedies, including initiating criminal proceedings under the provisions of any other laws in existence.

Penalty & Appeal

The Committee shall recommend penalties for sexual harassment as per service rules applicable or the Rules under the Act, in case the allegations are proved. Besides, the Committee may provide for monetary compensation to the complainant. Further, whoever contravenes the provisions of Section 16 ((Prohibition of Publication or making known contents of complaint and inquiry proceedings)), shall be punished with a fine of Rs. 5000/- ((Section 17)). Any person aggrieved by the recommendations of the Committee, shall appeal within 90 days of the recommendations. All such appeal shall be preferred to a Court/Tribunal ((Section 18)).

Analysis & Major Issues

  1. Act insists upon the employer to constitute an Internal Complaints Committee at every unit. Practically, it may be impossible for big employers.
  2. Definition of employee is in its wider sense. Hence, it could be interpreted that, even a “domestic worker” who is working at home shall come under the protection of this Act.
  3. Each Internal Committee requires membership from an NGO or association committed to the cause of women. This implies that every unit in the country needs to have one such person in the Committee. There is no public data on the number of NGO personnel ‘committed to the cause of women’. There could be difficulties in implementation if sufficient number of such NGO personnel is not available ((PRS Legislative Brief, The Protection of Women against Sexual Harassment at Work Place Bill, 2010 available at http://www.prsindia.org/uploads/media/Sexual%20Harassment/Legislative%20Brief%20-%20Sexual%20Harassment%20-%2020May11.pdf last accessed on December 12, 2013.)).
  4. Act doesn’t provide the maximum number of members which shall form part of the Committee.
  5. The Internal Complaints Committee has been given powers of a civil court for summoning, discovery and production of documents etc. however, the composition of the Internal Committee does not require any member to have a legal background. Moreover, the Act does not specify any requirement of legal training to the Committee for fulfilling these duties. This provision differs from that of the Local Complaints Committee, in which at least one member has to ‘preferably’ have a background in law or legal knowledge ((Id.)).
  6. Act provides that every District Officer shall constitute a Local Complaints Committee in the district. However, jurisdiction and functions of these committees have not been detailed. It is also unclear whether the block or taluk level committees are permanent committees or temporary ad hoc committees constituted for dealing with specific cases only.
  7. Act provides that in case a committee is of the opinion that the allegation was false or malicious, it may recommend that action be taken against the woman who made the complaint. However, the provision also provides that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant. Though there may be merit in providing safeguards against malicious complaints, this provision penalises every false complaints, which may not be malicious. This could deter women from filing complaints.

*** This article was initially published at eMagazine of ICSI Mysore Chapter (Edition 121, February 2014)

GOING BACK TO SQUARE ONE: SC shows red signal to Gay rights

Aastha Mehta

In a thought-provoking judgment on Wednesday, Supreme Court of India describes homosexuals as “miniscule fraction” of the population, a term which has not gone too well with those who have been fighting to get a voice in the mainstream, starting from agencies working for Gay rights to NGOs, and the all those who were directly involved with the outcome of the case.

The court has made certain observations which has shown how section 377 of IPC is constitutional, washing away the wave of hope which had come into the homosexual community by  the earlier Delhi judgment which gave gays and lesbians an opportunity, by declaring section 377 of IPC as unconstitutional to Article 14 and 21 of the Indian Constitution. The earlier judgment was a step in the positive direction for the LGBT community, since it declared Section 377 as unconstitutional, thereby allowing the much-sidelined, tortured and depressed community to be able to stand up at par with the privileged class. But the recent decision has been a blow to the tolerant and liberal approach taken by the High Court of Delhi, bringing India again on the threshold of insensitivity, anguish and suffering of this community.

