Tag: indianlaws

Introduction

Communalism was an element of Indian history before Indian independence. It did, however, develop fiercely in India’s contemporary politics, driven by British colonization. The emergence and development of communalism have their unique histories. In reality, the British tactic of “divide and rule” included communalism, which may be dated back to the period before independence. Hindus and Muslims came together during India’s first war of independence [1857] to drive away British Empire. The British put an end to the movement and later began using the “divide and rule” strategy to incite Muslims against Hindus and vice versa. Communalism is employed in a variety of ways to obtain a political benefit or to cause community conflict.

India’s religious and cultural diversity inspires communalism as a political notion. It has been used as a political propaganda weapon to incite communal animosity and violence among communities based on religious and ethnic identity. It doesn’t take much intelligence to notice that communalism is rapidly increasing in India. Leaders connected to the current administration have called for the annihilation of Muslims; meanwhile, what are supposed to be more moderate voices on that side are raising a number of concerns that target Muslim daily life, such as their call to prayer, the wearing of the hijab by Muslim women, and the sale of Halal meat.

Attachment to a religious community does not constitute communalism. A person’s religiosity toward a community does not imply communalism. However, employing a religious community against other groups and the entire nation is communalism. In contemporary society, communalism is blind adherence to one’s own religious group. It is characterized as a weapon for or against mobilizing people through communal service appeals. Dogmatism and religious fanaticism are linked to communalism.

Factors behind Communalism prevalence in India

The Indian Constitution guarantees citizens several essential rights (i.e. individuals). In the case of minorities, however, the entire community has been granted fundamental rights under Articles 28, 29, and 30, which provide that they are free to administer their own educational institutions and have the right to preserve their own culture. However, these rights are employed above and beyond individual rights by personal law boards governed by their own community laws. As shown in the Shah Bano case.

There is also animosity toward such personal rules, and there is growing support for a uniform civil code, which is also referenced in Article 44 of the Indian constitution’s Directive principle for states. This will assist to bridge religious divides. In the lack of a uniform civil law, all communities are perceived to have conflicting and contradictory interests. As a result, community-based pressure organizations bargain on behalf of their own community. These communities struggle for power and resources at the political level. This competitiveness leads to huge wars. Politicians attempt to convert these communities into vote banks, and various communities become watertight compartments.

Since its independence, India has pursued the notion of nation-building based on secularism. Even after 68 years of freedom, India is still on fire from communalism. However, there are several explanations for this. However, just a few of them have been explored here, with the awareness that the causes that play a part in the maintenance of communalism are:-the first religious, and the second political. The third one is socioeconomic, and the fourth is global.

In the first case, religious fundamentalism should be held accountable for communalism. After all, fundamentalists believe that “our belief alone is real” and that “the rest is wrong or inadequate.” According to this mindset, when members of any religious group, sect, or sub-sect engage in their activities, they are bound to clash with others. The reason is self-evident. They lack tolerance, which is essential in a country like India, which has many distinct religious sects. They become the source of conflict, hostility, and strife.

Politicians have also played a major part in escalating communal tensions in India. Politics was at the heart of India’s agonizing partition in 1947 in the name of a specific religious group. However, even after paying a high price in the form of division, we may discover political parties or their followers directly or indirectly involved in many subsequent riots. Along with this, the strategy of appeasement, selection of candidates based on community, sect, sub-sect, and caste, and inflaming religious feelings before elections all contributed to the emergence of communalism. These abuses are still being carried out, and the country is suffering as a result. Many negative consequences of these actions can be seen.

Though India’s socioeconomic conditions have improved since independence and economic reforms since 1991 have been essential in improving such situations, there are still numerous obstacles in front of Indian society that pose a danger to its variety. Population, poverty, illiteracy, and unemployment all produce a lot of compulsions, especially among the younger generation. As a result, many members of the younger generation, who are unemployed and living in poverty, become involved in evils such as communalism. Efforts to eradicate poverty, illiteracy, and unemployment are not yielding the expected results.

External forces (including non-state actors) also have a role in exacerbating and escalating the communalism problem. We cannot name any specific country in this respect, but researchers and people who think about this issue on a regular basis have underlined this fact.

The following are the primary causes for external factors’ engagement or influence in riots:

1. To create an unstable environment in order to become socially weak;
2. To wish for compassion from minorities;
3. attempting to undermine a foreign country’s economic system; and
4. In order to mask their own inadequacy

Outcomes of Communalism

The most serious consequence of communalism is communal tensions or rioting. When religious issues are politicized, it leads not just to communalism but also to fascism as well as to communal riots. Riots that occur as a result of conflicts between two or more communities’ communal interests are referred to as communal riots.

Communal violence is a phenomenon in which members of two distinct religious communities band together and attack one other with sentiments of hatred and animosity. The revival of Hindu-Muslim economic struggle, particularly among the poor and middle classes, has fostered communalism. In addition, social media has proven to be an efficient instrument for sharing information about communal tensions or riots in any section of the country.

The absence of interpersonal confidence and understanding between two groups frequently results in perceptions of threat, harassment, fear, and significant risk in one community towards the members of the other community, which in turn leads to fights, hatred, and rage phobia. We are all aware of the consequences of communism. The poor are the genuine victims of mass massacres; they lose their homes, their loved ones, their lives, their livelihoods, and so on. It violates human rights from every angle. Sometimes children will lose their parents and become orphans for life, with no one to care for them.

