Lost: Why?

Why did I get lost?

Was it my serenity, or,

Was it my insensitivity?

Was it my modesty, or,

Was it my laxity?

Was it my ignorance, or,

Was it my dimness?

Was I too much, or,

Was I too less?

Was I not who I promised to be?

[2017]

Juvenile Justice (Care and Protection of Children) Act, 2015

Introduction

The 2012 Delhi gang-rape was an unfortunate incident which shook the heart of the nation and struck a raw nerve. It brought out people on to the streets to put up a brave front against such vicious and brutal crimes that defy all bounds of morality. The incident also ignited national discourse on the question of juvenile delinquency as one of the prime accused in the case was a juvenile, just few months shy of turning eighteen – the age of majority under Indian law. The fact that this accused was tried in a juvenile court, thus escaping a death sentence, triggered a massive outcry on the inadequacy of the juvenile law to treat cases where such heinous crimes had been committed.

The negative public perception was captured perfectly through the words of Maneka Gandhi, when she remarked that “an adult crime by a juvenile required adult punishment, not leniency.”[1] The anger stirred by the treatment of the juvenile along with other factors such as the increase in juvenile crime rate and deplorable conditions of juvenile homes, forced the Parliament into deliberation and The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter referred to as “the Act”) took birth, ushering in a new era of juvenile justice laws in India.

The word juvenile is commonly used to refer to children, or people below the age of eighteen. The term in itself does not imply anything negative, nevertheless, it is commonly perceived to be attached with children who have committed a crime. In fact, the term juvenile although not defined in the Act, refers to all those who cannot be considered as adults. There are many jurists and academicians who have criticised the use of the word juvenile as it bears a negative psychological ring to it. The 2015 legislation has, to a limited extent, attempted to address these apprehensions by substituting its use. Yet, the title of the Act continues to carry the word juvenile, which shows the half-baked approach of the law-makers.

A Case Against Judicial Censorship

Introduction

The recent controversy surrounding the release of the Netflix documentary Bad Boy Billionaires and the airing of a show on Sudarshan TV have reignited the debate around the issue of judicial censorship in India. What has been even more surprising in the case of these two contentious programmes is the differing approach adopted by the Court, thus highlighting a grey area in the realm of censorship laws. A 49-second trailer of an upcoming show on Sudarshan TV, which had a deep communal overtone, caused a massive uproar on social media and led to the filing of numerous complaints with the Ministry of Information and Broadcasting. On the basis of these complaints, a notice had been issued to the channel by the Ministry for clarifying details over the content of the show with regards to the programme code of the Cable Television Network Rules, 1994. Meanwhile, the Supreme Court refused to stay the broadcast of the show.

The Delhi High Court, however, restrained[1] the channel from broadcasting it and subsequently refused to vacate the order. Section 5 of the Cable Television Networks (Regulation) Act, 1995[2] states that “no person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code”. Section 19[3] confers the power to prohibit a broadcast in public interest if it may promote disharmony or enmity between different religious or racial groups as well on the basis of case and community. In its reply to the notice, Sudarshan TV contended that its show could not be stopped from being telecast as that would amount to pre-censorship by the Ministry. The Ministry, after receiving the reply, went on to allow the telecast of the show[4]. It is to be noted that the Supreme Court, while refusing to interfere, had stated that “the Court has to be circumspect in imposing a prior restraint on publication or the airing of views. We note that under statutory provisions, competent authorities are vested with powers to ensure compliance with the law”.

In the Netflix case, a court in Bihar[5] stayed the release of Bad Boy Billionaires on a plea by Subrata Roy, one of those named in the documentary, as it found that Roy qualified the threefold test of prima facie case, balance of convenience and irreparable loss. Merely two days before this stay, the Information and Broadcasting Ministry had opposed Mehul Choksi’s (also portrayed in the documentary) writ petition in the Delhi High Court on the ground that “freedom of speech and expression is cardinal and should be given full play”. A civil court in Hyderabad also restrained[6] the release of the series in a petition filed by B. Ramalinga Raju, who is one of the four billionaires depicted in the Netflix show.

Remix: Where the Mind...

Where the mind is suppressed and hands are tied,

Where the truth costs a premium and lies are plenty abound,

Where mouths are shut and eyes are closed,

in silent support of the slaughter of the lamb.

Where the innocent poor are convicted,

by the guilty rich.

Where faith is blind, and, trust is governed by greed.

Where people are followed

but not their ideals.

Where humanity is divided by community

Where integrity is marred by religion

Where identity is scarred by colour

Into that joke of freedom, my People,

Our country has awakened!

Ramblings: Digital Apartheid

 

Introduction – The pandemic has caused a paradigm shift in the manner in which education is imparted across the country. Almost in an instant, schools and colleges embraced the internet and initiated classes on video-conferencing applications such as Zoom, Webex and Meet. While it was heartening to see how adaptive students and teachers have been to technology, online education has also led to a growing gulf between economically weaker students and their right of access to education. The Delhi High Court recently recognised these ill-effects of shifting education to an online medium as Digital Apartheid. This article explores the contours of this judgement along with the exclusionary effect of online education, and is concluded with certain suggestions to bridge the burgeoning divide.

 

How is Online Education Discriminatory? – The disruption in education caused by the lockdown has been unparalleled. There is no one who has not been impacted by the closure of educational institutes. However, the degree of impact has been skewed far more heavily upon those who do not have the same scale of access to resources such as electricity, internet and internet-enabled devices. The level of smartphone penetration in India is still quite low for one to presume that each and every child could easily arrange for a device to be available to him/her for several hours in a day. Notwithstanding the unavailability of devices, it cannot be suggested by any prudent person that a speedy, stable internet network is within the reach of all as India’s internet penetration currently stands at only 40 per-cent.