WHATS CHANGED? COMPARISON WITH DELHI HC JUDGMENT

The earlier judgment which legitimized the LGBT sexual rights rejected the arguments laid down in the affividavit of Ministry of Home Affairs (MHA) which showed antiduvilian an anarchical thought process by justifying the retention of Section 377 by writing that deletion of the provision will increase delinquent behavior and will give unfetter license to the homosexuality (page 11 of Delhi Judgment). They also derogate sexuality as a disease, which needs to be curbed. Though the Supreme Court does not approve such an extreme stance taken in the earlier affividavit, nevertheless, it views homosexuality as a non-conforming behavior making, since the supreme court judgment does not rebuke the Home Ministry for morally-discouraging point of view, nor does it show its own opinion on the subject, making the judgment based on how Section 377 does not come in the way of fundamental rights.

HC can be considered as a pioneer for enlarging Article 21 to even include within its meaning, to retain one’s core identity, and projects right to privacy, dignity and autonomy important constituents of fruitful human life. It would be pertinent to quote the judgment wherein it say “Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Indian Constitution”. Somersault has been the path which the apex court has conveniently taken, to avoid being a moral custodian an strictly dealing with the legal aspects of such an issue. Supreme court judgment has been singularly focused on whether it can strike down this provision which has been more than 100 year old, on the basis of some NGO reports, public-spirited individuals, and on the precedential value of foreign judgments wherein homosexuality has been accepted.

Appreciable is one very emotional and academic point which the High court has addressed, which unfortunately has not even been given a passing mention by the recent judgment. On the basis of commendable and reliable authorities, High Curt quoted Dr.Ambedkar’s words as reproduced in the book of Granville Austin “Indian Constitution: Cornerstone of a Nation” as follows “popular morality or public disapproval of certain acts is not a valid justification for restriction of fundamental rights under Article 21.” Elaborating further whether the public opinion of dejection and hatred for homosexuals should form a base for trampling rights of this community it said “Moral indignation, howsoever strong, is not a valid basis for overriding individual’s fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.” Such a stand would have been more welcome if it came from the apex court, which would have meant freedom from subjection and access to health care facilities especially for HIV/AIDS for this LGBT population.

Summarily the apex court avoided the question whether is it within the realm of state interest to criminalize homosexual conduct, which was tactfully not ventured into at all, by placing reliance on the case of Gobind v. State of Madhya Pradesh (1975) 2SCC 148 which in ratio decidendi laid that right to privacy is not an absolute right, although while quoting the judgment in verbatim, it also points out the obiter dictum which is one possibility which even the supreme court relied upon which is as follows, “ the question whether enforcement of morality is state interest sufficient to justify the infringement of fundamental privacy right need not be considered for the purpose of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is function of state”. (as held in Gobind case).

OBSERVATIONS OF THE SUPREME COURT DECISION

The decision fails to account for the plights of the this ignored community, which was the major argument used by counsels of the Respondents, and has gone into detail how Section 377 of IPC should be interpreted, in the light of constitutional provisions. One very important aspect of this decision is that court has used technical doctrines in interpreting the words of Section 377 by going to discuss doctrine of severability, interpretation of vague statues etc. and has finally come to the conclusion on the support of various decisions that possibility of abuse by authorities will not render a provision or an Act as unconstitutional. This has been laid down as an answer to the arguments of Respondents, when they went on to highlight how the police authorities have been arbitrarily using section 377 as a tool to harass homosexuals, and treating them at par with deviants and criminals. To quote the decision the court said “In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not reflection of the vires of the section.”

The judgment leaves us with a debate by saying that Legislature can definitely look into the desirability of amending this section, however it seems too early for the judiciary to take a stand on it by way of this judgment. It has also relied on Padma Sundara Rao (dead) and Ors v. State of Tamil Nadu an Ors. [2002] 255ITR 147 (SC) by saying that if a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. This shows how under the garb of various legal strict doctrines, court has virtually closed the doors for homosexual rights, keeping it on the whims and fancies of Parliament to decide on the fate of Section 377 of IPC.