In addition to having an impact on society, it is a danger to Indian constitutional norms that encourage secularism and religious tolerance. In that circumstance, citizens fail to fulfil their essential responsibilities to the nation. It poses a danger to the nation’s unity and integrity as a whole. It just spreads hostility in all ways, splitting society along communal lines. Aside from this, minorities are viewed with mistrust by everyone, including state officials like as police, paramilitary forces, the army, intelligence services, and so on. There have been several occasions where members of this group have been harassed and jailed, only to be freed guilt-free by court rulings. There is no mechanism for compensating such victims for lost livelihood income, social humiliation, or emotional distress to their families.

Such things are a bump in the road for society and an obstacle to its progress. This is also one of the reasons that India is still classified as a “developing nation,” because such activities frequently harm the country’s human resources and economy. Again, it takes years for individuals and impacted areas to recover from the horrors of such violence, which has a profound influence on the brains of those who have experienced it. They have been emotionally shattered and insecure their entire lives.

Some Infamous Cases of Communal Violence in India

• Partition of India, 1947-Following partition, millions of people was compelled to relocate from both sides of the border. Hindus in Pakistan and Muslims in India were massacred in large numbers, women were raped, and many children were orphaned. There was hatred everywhere, and violence saw nothing but bloodshed. Later, it became a refugee problem, and their rehabilitation became one of the most difficult challenges for independent India.
• There were no major religious riots until 1961 when the Jabalpur riots rocked the country more because of the economic struggle between a Hindu and a Muslim bidi producer than any electoral competition.
• In the 1960s, a series of riots erupted in the eastern section of India, mainly in Rourkela, Jamshedpur, and Ranchi, in 1964, 1965, and 1967, in areas where Hindu refugees from then-East Pakistan were being placed.
• In April 1974, violence erupted in a chawl, or tenement, in Mumbai’s Worli district as police attempted to disperse a Dalit Panthers gathering that had become violent after fights with the Shiv Sena.
• After Indira Gandhi’s death in October 1984, anti-Sikh riots erupted in Delhi, Uttar Pradesh, and other regions of India, killing around 4000 Sikhs.

One thing is consistent in all of these and hundreds of previous riots: the vast majority of casualties had nothing to do with community animosity. In summary, perpetrators of violence and victims of violence are distinct individuals. Similar to the preceding list, there are many others that have impacted the masses and killed individuals on a big scale. Bombay bombing in 1993, Lashkar-e-Toiba attack on Akshardham in 2002, and Varanasi bombing in 2006 are only a few examples of anti-Hindu incidents.

Steps to be taken to deal with Communalism

Communalism is a crippling paralysis that must be addressed. Communal Riots are a constant danger to religious unity in our country. They must be dealt with and handled efficiently. A few recommendations in this respect may be made. While making proposals is simple, putting them into action is a significant difficulty. There is a need for reform in the current criminal justice system; quick trials and proper recompense for victims may serve as deterrents.

The increased presence of minorities and underrepresented groups in all branches of law enforcement, as well as training of forces on human rights, particularly in the use of guns in compliance with the UN code of conduct. Codified standards for administration, specialized training for the police force to deal with communal riots, and the establishment of specific investigative and prosecuting organizations can all help to reduce serious communal discontent.

Value-oriented education, with a focus on the values of peace, nonviolence, compassion, secularism, and humanism, as well as developing scientific temper (enshrined as a fundamental duty) and rationalism as core values in children in both schools and colleges/universities, can be critical in preventing communal feelings. Media, films, and other cultural outlets can have an impact on encouraging peace and cooperation. Though all of these practices are popular in India, there is definitely a need for development in this area.

Thus, concerted efforts are required to address the problem of communalism in India. Everyone must carry out their responsibilities. If we do this, there will undoubtedly be harmony. Everyone will benefit. This must be done; it was Mahatma Gandhi’s ambition for a free India.

Conclusion

Communalism has taken a toll on Indian residents and has, directly and indirectly, harmed many families. The communal problem should be addressed via communication and understanding. Steps should be done to encourage unity through cultural exchange programmes. Globalization has also brought the world closer together and contributed to the reduction of communalism in several nations, including India.

References

1. Communalism – Definition and its Types (unacademy.com)
2. Communalism – ONLYIAS – Nothing else | UPSC IAS EXAM PREPARATION
3. Communalism (drishtiias.com)
4. 6 Major Social Issues in India: Causes and Measures (sociologygroup.com)
5. Ahuja, R. (2014). Social problems in India. Jaipur: Rawat Publications.

This article is written by Devishee Arora, a 4th-year B.COM LLB (Hons.) student at Amity Law School, Noida

INTRODUCTION

India is a democratic country; therefore, the people of the country are its superheroes. The government, constitution, laws, and others, as such, all exist for the people and by the people. So, laws are meant for the citizens of the country, and they can be shaped by the people. In India, the law-making process is carried on by the central or union government for the whole country and by each state government for each state, as well as the local municipal councils and districts for their respective districts. The Lok Sabha and the Rajya Sabha are India’s two legislative houses, and for a law to be passed in India, it must pass through the two legislative houses of the parliament of India. A bill is used to present legislative proposals to either house of the Indian Parliament.

