Right to Conduct a Religious Procession

by Sidhanta Sarkar

Constitutionally, India is a secular country and has no State religion. India’s concept of secularism had been fully established through judicial decisions and state practice – the preamble to the Constitution was amended by the Constitution (Forty-second Amendment) Act 1976 to include the word ‘secular‘ along with ‘socialist‘, to declare India to be a ‘Sovereign Socialist Secular Democratic Republic‘. The Constitution of India contains in its Chapter on Fundamental Rights several provisions that emphasize complete legal equality of its citizens irrespective of their religion and creed and prohibit any kind of religion-based discrimination between them. Religious freedom as an individual’s right is guaranteed by the Constitution to ‘all persons‘ in Article 25(1), Article 27 and Article 28. Thus, the Right to Freedom of religion forms a very important Fundamental right of our country and aims at maintaining the principle of secularism in India.

Indian constitution firmly states that all religions are equal before the law and no religion shall be favored over the other. The Fundamental Right to religious freedom cannot be enjoyed in an absolutely unrestricted way. There are limitations within which these rights can be exercised, as also lawful restrictions which can be imposed by the State.

The Jatindra Narain Commission’s Report, published recently, on the Jamshedpur riots which erupted on April 11, 1979, on the occasion of the Ram Navami festival, raises questions about the citizen’s right to go in a procession over a public road. These questions were also raised in Justice D.P. Madon’s Report on the Bhiwandi riots which broke out in May 1970 during the Shiv Jayanti festival. The central issue in both cases was conflict between the two groups. The Constitution – Art 19(1) (b) – protects the citizen’s fundamental right ‘to assemble peaceably and with- out arm‘. The right is subject to ‘reasonable restrictions‘ being imposed by the State ‘in the interests; of the sovereignty and integrity of India or, public order‘. Under S 144 of the Criminal Procedure Code, processions can be banned if the District Magistrate feels that “immediate prevention or speedy remedy is desirable” and it is necessary to impose the ban to prevent “a disturbance of the public tranquility, or a riot, or an affray”.

The Supreme Court upheld the constitutional validity of Section 144 in Babulal Parate vs State of Maharashtra  in 1960 and in Madhu Limaye’s case in 1970. That was a case where two rival trade unions clashed. In Mohammad Siddiqui vs State Of U.P. And Anr, Qazi Mohammad Siddiq had filed an application against the State of Uttar Pradesh and the District Magistrate of Lucknow, under Article 226 of the Constitution that the applicant applied for the taking out of a religious procession, Madhe Saheba. The magistrate dismissed the application because of fear of breach of peace and conflict based on religion. Lord Justice Scarman, who inquired into the Red Lion Square disorders of June 15, 1974, stated the law in the most explicit terms: “There is a conflict of interest between those who seek to use the streets for the purpose of passage and those who seek to use them for the purpose of demonstration. English law recognizes as paramount the right of passage; a demonstration which obstructs passage along the highway is unlawful. The paramount right of passage is, however, subject to the reasonable use of the highway by others. A procession, therefore, which allows room for others to go on their way, is lawful; but it is open to question whether a public meeting held on a highway could be lawful, for it is not in any way incidental to the exercise of the right of passage. India today faces many crucial problems. On the one hand, the executive is not sensitive about the citizen’s rights. On the other, riots have broken out because of certain kinds of processions“. He referred to Article 19(1) (b) and said “The people must have a right to voice their dissatisfaction or publicly demonstrate their grievances, particularly when it appears that at times even reasonable demands have not been granted unless there were public demonstrations”.

THE CHANGING DIMENSIONS OF SOCIAL MEDIA AND IT’S COPYRIGHT ISSUES

by Sidhanta Sarkar

In recent times, the swift and large scale penetration of the Internet has been a matter of concern for policymakers almost as much as it has been a cause for celebration for the users. Social Media has revolutionized the way people meet, interact and communicate in the virtual world but this revolution has not been without consequence. Questions about the protection of intellectual property rights in the virtual world are steadily surfacing in academic circles. Drawing from this background, this note focuses on nexus between the rights of the copyright owner under the Indian Copyright Act and the seemingly innocuous Terms of Use of social media websites that host user-generated content. It also discusses the defenses to copyright infringement in the context of social media as interpreted by the courts. The note also observes that governments are beginning to look upon this area with interest and progresses to identify some of the more recent tools developed to address copyright issues on social media websites. 