With regard to what Section 377 of IPC intends, Supreme Court has laid down that Section 377 would apply irrespective age and consent, and further goes on to say that Section 377 does not criminalize a particular people or identity or orientation, and merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation. (Page.77 of judgment) However, it seems surprisingly contradictory since on the same page of the judgment, the court admits the fact that there is no uniform test which can be culled out of to classify the acts as “carnal intercourse against the order of nature” which are the precisely the words used in the section 377, which makes the statement that this section regulates the sexual conduct very weak, and even to some extent very illogical. When the bench itself has said that the interpretation of these words is difficult, it seems highly unlikely for the lowers courts to have guidance to what would constitute an act of “carnal intercourse” under this section. It leaves good amount of scope for interpretation for other lower courts, and at the same time for conflicting decisions also.

Lack of particulars and factual matrix by the Respondents has also been a major issue at which the court has turned the decision against their favor. Court has held that Respondents have failed miserably to furnish particular incidents of the torture or alleged discrimination meted out by the agencies or people in general towards the homosexuals, and indirectly has supported the arguments of the appellants (Page 21) that there is a dearth of tangible material on record for the Respondents to attack on the constitutionality of the provision. The reports and the affividavits which were placed before the court were thought to be too less and also “academic” for being considered as strong support for declaring the provisions as void. Therefore bench exercised “self restraint” and where guided by the presumption of constitutionality in the favor of the statute.

Dealing with the question which is of uttermost importance here is, whether Section 377 of IPC and Article 14 of the Constitution are in conflict, the court relied on landmark judgments which have given the true essence of this fundamental freedom, and has laid down that Article 14 is nowhere violated by Section 377. The contention of Respondents was that section 377 arbitrarily differentiates between heterosexual acts and homosexuals acts, without any rationality. It also was argued by them that homosexuality shouldn’t be seen as threat to morality or as criminal behavior. Court gave the reason that those who fall under the ambit of Section 377 cannot cliam that Section 377 is irrational, primary reason being that Section 377 merely defines he offence and prescribes punishment and does not discriminate by the wording of the statute against the homosexuals.

Court also discussed the right to privacy under Article 21 which was also resorted to show that this community’s personal choices and liberty have been compromised with, leaving them into the annals of depression and sidelining them from mainstream life. In stark contrast, the court heavily relied on cases which showed that right to privacy is not an absolute right and can be lawfully taken for prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others [Mr.X v. Hospital Z, (1998) 8 SCC 296]. Subtle underlying point is that even the judiciary sees that such behavior might be affecting the majoritarian view of morality and has the potential to shake the roots of marriage as an institution.

Therefore the court has applied an interpretation which burdens the Parliament to “make or break history” and has crafted the judgment in such a manner that it focuses a lot on technicalities and little on the real sorrows of these people, who have suffered tremendously. Apex court has also turned a blind eye on the international principles of Yogyakarta which were used to justify homosexuality by Delhi High Court, and has stuck to the well-treaded beliefs, largely wrong about    LGBT community. Pondering upon the title of the article, I guess apex court has gone to the 42nd Law Commission Report which gave suggestion for retention of Section 377, primarily on the basis of the societal disapproval for such “queer” behavior as some put it, and therefore we have gone back to the times when societal reaction, moral policing and enforcing what is socially acceptable has again been predominantly affecting the judiciary.

Transgenders should have right to informed choices

Ipsita Mishra

The transgender are being discriminated in every stage of life. They are disregarded in our Indian society and hence deprived of their rights. They have their constitutional rights and they need to realize their voice against any form of injustice.  The Supreme Court has asked the government to recognize them as third sex or giving them choice of being identified as male or female. Every person should be given a right to live with dignity and equality and so should the transgenders. The transgender with gender issues should be allowed to make informed choices. The transgenders need to be categorized as third category so that they can apply for election cards, driving license, getting medical treatment, educational facilities etc. Article 14 provides equality for all and Article 16 provides equal opportunities for all. Considering transgender a legal non-entity was violative of Articles 14, 15, and 16.Judicial notice should be taken of the transgender category and benefits should be extended to economically and social weaker sections of the society taking into account Article 15 and Article 21 of the Constitution. Focusing on sexual identification is a negation of article 15.Article 21 states about right to live with dignity and thus the transgender should have a right to choice of sexual identity. The transgender might face practical difficulties in facing public convenience in accordance if he has to choose if he is a female.