 A bill is a draught legislative proposal that, after being approved by both chambers of parliament and the president, becomes law. A law is not passed or enforced as such. It is first crafted as a bill by the legislative houses, and before it is enforced or passed, the bill must be passed or approved by both houses. A bill is a drafted legislative proposal that, after being approved by both chambers of parliament and the president, becomes law. After the bill has been drafted, it must be publicized in the newspapers and the people must be given a democratic opportunity to comment. The legislature must adopt a bill before it becomes a law, and in most situations, the administration must also approve it. A bill is referred to as an act of the legislature or a statute once it has been made into law. The President can assent, withhold assent, and send the measure back for consideration, and he can also sit on it if both houses of Congress concur. The bill then passes both houses if they agree. The president will then sign this agreed-upon bill into law, making it applicable throughout the country. 

DEMOCRATIZATION IN LAW-MAKING       

As a democratic country, there must be public participation in the law-making process. As a democratic country, there must not only be the right to franchise and elect their representative but the people must also participate in the law-making process. In the democratization of law-making, the central government must publish the details of the legislation. The drafted bill must contain the provisions, its impact on the environment and the lives of the affected people. The public must be given 30 days to comment. Comments are submitted to the parliamentary standing committee to amend the necessary provisions in the bill to make the bill people-friendly.

THE PRE-LEGISLATIVE CONSULTATION POLICY

The Pre-Legislative Consultation Policy was developed by the Central Government in 2014. This policy gives individuals like you and me the opportunity to participate in the drafting of laws before it is to made or enforced as law in our country. According to this policy, the government must give a chance to all the people of the country to participate in the process of law-making so that the law made by the government is for all. Since the law made by the government will be for the good of the public and since the people themselves are involved in the law-making process, the law made will not be violated on a large scale and will be followed by the majority of the population. This ideology of law-making is successfully achieved by the government publishing the proposals made by the legislative assembly to the general public to receive their feedback on any draught or proposed legislation for at least 30 days. Public consultation is the procedure where you inform the government of your opinions on how a policy might affect you.

These requests for comment must include the proposed legislation or at the very least information about it, such as its financial ramifications and effects on the environment, citizens’ lives and livelihoods, and their fundamental rights. The main objective of the Pre-Legislative Consultation Policy is to assist citizens in legitimate and expanding demands for more transparency from the government. This policy is considered to be the most effective tool for citizens to participate in the process of law-making in our country in a democratic manner.

It is important that laws be drafted in a democratic form. In the first place, we, the people, elect our representatives and they make the laws for us in parliament, and we the people play a crucial role in shaping those laws made by them. They also ensure that the final policy or law drafted is relevant and serves the people for whom it was drafted.

It is essential that we have policy tools like PLP in a nation like ours with such a wide range of interests so that all groups feel as though their opinions are given the proper respect and recognition. To make sure that the government receives useful suggestions from those whose lives will be impacted by its laws, consultation with the pertinent stakeholders is essential.

The Muslim Women (Protection of Rights on Marriage) Bill of 2017, which forbids the practice of triple talaq, is a clear illustration of this. The appropriate organizations weren’t appropriately contacted before the measure was enacted. One of the many errors in the bill is that triple talaq was stated as a cognizable offence. Another alarming development is that the police were given the right to hold Muslim men without any judicial review or inquiry into whether the subject actually warranted detention. In essence, this meant that the rules were still in effect even though neither spouse had filed a formal complaint. Additionally, the government did not draught the measure after engaging with concerned representatives of civil society, such as advocates for women’s rights, defence attorneys, or even Muslims. In this case, the bill or the law passed by the legislative assembly would have been drafted more effectively if a pre-legislative consultative procedure had been used

The Transgender Persons (Protection of Rights) Bill, 2016, which drastically curtailed the rights of transgender people as recognized in the seminal case of NALSA v. Union of India¹, serves as another illustration of how the government neglected to engage with concerned community members. The transgender community essentially rejected the Bill outright because they felt it was not in their best interests because it was not adequately discussed and consulted with during the bill’s development. In short, the Bill incorrectly lumps intersex people and transgender people together, seeing them as interchangeable, and it neglected to adequately address significant issues at the time, like the repeal of Section 377 of the IPC. It also did not respond to the Trans community’s widespread call for inclusive marital and inheritance rules. Another grievous omission was the failure to gender-neutralize offences in order to properly exclude members of the transgender community. In this instance, much more effective legislation could have been drafted if a pre-legislative consultative procedure had been used, in which the Trans community had been properly informed and consulted before the Bill was drafted.

Kerala has set an example for Pre Legislative Consultation Policy. In Kerala, the state ensures public participation to draft its police law. The draft bill was placed on the Kerala police website inviting feedback from the public at large. When the draft bill was introduced in the house at that time there was a district-level town hall meeting. A select Committee was set up and amendments were made which included people-friendly provisions. And Kerala Police Act was passed.

CONCLUSION

There will be effective law-making only when the public also participates in the law-making process. The Second Administrative Reforms Commission has emphasized that public participation in law-making is vital for the functioning of the law-making process. The policy-making and law-making process should be available in regional language also so that the people would understand the law and suggest some changes in the law.  Public comment is essential and necessary changes should also be made by the legislature. Our country should develop a social audit legislation wherein there must be a legal obligation on policymakers to consult the public.  

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CITATIONS

1. SC Writ Petition (Civil) No. 400 of 2012

This article is written by Sree Lekshmi B J; third year law student from Sastra University, Thanjavur.