Finally, to conclude the note by succinctly summarizing the observations and makes recommendations for the way forward:

Social media has begun to make its presence felt in our lives in a myriad of ways which we could not have envisaged less than a decade ago. We certainly had our means of access to information revolutionized by digital technologies some years ago but it continued to be a one-way street; we acted only as “consumers of culture”. Suddenly, the Internet is becoming a lot more interactive. Users have graduated from an erstwhile ‘ordinary’ lifestyle of merely reading books and going to the movies to a daily routine of actively participating and engaging on social media platforms — Facebook, Twitter, Pinterest, Flickr, Instagram, YouTube to name just a few. Those consumers have now transformed into users that generate culture; for whom words like ‘commenting’, ‘liking’, ‘uploading’ and ‘posting’ are now an inseparable part of their common language. Clearly, it is changing how we perceive the Web and for copyright law, in particular, presents unprecedented questions and challenges.

 In a recent copyright infringement lawsuit, a Manhattan jury found that Agence FrancePresse (AFP) and the Washington Post infringed upon the copyright of photojournalist Daniel Morel by using pictures that he had taken in the aftermath of the Haiti earthquake in 2014 . Curiously, these pictures had been uploaded by Mr. Morel on his Twitter account. AFP had argued that that once the pictures appeared on Twitter, they were freely available as a part of the public domain. However, it is quite heartening to see that some websites have begun to include the implications of the license terms in simple English along with the accompanying legalese to help users understand what they are agreeing to.

Strangely, despite overboard license terms and large scale infringement over social media, cases that have gone to court still remain almost negligible in number. But considering the uncertainties associated with the Fair Dealing doctrine, it is nevertheless advisable for users to be careful in determining whether the material they are sharing or linking to is copyrighted. Memberships of social media websites continue to grow every day and organizations across the world are making efforts to devise models that can help reduce the copyright implications on social media. But the law cannot lag behind for too long. This transformation of the culture of the web is something the Legislature can no longer ignore. It is time for the legislative process to adapt, evolve and do something about it.

ARE YOU A FOLLOWER OF HINDUTVA?

by Aditi Narain

The world is now witnessing the chaos between various parties who are divided on religious bias stand against each other and put the capital of India under threat from unpredictable raging out of masses set out on the roads to trouble the citizens and put up new demands in front of the government in the name of their religious divinity being the most superior.

The term Hindutva is well heard of by every Indian more than once in their lifetime. More or less the current government is driven by the ideologies of a Hindutva imperative. Under the tag of Hindu Nationalism, the government parties they are unaccounted for goons are out on the roads to cut down and violate anyone who supports the other people, referring to the Islamic population. The concept and perseverance of ‘Hindutva’ is well laid down by Sumanta Banerjee, as she recalls the Unlawful Activities(Prevention) Act, drafted in 1967 by the government to abort all discriminatory actions which promote or attempts to promote on grounds of race, religion, caste or communities or any other reason whatsoever, which in turn brings in feeling of hatred between two ethnic or languages based communities. But when the government when was to enact this document, the scope of the legislature was only restricted to secessionist activities. Although the same draft was bought up during the conference of chief ministers of the states in May 1968, again no attempt was made to extend the scope of the legislation to communal activities.