They also have a problem when they are categorized as others though it is a developing concept that their existence has to be recognized. ‘Others’ is a vague term and it does not convey the individuality of a person. Moreover it symbolizes as ‘unwanted’. When other countries can recognize their identity, why does Indian government have to have this hypocrisy in its government? Transgender have always been the laughing stock of society. They are abandoned by society, shunned by their own families, harassed and beaten by the police and ignored by the government.

Further Reading:

A Curious Case of Single Bid

Author: Raj Kumar, Assistant Professor, Department of Law, University of Jammu

In India, the tending process or bidding is the most preferred route of public procurement. However, only under exceptional circumstances direct negotiation is used in public procurement. ‘Public Procurement ‘or ‘Bids’ can be defined as the procurement of goods, works and services through tender process or bidding process by all Government Ministries, Departments, Agencies, Statutory Corporations and Public Sector Undertakings in the Centre and the States, Municipal Corporations and other local bodies. A tender is an offer to do works, services or supply goods at a price arrived through tender process for a fixed period. Generally, Government reserves the right to accept or reject any application at any stage of the selection process subject to the terms of the tender document. Once government accepts a tender, it is binding on both parties i.e. it results into a binding contract.

The law of contract is considered to be as parties’ paradise, parties to the contract are free to choose terms and conditions of the contract subject to the provisions of the law. The rules and principles governing contracts were governed by the Indian Contract Act, 1872. However, it may be worthwhile to mention here that the Government does not stand on the same footing as a private person who is free to enter into a contract with any person he likes or wishes. The State or Government, in exercise of its various functions, is bound by the mandate of Article 14 of the Constitution of India which excludes arbitrariness in State action and requires the State to act fairly and reasonably and consequently the discretion in the matter of selection of the person for award of the contract has to be exercised keeping in view the public interest involved in such selection. ((Piyush Joshi and Anuradha R.V, Study on Competition concerns in Concession Agreements in Infrastructure Sectors, June 2009, available Here))

It is a settled law that a public authority cannot act arbitrarily ((Article 14 prohibits the Government and Government instrumentalities from arbitrarily choosing a contractor at its will and pleasure; it has to act reasonably, fairly, and in public interest in awarding contract.)) in the matter of awarding contracts. There is a public element in all its activities and it must confirm to the mandate of Article 14 of the Constitution and observes the tenets of equality and the principle of fair action. ((T.R Desai, Law relating to Tenders and Government Contracts (Universal Law Publishing Co. 2nd Edition, 2009) ))

In this article an attempt has been made to analyse nature and scope of tenders ((Tenders for procurement of goods, services or works etc.)) issued by Government and Government instrumentalities and their power to cancel tender/bid process where only single bid has been received in the light of guidelines issued by the Central Vigilance Commission ((The Central Vigilance Commission is a body established by the Government of India in 1964 in order to guide and advise the Government of India and government agencies in the field of vigilance in order to prevent corruption in government activities. The Central Vigilance Commission acquired a statutory status with the promulgation of an ordinance with effect from 25th August 1998 and began to be governed by its own statute, namely the Central Vigilance Commission Act, 2003, which was enacted and came into effect on September 11, 2003. Vide GOI Resolution on “Public Interest Disclosure and Protection of Informer” dated April 2004, the Government of India has authorized the Central Vigilance Commission as the “Designated Agency” to receive written complaints for disclosure on any allegation of corruption or misuse of office and recommend appropriate action against erring officials.)) and rulings of various High Courts and Supreme Court of India.

A CURIOUS CASE OF SINGLE BID

Whether a Sole bidder can be granted the tender in an open bid or not?