ABOUT THE FIRM

SRB OJAS is a niche-service law firm in Pune formed on core principles of excellence and professional ethics. SRB-OJAS has a highly motivated team of lawyers with multidisciplinary expertise in Corporate and Criminal law. With immense experience in criminal and commercial litigation spanning decades, SRB-OJAS pioneered the international standards of corporate law services in Pune. With this unique combination of a wide spectrum of capabilities, we ensure the best legal solutions are provided under one roof.

INTERNSHIP DESCRIPTION

• No. of Position(s): 2 (two)
• Duration: minimum 3 months
• Qualification: Law students

HOW TO APPLY?

Interested candidates can send their applications to admin@srb-ojas.in and mention in the subject that the application is for a long-term internship.

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ABOUT THE FIRM

Saikrishna & Associates is a Tier-1 full-service Firm focusing on Intellectual Property, Telecommunication Media & Technology, Corporate Law & Competition Law verticals backing up the Firm’s other practice areas. Founded in 2001, the Firm’s 19 Partners & Associate Partners as well as 100+ lawyers and Engineers deliver top-notch, & dedicated services to a diverse array of Indian and International clients.

The Firm’s Litigation/Dispute Resolution, Prosecution, and Enforcement teams join with the Commercial, IP, TMT, Corporate & Competition law teams to provide innovative solutions catering to the client’s business and IP objectives. The Firm is highly ranked for its industry and domain-specific expertise basis its industry teams/ practice groups which span the Media & Entertainment, Telecommunications & Electronics, Pharma & Life Sciences, Software & Artificial Intelligence, Automotive, FMCG & Retail, Print-Publishing, Real Estate, and Energy Sectors.

JOB DESCRIPTION

1. Designation: Associate (Commercial IP Team)
2. PYQ: 1-4 Years
3. Qualification: Law Graduates
4. Location: Noida Office
5. Responsibilities and Experience:

• Drafting and negotiating content acquisition agreements, talent agreements, production agreements, copyright assignment agreements, content licensing agreements, software licensing agreements, etc.
• Prior experience in working with production houses or OTT platforms would be great.

HOW TO APPLY?

Interested candidates may email their CVs along with cover letters to hr@saikrishnaassociates.com with the subject line: ‘Commercial IP – Noida – Associate Position’. The email should be addressed to Madhubani Chakraborty.

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INTRODUCTION

Organ donation is the process of obtaining an organ or portion of an organ from a live or deceased person and then transplanting it into another human being (OD). After passing a psychological and medical examination, individuals can donate 25 different organs and/or tissues, according to sources. According to the Organ Procurement and Transplant Network (OPTN, 2015), a single donor’s organs might potentially save up to eight lives. The most frequently transplanted tissues are corneas and musculoskeletal grafts, whereas the most frequently transplanted solid organs are kidneys, livers, and hearts. Over the past 20 years, the rate of organ transplantation has gradually risen. Although it has produced good results in kids and teenagers, an increase in the number of elderly transplant patients who also have co-morbid conditions poses a difficulty.

BRIEF HISTORY

In India, organ transplantation has a shorter history than in the world’s most developed nations. In the 1970s, the first kidney transplant was carried out in India. The number of transplants increased in the 1980s and early 1990s, although they were mostly limited to kidney transplants using live donors in a few urban locations. Kidney transplantation activities gradually increased as new facilities opened and the pool of qualified personnel grew. But this resulted in the well-known kidney trafficking in India in the 1980s, which received extensive media coverage. Patients from other countries began to swarm to India for transplants from paid donors.

The Central Government established a commission in 1991 to provide a report that would serve as the foundation for legislation controlling organ transplantation throughout India in light of the country’s continuing kidney scandals. Additionally, it was done in order to provide a clearer explanation of the term “brain death.” The Indian government passed The Transplantation of Human Organs Act (THOA) in 1994. The Transplantation of Human Organs Rules, which were last updated in 2014, was also adopted in 1995, expanding the scope of donation to include tissues for transplant. The Act criminalized the sale of organs, formalized the idea of brain death in India, and permitted deceased organ donation using the brain stem of the deceased.

HOW ORGAN DONATION WORKS?

When an individual’s organ starts to fail or deteriorate and they need a transplant to survive. If a person is a good candidate for a transplant, a transplant centre will undertake a comprehensive evaluation and add them to the National Transplant Waiting List. The clock starts to run and the wait for an organ begins once the person is added to the list. It is a mechanism that matches donors with patients on waiting lists. Blood type, body size, the severity of the patient, proximity to the donor, tissue types, and length of the waiting list are used to categorize donors. Organs are never matched based on: 

• Race
• Cast
• Gender
• Economic status
• A person with a special status in society.

TYPES OF ORGAN DONATION

There are mainly 2 types of Organ donation:

1. Living Donor: A living donor is an adult who has given their agreement to have their organs or tissue removed while they are still alive. Legally, a person may donate:
   • Only one Kidney, as the recipient’s body, may still operate normally without it.
   • A fraction of the pancreas, up to half of it, can effectively carry out pancreatic activities.
   • A fraction of the pancreas, up to half of it, can effectively carry out pancreatic activities.
   • Both the donor and the recipient’s liver can regenerate over time, with the other section of the liver being able to do so.
2. Deceased Donor: (Donor who has passed away) Organs may be donated when a person has experienced cardiac death (when the patient’s heart stops pumping) or brain death (total loss of brain function). If the person has achieved the age of majority and is ready to give their organs after death, their agreement can be obtained while they are still alive (before death).
3. Even if the patient had previously given his approval for his organs to be donated during his lifetime, the Act mandates that the hospital ask a close relative or the person legally in charge of the body’s custody for permission once the patient is confirmed brain dead.