The flow of events eventually led to political parties like BJP, VSS, Shiv Sena, RSS and their leaders who make and derive their metaphors from the old holy books of Hindu mythology. Use the feeble minds of the majorities to lay the groundwork as to how Lord Rama and Lord Krishna had said in these and how they should follow their will and teachings and lead the world. The same Hindu ideology is used to ignite the hatred towards the Muslim communities and treat them as unequal and bad elements of our society. These leaders make the simple people redirect their minds or whitewash them as per their need to move the masses to spread the sense of India being a nation of Hindus and Hindus only. They intend to state that others are all outsiders and were never meant to be on the Indian soil. They push the bull-headed population to believe that the Muslim community will corrupt our kids, take away our jobs and try to snatch away all our liberties from us. Sheer manipulation of all sorts is done by these religious political parties to drive everyone in their mirage of hatred towards the Muslim community.  

In October 2019, an assistant professor Audery, from Rutgers, U.S. attended a rally outside the United Nations where our Prime Minister Narendra Modi was scheduled to speak. She openly criticized the BJP for adhering to Hindutva. She compared Hindutva to Nazism. She said that as the Jews in Germany were treated by Nazis, so is done by Hindutva followers to deal with India’s Muslim community. People highly criticized her by stating all sorts of unproven tails, saying she was anti-Hindu and supporter of Pakistanis, an online petition was raised by numerous people to have her investigated by the university she works for. But Rutgers stood with the professor’s statement stating that she always welcomes a platform to learn through a reasonable debate on the cultural and intellectual history of early-modern and modern India.

Now, where do you think your ideas stand or where do you think Indian’s ideas stand?

DELIBERATION ON NEW EDUCATION POLICY, 2019

by Sidhanta Sarkar

There have been enormous loopholes in the DNEP, 2019 and one such is the inclusion of norms for religious morality. In recent times, this has been the most heated topic of all time. The opposition parties are claiming that DNEP has made things worse for the religious minorities. The contention from opposite parties is clear and transparent that the DNEP has focused only on “Hindutva”.

In section 6.1 of DNEP, it talked of religious minorities and in that, they only talked about reading Panchatantra and Jataka Tales but there has been mentioning of Arabian Nights and other good fables. Also, removing “The Great Akbar” story from the textbook is one such example that the Party does not want to mention any Muslim or other religious minority community.

In the preamble of DNEP, the “Secular” word is missing. This clearly states what the government intends to do. Also, from the case of “T.N. PAI v. UOI”, the Hon’ble court gave the decision that minorities cannot be decided based on religion. Hence, the ruling government is not taking judiciary into consideration which clearly means that slowly, the country is losing its foundation democracy. There has been no mentioning of how the government will deal with disabled people in terms of education. 

Education comes under the concurrent list which means that both the state as well as the central government has equal say. But by making Narendra Modi the head of RJC committee, they have violated the meaning of the concurrent list. 

Below mentioned are some of the recommendations of DNEP, 2019-

  • Inclusion of LGBT community in the gambit of NEP.
  • Amendment to Section 12© of RTE act. 
  • Inclusion of Right of persons with disability Act, 2016
  • Keeping religion and politics away and include secularism.
  • Follow the concurrent list in better and goo spirit. 
  • Education system should be away from privatization and centralization.
  • Fee structure should be regulated.
  • Annual survey regarding absorption capacity for the professional courses.

It is the dire need for the government to take into considerations, all these recommendations mentioned above because it is a very well-settled principle that in a policy, there cannot be such big loopholes and there should not be the inclusion of religion.

LEGALIZATION OF PROSTITUTION IN INDIA IS A DESIDERATUM

by Aditi Narain

Being at par with the world is the ‘new in’, India stands in par with most upcoming or at the least attempts to do so. The final abolishment of triple talaq was done by the Indian Judiciary by the end of the last decade. The need to adapt to the recognition of will, in turn, assist the government in regulating and keep in check of the already running centuries-old brothels.  

Fifteen countries of the world legalize that have legalized prostitution include; New Zealand has legalized prostitution since 2003 which encompasses licensed brothels operating under public health and employment laws, which gives prostitutes social benefits like any other employees; Belgium intends to remove the stigma society at large holds against this profession and has introduced fingerprint access and key cards inside running state of the art brothels; Denmark also has legalized prostitution and the state also gives aid to its disabled citizens for availing these services; France recognizes prostitution legally but does not support running of brothels; Germany legalized prostitution and state-run brothels in 1927, hence they receive all benefits like health insurance and pay taxes and so has Greece. The list has more countries but the gist is that countries embracing this profession rather than treat it with disgust.