Legislation and Guidelines involved:

  • The Constitution of India.
  • The Indian Contract Act, 1872.
  • Central Vigilance Commission Circular No. 4/3/07, Tendering process- Negotiations with L-1 – dated 03.03.2007.
  • Central Vigilance Commission Circular No. 31/11/08, Time bound processing of procurement dated 06.11.2008.
  • Ministry of Shipping, Road Transport and Highways, Department of Road Transport and Highways Circular No. NH 14019/4/2008-P&M, Acceptance of single tenders for National Highway works.
  • First we deal with the Central Vigilance Commission (Hereinafter referred to as “CVC”) guidelines dealing with single bid:

CVC GUIDELINES ON SINGLE BID

The CVC guidelines on single bid can be summarised as follows:

  • In general, single bid or tenders are not acceptable in the first instance.
  • If there is only one bid even after re-tendering, there is need for detailed justification to accept the single tenderer or single bid with the approval from the competent authority.
  • There should be no negotiations with the bidder at all. However, In cases where a decision is taken to go for re-tendering due to the unreasonableness of the quoted rates, but the requirements are urgent and a re-tender for the entire requirement would delay the availability of the item, thus jeopardizing the essential operations, maintenance and safety, negotiations would be permitted with L-1 bidder(s) ((L-1 means lowest bidder, where tender is based on grant or lowest price, and H-1 means highest bidder, where tender is based on payment of premium to the Government, discovered or selected through tendering process or bidding process.))for the supply of a bare minimum quantity. The balance quantity should however be procured expeditiously through a re-tender, following the normal tendering process. ((Central Vigilance Commission Circular No. 4/3/07, Tendering process- Negotiation with L-1 – dated 03.03.2007))

JURISPRIDENTIAL ANALYSIS

In Tata Cellular v. Union of India ((AIR1996SC11)), the Hon’ble Supreme Court observed that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. Further, the Court clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. However, if the said power is exercised for any collateral purpose the exercise of that power will be subject to judicial review and could be struck down by the Court.

The Hon’ble Supreme Court of India in Rajasthan Housing Board and Anr v. G.S Investment and Anr, ((2007 (1) SCC 477))held that in case of Government tenders the highest bidder has not acquired any vested right to have auction concluded in his favour and auction proceedings could always be cancelled.

Further, Hon’ble Supreme Court of India has decided in Ramchandra Murarilal Bhattad and Ors v. State of Maharastra and Ors, ((AIR 2007 SC 401))held that the Power has been exercised by the Authority in cancelling tenders so as to enable it to have a re-look of entire project, for the Some reasons may be required to be assigned for rejecting the bid, but in instant case, no reason was required to be assigned as there has been a change in the policy decision.

In State of Orissa and Ors. v. Harinarayana, ((AIR 1972 SC 1816))Hon’ble Supreme Court held that there is no concluded contract till the bid was accepted. By merely giving bids, the bidders had not acquired any vested rights.

Scope and Extent of Judicial Review

In few leading cases ((Tata Cellular v. Union of India (1994) 6 SCC 651, Shimnit Utsch India Pvt. Ltd. and Anr. v. West Bengal Transport Infrastructure Development Corporation Ltd. and Ors. MANU/SC/0382/2010, Meerut Development Authority v. Association of Management Studies and Anr. (2009) 6 SCC 171, Villianur Iyarkkai Padukappu Maiyam v. Union of India and Ors. (2009) 7 SCC 561, Reliance Airport Developers Pvt. Ltd. v. Airports Authority of India and Ors. (2006)10SCC1, Master Marine Services (P) Ltd. v. Metcalfe and Hodgkinson (P) Ltd. and Another (2005) 6 SCC 138, Global Energy Ltd. and Anr. v. Adani Exports Ltd. AIR 2005 SC 2653, Directorate of Education and Others v. Educomp Datamatics Ltd. and Others AIR 2004 SC 1962, Ramana Dayaram Shetty v. The International Airport Authority of India and Ors. AIR 1979 SC 1628.))the Supreme Court has examined contractual powers of the Government through bidding process and the extent of power of judicial review; following broad principles were culled out:

  1. Public auctions are held to obtain the best possible price.
  2. An invitation to tender is not an offer, but an attempt to ascertain whether an offer can be obtained with a margin.
  3. The right to refuse the lowest or any other tender is always available to the Government. That there is no concluded contract until the bid is accepted by a communication. ((Under section 5 of the Indian Contract Act, 1872, a proposal may be revoked at any time before the communication of its acceptance is complete against the proposer, but not afterwards.))
  4. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
  5. The principles laid down in Article 14 of the Constitution have to be kept in mind. However, the modern trend points to judicial restraint in administrative action.
  6. The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
  7. The terms of the invitation to tender (tender document) cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
  8. The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principles of reasonableness, ((Lord Diplock in Council of Civil Services Unions v. Minister for the Civil Service [1985 (1) AC, 374] held that If the decision impugned is so outrageous in its defiance of logic or accepted norms of moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it, then it may be said that the decision is unreasonable. This is known as test of “Wednesbury unreasonableness“. Also see, Hughes v. Deptt. of Health and Social Security 1985 AC 776, R. v. Secretary of State for Transport, Ex parte Richmond upon Thames London Borough Council and Ors. (1994) 1 All E.R. 577.))but must be free from arbitrariness not affected by bias or actuated by mala fides.
  9. Quashing decisions may impose heavy administrative burden on the administration and lead to increased and un-budgeted expenditure.
  10. If the power to accept or reject a tender is exercised for a collateral purpose it is always open to judicial review and can be struck down.
  11. The power of judicial review in the matters relating to tenders is very limited and unless special features are placed, the Court shall not interfere and the power of judicial review cannot be stretched to protect the private interest of contractor. ((Jagdish mandal v. State of Orissa, (2007) 14 SCC 517.))

The Hon’ble Supreme Court in Air India Ltd. v. Cochin International Airport Ltd., (((2000) 2 SCC 617))suggested that ‘even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere.’

The High Court of Patna in Umesh Kumar Paswan and etc. v.Union of India and Ors, ((MANU/BH/0527/2009))while deciding on the issue of single bid held that the whole purpose of issuing tenders and having open bid is for the sole purpose of getting the best competitive price and if on the face of bids received, it is apparent that the aforesaid purpose is not satisfied then the bids are not bonafide and must not be accepted by the authorities.

The High Court of Karnataka in Mahendra Labs Pvt. Ltd. v. The Appellate Authority/Principal Secretary to Government Animal Husbandry and Fisheries Department, Government of Karnataka, ((MANU/KA/0618/2009))held that if the tender accepting authority feels that the rates quoted by the lowest tenderer, which is also a sole tenderer, is also on the higher side, it is open for the authority to reject the same. Further, the Court would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias.

Legitimate Expectation of Single Bidder

The Hon’ble Supreme Court in Union of India v. Hindustan Development Corporation, ((AIR 1994 SC 988))held that the principle of legitimate expectation does not create any crystallized right in the favour of bidder.

The Hon’ble Delhi High Court in TDI International India Ltd. v. Airports Authority of India and Anr, ((MANU/DE/1083/2004, 115 (2004) DLT 139))on the question of Legitimate Expectation of single bidder held that the protection of legitimate expectation is not available to a single bidder where an overriding public interest required otherwise.

Acceptance of Single Bid

The Hon’ble Delhi High Court in Virendra Kapoor v. Airport Authority of India, ((Writ Petition (Civil) No.8529 of 2008.))held that while deciding on the issue of acceptance of single bid has laid down following principle:

It would generally not be advisable to cancel a tender merely because only one offer has been received (as long as it is a valid offer).
The single bid should not be financially depressed.
There should not be real prospect of getting a much higher bid. (If there are prospects of getting much higher bid, then the administrative authority can set aside the tendering process and call for a fresh tender).
The decision taken by the authority should not be arbitrary and must not be designed to achieve any collateral purpose.
Therefore the complementary view of this principle would be the authority with detailed justification can accept the tender of a single bidder only in some exceptional circumstances. Furthermore, under Section 5 of the Indian Contract Act, 1872, a proposal may be revoked at any time before the communication of its acceptance is complete against the proposer, but not afterwards.

CONCLUSION

In view of above, keeping in mind objectives behind CVC Guidelines and rulings of the Supreme Court and various High Courts, it is submitted that it is an acceptable norm to accept single bidder/tender. However, subject to detailed justification in the support of acceptance of single bid.