BRAIN DEATH

The term brain death refers to a condition in which all of the brain’s functions have ceased to operate and cannot be restored. Despite this, the ventilator’s ability to provide oxygen may allow the heart to continue beating. But in this circumstance, it is safe to declare the patient dead. The THOA defined brain death as the stage at which the brain-remaining stem’s functions have completely stopped. The panel of medical experts must certify the same. Before doctors can declare a patient to be “brain stem dead,” THOA Rules list a few prerequisites that must be met. The medical expert board must proclaim it following two thorough examinations of the body spaced around six hours apart.

INDIAN LAWS

The donation of human organs is governed by legislation passed by the legislature. The law allows both live and deceased people to donate their organs. A human organ cannot be sold for profit or with other incentives. This is against the law. Organ transplantation is governed by the following legal provisions. The primary legislation, The Transplantation of The Human Organs Act, 1944 covers organ donation and transplantation (THAO). It sought to uphold appropriate regulations for the removal, preservation and transplantation of organs for medical purposes. The primary responsibility of the law is to stop transplant commercialism. The state of Maharashtra, Goa, and Himachal Pradesh first suggested the necessity for such an Act, and all states except Andhra Pradesh and Jammu & Kashmir later agreed. However, the incidence of human trafficking and the sale of human organs for profit remained unchanged. As result, the need for the modification to correct the Act’s inconsistencies was felt in 2009. The Indian Parliament approved the change in 2011, and rules were written for it in 2014.

KEY ELEMENTS OF THE LEGISLATION

• A specific group of experts who make up the authorization Committee must be organized at the state and centre levels. The committee would be accountable for keeping track of information about available organs and approving requests for organ transplantation.
• Only the registered medical professionals in authority will be given the responsibility of executing the procedure to remove the organs from the deceased’s body.
• The Hospital where the transplant would be performed must obtain approval from the State Authorities in order to be recognized as an approved centre.
• Before the transplant is about to start, a person cannot be pronounced brain dead without the consent of a trained neurosurgeon.
• If no one in the family opposes, the relative may consent on behalf of the deceased.

PUNISHMENT UNDER THE ACT

1. According to Section 18 of this Act, any individual who has legal permission to remove a human organ or tissue may be penalized with up to 20 Lakhs as a fine and 10 years imprisonment. If the offender is a medical professional, the AA (Appropriate Authority) will submit his name to the State Medical Council, which will then take the required action. This may include deleting his name from the council’s register for three years for the first violation and permanently if they commit the offence subsequently.
2. According to Section 19, anyone involved in the commercial trading of human organs can be penalized with imprisonment for a time not less than 5 years but may not exceed 10 years, as well as being subject to a fine of not less than Rs. 20 lakhs but may not exceed Rs. 1 crore.
3. According to Section 20, any individual who breaches any other clause of this Act faces a sentence of up to five years in prison or a fine of up to 20 lakh rupees.

CONCLUSION

One of the greatest advances in medical science and technology is organ transplantation. The benefits of this accomplishment, though, might not be accessible to everyone, is in its current form, a cadaveric donation in India which mostly serves the wealthy and only supports a very small proportion of patients who seek it. The impoverished have also been taken advantage of it to an extent. It is a sad fact that despite being in effect for 15 years, the THO Act has not been able to prevent the commercial trade in organs or promote organ donation.

The best course of action in India is to spend money raising awareness about the deceased contribution and passing legislation requiring the donation unless someone opts out. The conservative mindset of society needs to shift, together with strict legislative requirements and their successful implementation, in order to close the enormous gap between the supply and demand of organs.

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This article is written by Aditi Jangid, first year law student from Delhi Metropolitan Education (Affiliated to GGSIPU).

About the Firm

“Cholamandal IP”, an Indian law firm with an international perspective, has been operational since 2016. We are based out of Chennai. Cholamandal IP is primarily engaged in Intellectual Property Rights cases and is proficient in dealing with Patent, Trademark, Copyright and Geographical Indicator registration, litigation and enforcement. The firm is also focused on Media Laws, Competition laws and Environmental laws. The firm has a team of determined and experienced attorneys, well-versed with Indian IPR laws.

The firm undertakes all issues relating to IPR law including filing and registration of Patent, Trademarks, Designs, Copyrights, Geographical Indication, Semi-Conductor Integrated Circuits and Layout Design, Protection of Plant Varieties and Farmer’s Rights and other IP tools along with various other issues relating to the protection of the IP rights and counterfeiting measures, drafting Licenses, Assignment, Registered User, Technology Transfer and other Confidential Agreements, issues relating to the IPR protection and the relevant counterfeiting measures, IPR related litigations at various levels, advising on protection and retention of Copyrights, advising on prevention of Piracy and Infringement, conducting legal due diligence, preparation and drafting of all documents/agreements, legislative and regulatory issues and approvals.

About the Internship

Duration: 15th July-15th August 2022

Mode: Online Internship

Eligibility

• Law students in their 4th and 5th year (5-year Program) and in their 3rd year (3-year Program).