The legal recognition of prostitution will effect in, payment rights to their services and will reduce exploitation. They will receive health benefits which include regular checkups and thus keep their bodies healthy and alarm them about the onset of pregnancy. They will pay taxes as any other employee does and get positive recognition in society due to all the above. Lack of legal support also gives rise to crimes like extortion, bodily injuries, rape, forced prostitution, and human trafficking.

Modus operandi in Arthashastra 

In the third century BCE, during the reign of Chandragupta Maurya, Asthashastra was the governing book for all state and law-related matters within their empire. A part of Arthashastra has operatives and laws on courtesans, brothels, and prostitutes. They were important employees of the government who worked in the King’s court and aided the army. 

The platform for sexual entertainment to the public using prostitutes was carried out in a state-owned establishment. The state was responsible for bearing all the expenses for the training and education of prostitutes and courtesans, accomplishments included singing, playing musical instruments (including the vina, the flute, and the mridangam), conversing, reciting, dancing, acting, writing, painting, mind-reading, preparing perfumes and garlands, shampooing and making love. The sons of the prostitutes were trained to become a producer of plays and dances at the expense of the state. Thus, all the prostitutes were paid employees at such establishments, who received a fixed salary and paid one-sixth of their earnings to the state in the form of taxes. The entertainment houses were headed by a capable, beautiful and talented woman, who was titled as madam and was to be paid 1000 panas as her employment wage, a deputy appointed below her would receive 500 panas as her employment wage.  Stiff punishments were given to people who robbed or cheated on a prostitute, abducted her, on confining her against her will or disfiguring her and to those who forced themselves upon virgins or daughters of a prostitute, the man must pay fine and also compensation to the mother of sixteen times the fee for a visit.

The exploitation of rights of prostitutes

The well-being, humane rights, recognition, and health are all at risk for all the women, men and transgender who work as prostitutes. 

A BBC documentation on the horrors of brothels has highlighted the need to legally recognize their work to avoid exploitation of teenagers as sex workers against their will and of women who have firstly, been brought to the brothel by misrepresentation and fraud and secondly by men who are the users of their services, who force them at their whim and also deny to paying them.The All India Network for Sex Workers list the difficulties faced by them in India; 

  • Critique the trafficking paradigm that conflates representations of sex work, migration, and mobility
  • Speak out about violence against sex workers, including violence from police, institutions, clients, and intimate partners, while challenging the myth that sex work is inherently gender-based violence
  • Oppose human rights abuses, including coercive programming, mandatory testing, raids, and forced rehabilitation
  • Challenge stigma and discrimination against sex workers, their families and partners, and others involved in sex work
  • Oppose the criminalization and other legal oppression of sex work and support its recognition as work
  • Advocate for universal access to health services, including primary health care, HIV and sexual and reproductive health services. Advocate for the economic empowerment and social inclusion of sex workers as sex workers

Suggestions can only be made as long as the ones you are orating to understand your opinion, reflect about its consequences and according to act upon them, wherein our government fails to do so. The implementation of authorities to regulate prostitutes will benefit both sides of the ordeal. The crimes at and related to prostitutes will drop as they will be employees like any other citizens who work, they will have established health and social security. They are humans who have been treated like cattle. India needs to brush off its post-Victorian law adaptations and read to learn more from its own rich and unorthodox past, that set stands which is unattainable by the current mindset of officials and society.