Lost: Where?

Where did I get lost?

Was it among my dreams and desires, or,

Was it among my fairy-tales.

Was it in my playground, or,

Was it in my mental battleground.

Was it in my video games, or,

Was it in my history textbooks.

Was it Lavoisier, or,

Was it Einstein.

Where am I?

For I see myself only with a past and there’s no light at the end of the

tunnel.

[April, 2017]

High Courts Reign Supreme

By Sourabh Balwani and Ritwik Tyagi

Background

Over a long period of time, and especially during the ongoing pandemic, a glaring deduction that has arisen within the legal fraternity is that of the fissures that have emerged in our judicial machinery in dealing with matters of utmost importance. From the Right to Food to the Freedom of Press, from the mandatory imposition of Aarogya Setu to the charges being levied for ‘Shramik’ special trains, the various Constitutional courts in India have displayed differing standards of concern towards protecting the rights of people from being violated. The Supreme Court has seemingly abdicated its responsibility as a protector of individuals liberties, while the High Courts in India have turned out to be cynosures for the common people. The manner in which the High Courts have dealt with the cases vis-à-vis the Supreme Court, is something which should be scrutinized.

Long gone are the golden days when a common person could regard the Supreme Court of India as the custodian of his/her fundamental rights, as the guardian angel for upholding the collective conscience of the nation, and perhaps as the gatekeeper who prevents the legislative and executive branches from crossing certain boundaries. Here, the emphasis is laid on the word common because for a certain section of the society, the Supreme Court has transformed into a personal court of sorts, where the smallest of their concerns are treated with the utmost importance and prioritized over real troubles of those who are suffering every day.

Recent events in light of the pandemic have demonstrated that the Supreme Court is growing more and more exclusionary in terms of who can knock on its doors. By adopting the use of technology to facilitate virtual courts, the court has shown its inclination to take up only cases of utmost importance. The arbitrary exercise of this power to be able to choose what cases are worthy enough to be considered important has corrupted the functioning of the Court. While the poor never really had the luxury of access to justice, the implementation of virtual courts has put the nail in the coffin by completely blocking their path to the so-called temple of justice.

Educational Institutes Charging Hefty Fees: The Unending Saga

By Romit Bhattacharjee and Ritwik Tyagi

Introduction

Education is probably the most sought-after commodity in this country. Predominantly populated by middle-class to poor families, education appeals as the key to a better life and unfulfilled dreams for children hailing from such families. Hence this sector has turned into a lucrative business in the last few decades. But the coronavirus pandemic has brought a paradigm shift in the way educational institutes in this country have been functioning. Institutes have shifted from the brick and mortar concept to online mode of education, which now is proving to be cost-effective and a rather effortless mode of imparting education. But amidst the crashing economy, massive job losses and surging coronavirus infections count, parents have an added burden to address: exorbitant fees charged by the educational institutions! While a PIL filed before the Apex Court for waiver of school/college/university fees awaits hearing, here is our take on the issue.

Defamation of Wife by Husband

Introduction

The offence of defamation has long been challenged as being a relic of India's colonial past. It is argued by many proponents of this position that defamation must be either done away with completely or at least be decriminalised. A private members’ bill was also introduced in early 2017 to decriminalise defamation. The reason being that the offence of defamation is an unwarranted restriction on the right to free speech and must be re-looked. It is put forth that a civil action for defamation must be enough for the effective protection of the right to reputation and that the restriction fails the constitutional test of reasonableness.

However, it is the belief of the author that the provision for a wife to institute defamation proceedings against her husband is one that is very much essential even today. Primarily, the basis for this assertion is that the presence of this provision is an enabling factor for women to fight and break free from abusive relationships that they may have gotten stuck into. The social fabric of the country is one in which the husband and his family enjoy a dominant position over the wife. It would not be wrong to say that marriage as an institution has been a fancy name for a transaction which simply transfers the custody of a woman from her parents to her husband and in-laws. Traditionally, the demand for dowry has been an integral component of this transaction and shows just how the family of the husband enjoys a position of privilege as against the family of the wife.

In such a scenario, it is very likely that the husband and his family would abuse their privileged status to extract the maximum benefit from the transaction of marriage. In this process, it is the wife who suffers the brunt of the toxicity, in the form of domestic violence – economic, emotional, physical, mental abuse inflicted upon a spouse – which data shows to be fairly common in India. The wife and her family are often publicly called out and shamed for failing to meet the demands of the husband. Therefore, it becomes of utmost importance to place the tool of defamation in the hands of the wife to take her husband and his family to task for their actions. Thus, through this article, this author will go on to argue that while the criminal offence of defamation has many arguments against it, it would be in best interest to retain the same for wives as a means to defend themselves from their husbands. This is particularly in light of India’s social environment which necessitates wives having a course of action against their husbands for defamation.

Fly Away

Night after night 

I pass away,

Within my sorrow,

I drift away!

Day after day,

I labour away,

Within my memories,

I drown away!

Moment after moment,

I sulk away,

Looking for happiness,

I break away!

Reality strikes,

Truth prevails,

I tell myself to move ahead, but,

My heart still longs for those now far away!

Sigh!

Life is too short, start right away!

[January, 2017]