Skills and Experience

• Good research and drafting skills.
• Keen interest in IP Laws.

How to Apply?

Interested candidates can send their updated CV to cholamandalip@gmail.com.

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About Kanooni Salah

Kanooni Salah is a Delhi-based fully independent litigation law firm dedicated to legal services. Their law firm has a versatile and efficient team of advocates/lawyers who are specially trained and have distinguished experience in their own specific area of law. Their team of advocates is divided into four tiers viz. trial court team, high court team, supreme court team, and back-office team. The back office team provides pleading and drafting services at every level to our clients. Their team believes that in the context of the present world economic order, the legal profession plays a more valuable and constructive role than ever before.

The changes in the economic climate in the world especially in India have brought about a change in the traditional role of the lawyer.

About the Internship

The selected intern’s day-to-day responsibilities include:

• Work on law research & drafting
• Assist with court work
• No. of Position(s): 3

They are looking for a person who wants to learn some serious litigation skills.

Eligibility

• Mode: offline/in-office
• can start the internship immediately
• duration: 2 months
• have relevant skills and interests

How to Apply?

APPLY HERE

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INTRODUCTION

After independence, our nation was struggling to overcome many issues such as illiteracy, poverty, hunger etc. Due to all this, environmental issues were getting neglected by the government but with time, the people and authorities started to recognize environmental issues. With the advent increase in the rate of global warming, and rise in the sea level we are destroying our nation which is inherited us by our forefathers. If the situation continues to go like this, our future generation will not see what we are having today.

India is one of the countries which actively take part in environmental issues and one of the events is the UN- 2030 agenda is the global framework to eradicate poverty and achieve sustainable development goals by 2030. There is a total of 17 sustainable development goals and the agenda for the environment can only be resolved by establishing specific courts and tribunals for environmental issues. It has been ascertained that if environmental cases are to be considered, they must be based on scientific analysis, which is only possible with the assistance of experts and judicial officers. If this is followed, the judicial system will become more efficient in resolving environmental issues. For tacking cases related to this environment, the national green tribunal was established under the national green tribunal act, 2010. India is the third country to establish such a kind of special body to deal with environment-related ted issues followed by Australia and New Zealand.  

THE IDEA FOR CREATING ENVIRONMENTAL COURTS IN INDIA

Due to the huge escalation in the cases related to the environment, there was a form of an increase in the rate of delivering justice in the environmental cases. The national green tribunal was established on 18^th October 2010 under the nation green tribunal act, 2010. This statutory tribunal was set up with the central objective of resolving disputes related to the environment. In the Bhopal gas tragedy case^[i] in which, Mc Mehta filed a writ petition under Articles 21 and 32 of the Indian Constitution seeking the closure of all Shriram Food and Fertilizers factories engaged in hazardous substances and located in the congested area of Kirti Nagar. During the petition before the court, there was a gas leak from one of the factories, which resulted in the death of an advocate, as well as other people being affected by the gas leak. This incident makes me think of the Bhopal gas leak disaster. Following that, factories were immediately closed. The bench of five judges, led by Justice PN Bhagwati, issued the rule of absolute liability, which means that if a factory deals with hazardous substances and the hazardous substances escape, causing the death of many people. The factory would then be liable even if reasonable care and protection were taken. As with absolute liability, there is no defence. The law must be amended as civilization advances. As a result, the court held the industry “totally responsible” and ordered that compensation be paid regardless of whether the injury was proven Further, in the case of the union of India V. Vimal Bhai, the supreme court raised the issue of difficulty in solving the technical environment-related issues and need for special environment court. Both these cases further aggravated the need for a separate environment court.

PRINCIPLES OF JUSTICE ADOPTED BY THE NATIONAL GREEN TRIBUNAL

The national green tribunal is not bound to follow any procedure provided by the Code of Civil Procedure and the Indian Evidence Act, 1872.

They follow the principle of natural justice, sustainable development, and the polluter pays principle,

Principle of natural justice

Natural justice revolves around the principle of ‘unbiased’ or ‘fairness’ Making an adequate and reasonable decision on a specific issue is what natural justice entails. It doesn’t always matter what the reasonable decision is, but in the end, what matters is the procedure and the people involved in making those reasonable decisions.

There are mainly three rules followed by the natural justice

1. First is the ‘HEARING RULE’, which states that the person or a party who is going to be affected by the decision then, he’/she will be allowed to express their point of view to defend themselves.
2. Second is the ‘BIAS RULE’ which states that the decision should be given by the judges fairly.
3. Last is the ‘REASONED DECISION’ which states that the judgement given by the court will be given on the reasoned ground

Sustainable development

The word sustainable development was first used in the Stockholm declaration, in 1972. Sustainable development means fulfilling the needs of the present generation without compromising the need of the future generation.

Polluter pays principle

The polluter pay principle is a common practice which means that the polluter who produces the pollution has to bear the cost for the harm caused to human health or the environment.

NATIONAL GREEN TRIBUNAL ACT, 2010:^[ii]REASON FOR THE ENACTMENT OF ACT

• One reason was the rate at which the resources are getting exhausted, factories are set up and increasing urbanization which further leads to the increase in the pendency of cases related to environmental issues. Due to this environment courts were set up including the national green tribunal.
• Article 21 which is the heart of the Indian constitution also includes the right to live in a healthy environment, which is also our fundamental right. Along with this, Article 48(A) which is the directive principle of state policies states, “the state should endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”
•  As a member of the United Nations Conference on Human Environment, India was obligated to provide very effective judicial and administrative proceedings, as well as to redress the liabilities under national laws for victims of environmental pollution and damage.
• To provide relief and compensation for the damage caused to life, property, and the environment.  

POWERS OF THE TRIBUNAL

The power of tribunal is conferred under the section 19 ^[iii]of the said act

• The tribunal has the power to hear and analyse the case and provide relief or compensation to the aggrieved person.
• Has the power to issue the commission for witnessing the documents.
• Has the power to dismiss the case if the case is found to be defaulted or in the case of ex-parte.
• It can also pass the interim order after listening to both sides of the parties.
• Under section 20 of the said Act, the tribunal has the power to order or grant any award to take step towards substantial development.
• Section 21^[iv] of the act states that decisions made by the majority of the tribunal’s members are binding on the aggrieved parties.

If the matter falls under any of these acts

• Wildlife (Protection) Act, 1972^[v]
• Indian Forests Act, 1927^[vi]
• Other tress prevention Act

Then, the national green tribunal doesn’t have any power in these matters. People can approach either to civil court or can file a writ petition under a high court or supreme court.

COMPOSITION OF NATIONAL GREEN TRIBUNAL

Under Section 4 of the act,^[vii] it is mentioned that what should the tribunal consist of

• An eligible full-time chairperson as defined under the national green tribunal act, 2009.
• 10 -12 judicial officers.
• The chairperson has the power to call any specialised person in the tribunal for assistance.
• The central government can notify the territorial jurisdiction that falls under a specific place of sitting.
• The central government along with the chairperson has the power to make rules and regulations for the tribunal.

The first chairperson of the national green tribunal was Justice Lokeshwar Singh.

BENEFITS OF NGT

• DEDICATED COURT FOR ENVIRONMENTAL MATTERS

The establishment of the national green tribunal helps to lighten the burden of the supreme court by handling cases related to the environment and providing them relief and compensation to the aggrieved person.

• ALLOWS SPECIALIZATION

NGT is composed of judicial officers and highly qualified professional and environmental experts who handle the cases judiciously and with expertise.

• TIME-BOUNDED DISPOSAL OF CASES

The tribunal has to dispose of the application within 6 months of filing the same.

• WIDER REACH

The quality of time spent on these issues could also be improved because, unlike the Supreme Court, the tribunal could have benches in various states, allowing all citizens equal access.

CHALLENGES

• LIMIT TO JURISDICTION

Wildlife protection act, 1972, Indian forests act, 1972, and other trees prevention acts don’t fall under the jurisdiction of the national green tribunal act.

• OBSTACLE TO DEVELOPMENT

NGT decisions have also been criticised and challenged because of their implications for economic growth and development.

• LOOMING VACANCIES

The lack of human and financial resources in NGT undermines the rule of NGT for disposing of the case within 6 months.

• LIMITED REGIONAL BENCHES

NGT is only found in major cities across India like Delhi, and Pune  However, environmental exploitation occurs in tribal areas of dense forest.

JUDGEMENTS

• In the case of Braj Foundation V. state of Uttar Pradesh, the Braj Foundation filed the case and asked the government to draft a memorandum of understanding for the practice of afforestation at the Vrindavan. The government contended that the advertisement was just an invitation to treat not a contract. But the national green tribunal held that the government must promote afforestation,
• In the case of Jeet Singh Kanwar V. the union of India, In this case, the petitioners are challenging the environmental clearance granted for the construction of a coal-fired power plant. Finally, it was determined that if the environmental clearance is not causing excessive environmental degradation, the project can be continued. However, the tribunal issued an award regarding the illegality of the environmental clearance due to the consequences.
• In the case of A.P. Pollution Control Board V. Prof. M.V. Nayudu (1999) case, With an appeal to the Supreme Court from the Environmental Court, the Supreme Court emphasised the need for a court that was “a combination of a Judge and Technical Experts” in the landmark case.
• In the case of Save Mon Federation V Union of India, the NGT stopped the hydro project worth rupees 6,400 cr to save the habitat of a bird. The NGT ruled that a December 2016 amendment to the EIA 2006 notification was a “ploy” (by the government) to get around the 2006 rules. Many projects were approved illegally, such as the Aranmula Airport in Kerala, the Lower Demwe Hydro Power Project and Nyamnjangu in Arunachal Pradesh, mining projects in Goa, and coal mining projects in Chhattisgarh were either cancelled or reassessed.

CONCLUSION

In conclusion, it is important to see the decision taken by the NGT as a path towards sustainable development, not as an obstacle to development. There should be a balance maintained between development and a healthy environment. Development depleting natural resources in a huge number will be in vain. It will not have any valuable meaning. If this keeps on going then, our future generation will not be lucky enough to see the resources we have today. We should follow the concept of sustainable development, i.e to utilize the resources in such a manner that they are saved for our future generations.

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CITATION

[i] 1987 SCR (1) 819.

[ii] National Green Tribunal Act, 2010

[iii] National Green Tribunal Act, 2010, Sec 19.

[iv] National green tribunal act, 2010, sec 21.

[v] Wildlife (protection) Act, 1972.

[vi]Indian forest act, 1927.

[vii] National green tribunal act,2010, sec 4.

This article is written by Prerna Pahwa, a student at Vivekananda Institute of Professional Studies, New Delhi.

Introduction

Spyware has always been a murky subject in terms of spying between governments. Spyware has been viewed as a critical component since it is thought critically to monitor and identify individuals who may be involved in illegal or terrorist activities. On the other hand, it is hugely controversial because, while ostensibly targeting criminal activity, such organizations or businesses may attack civil citizens or protestors in any region. This is an important point to remember since such meddling might result in a cyberwar or cyberattack, which could affect the political system of a country like Estonia. The Pegasus case has served as a forewarning of forthcoming cybersecurity concerns and the legislation that is required to address them.

Facts

• NSO group technologies is an Israeli firm that specializes in the investigation. This firm developed the spyware known as ‘Pegasus.’ It is a commercial company that monitors terrorists, drug traffickers, and other criminals, supporting government intelligence and law enforcement in overcoming encryption and technical hurdles.
• WhatsApp, which is owned by Facebook Inc., filed a lawsuit against NSO Group Technologies in California court on October 29th, 2019.
• According to WhatsApp, the malware ‘Pegasus’ deployed by the corporation compromised the phone systems of 1,400 users from all over the world. Users included civil society members, journalists, and Human Rights defenders from nearly twenty nations, according to the report.
• Because NSO Group was unable to respond or attend in court, the court issued a notice of default.
• It was claimed that the corporation used computer infrastructure and remote monitoring to insert spyware into customers’ devices via WhatsApp, causing a dangerous code to establish a connection between the users and the company without the consumers’ knowledge.
• NSO groups claimed that they were not properly served with notice of the action in a timely manner, in violation of international law.
• According to WhatsApp, multiple attempts were made to serve the notification on the firm.
• On March 6, 2020, NSO filed an application with a California court to have the previous decision overturned because the notice was not served on time, which is a violation of The Hague Convention due to WhatsApp’s incomplete service.
• NSO filed a separate case against WhatsApp in Israel on November 26th, stating that Facebook had disabled their private accounts. Facebook responded by stating that they had done so for security concerns.

Argument and Decision

NSO stated that the petitioner had breached international law by failing to provide legal notice of the action filed in a California court of law. They further claimed that they were just targeting the customer’s database provided to them and that they had no intention of targeting WhatsApp users. Furthermore, they asserted that the company’s customers are foreign sovereigns and that as a private agent for such users and of a foreign state, they are entitled to immunity under US law. It was also maintained that because they were acting as a supplier and were following the orders of their customers or the government, they could not be held accountable. WhatsApp contended that the NSO’s action was purposeful and intended to spy on those involved in social causes or other civil society members. It requested a permanent order from the court to prevent NSO from interfering with WhatsApp and Facebook’s computer systems. It claimed that NSO had broken the California Comprehensive Computer Data Access and Fraud Act and had trespassed on WhatsApp’s premises without permission. The District Court of California ruled in favor of WhatsApp in July 2020, and the litigation will move forward.

What is Pegasus

NSO, an Israeli cyber arms outfit, developed spyware to track a user’s mobile device. A link is provided to the user or targeted person in this spyware, and as soon as the targeted person opens the link, malware is injected into the device, allowing surveillance of the target. A new version of the same is said to be more powerful and destructive, and it doesn’t even need the user’s help. This spyware was produced by the organization to keep an eye on terrorists and
other criminals. To carry out such actions, the NSO collaborates with other governments and law enforcement agencies.

Effects

The charges stated by WhatsApp in its court application are extremely serious. According to WhatsApp, once this malware has been downloaded to a user’s smartphone, it can access emails, SMSs, passwords, location, network information, browser history, and device settings. The Citizen Lab claims that in addition to contact lists and emails, it has access to the device’s camera and microphone, allowing it to record all calls and messages. Pegasus has also allegedly used WhatsApp’s video and voice call functions, allowing the spyware to infiltrate the smartphone without the user’s knowledge.

Indian Laws governing Spyware Attacks

In India, the Pegasus case served as a wake-up call. Many Indian activists and civil society members were allegedly spied on by this spyware, according to WhatsApp. This calls into doubt India’s data protection and privacy laws. The ‘Right to Privacy’ was recognized as a fundamental right in the case of Justice Puttaswamy v. Union of India, and like any other fundamental right, it is subject to some limitations. There are four tests that can be utilized in privacy cases, according to Justice Chelameshwar:
Under Article 14, arbitrary state action may be subject to a reasonableness inquiry. The verdict makes it apparent that privacy, as a basic right, is a private aspect of citizens’ lives that must be preserved as a right under Article 21, which guarantees the right to life and personal liberty. Even when certain limits are imposed for the sake of public order or national security, people’s fundamental rights should not be violated. The Pegasus case demonstrated how spyware can compromise a user’s privacy and personal information. As a result, it is critical to analyze and implement a solid data privacy policy.

Conclusion

Spyware incidents like Pegasus represent the beginning of a new era of digital warfare. Such situations are likely to become more common as technology advances. It is critical that there are strict rules in place in the event of foreign unauthorised access to devices and spyware control limitations. The Pegasus case also emphasized the necessity for spyware regulation, as the goal of targeting users who are criminals or suspicion of criminal activity might extend to spying on persons like activists and protestors, threatening democracy and individual privacy in the long run.

References–
1. The Pegasus case and the laws concerning spyware in India – iPleaders

This article is written by Vidushi Joshi student at UPES, Dehradun.