SHOULD DEATH PENALTY BE ABOLISHED IN INDIA?

by Sidhanta Sarkar

The death penalty which is also known as “Capital punishment.” In criminal law though, in ancient times a number of ways were present to punish an accused with reference to the nature of his crime against the society. Such punishment was considered based on the nature of criminality presence in an act of the accused. In ancient Indian epics like; the Mahabharata and the Ramayana have also considered the death penalty which was known as “vadhadand” which meant ‘amputation by bits’ which classified into fourteen modes. While in furtherance of retention of the death penalty, King Dyumatsena observed that “if the offenders were leniently let off, crimes were bound to multiply.” In his statement, he explained that the execution of unwanted criminals was perfectly justified in the existing society. As in the same manner the great eminent law-giver Manu also stated: “that in order to refrain the people to indulge in any criminal activity fear as an essential mode for which death penalty was necessary in the society”. He further stated that in the absence of this mode of punishment the weaker would not be able to survive in the society. The concept of the death penalty was only effective in an ancient period but also has the same status in the reign of Mughals rule in India where the death penalty was not executed in a simple manner. Each and every accused person was bound to suffer and also to bear the pain until his death. Mode of the death penalty by way of nailing the body of the accused on walls was common which was abolished later in the British system of criminal justice. Thereinafter, only the mode of the death penalty by way of hanging has remained and which is yet, continuously followed by the Indian criminal justice administration. Being a way to deter offenders, it also enshrined in Section 54 of the Indian Penal Code (45 of 1860) which mentioned the death penalty as a way of punishment to refrain criminals.

Retributive Effect:

 Death penalty since ancient time considered as an effective weapon of refraining the people to indulge in any heinous criminal activities which may affect their life or through them in the well of death. Since that period this mode of punishment is also considered as an effective measure of retributive justice. In furtherance of the justification of the death penalty, it is to be said that this is a lawful measure to punish an offender who already takes away the life of another person. It is to be said by a scholar that “a person who kills another must be eliminated from the society and therefore his execution is justified.”

 Deterrent Effect: 

The death penalty though one hand has a retributive effect but on the other hand, it also has a deterrent effect which mainly deters the offenders to indulge in most heinous crimes. Its deterrent effect can be the best way by which perhaps, offenders keep themselves away from the criminality. If they are made aware of this and make such fear in their mind than in a positive way there can be a reduction of the incidences of homicide in the existing society. But in present, the method of public hanging in the early days is prohibited in respect of present laws in our country because of the extension of the human rights regime.

Conclusion:

In our country, there shall be retention of the death penalty because in the present era there is no substitute for the death penalty which may play a similar role towards punishing the criminals convicted in heinous criminal activities. In India, there are several people as well as some communities raising their voice to abolish the death penalty but there is no substitution or alternate of death sentence which may prevent the criminals to commit those offenses which may be punished with a death penalty as a mode of punishment. If in India, the death penalty would be abolished than in those cases the amount of criminality or criminals or rate of the offenses would increase as the time passes. Therefore, it is not quite possible to abolish death sentence as a mode of punishment mentioned in the Indian Penal Code, 1860. Because if someone wants to harvest crops from the fields, then he has to decide before what substitute he will plant. Similar is in case of the death penalty if there is a need to change the mode of punishment which already exists in the present society or also enshrined in the codified laws than a further step should be there for deterrence of the criminal minds and their behaviors towards the particular community or society at large. Though, as per the opinions of some of the people belonging to the society support the idea that in more than hundred countries death penalty has been abolished, then they should be remember that we cannot change anything with only seeing particular actions instead of this we should rely upon the circumstances of those countries where it has been abolished. The judicial actions taken and policies revised are not only based on present circumstances but also on past events which lead to historic commitments in a country hence, it is rightly said that: ‘future may be based on past’. If we want to cut the tree then we are required to analyze its roots to cut out them, similar is the case if we want to abolish the death penalty. Therefore, death penalty should be retained in India and those laws which are existing in present society shall be enforced. For the prevention of criminal activities or the rise of criminals or heinous crimes, we can say that such laws need to have some enforcement among the people as well as society at large in India.

ERAS OF POLITICAL DRIFT

By Sidhanta & Aditi

Recently, the global world has started experiencing some revolutionary political changes. As during the twentieth century, realism and idealism both collided as conceptual rivals for understanding international relations, but the situation kept worsening in this scenario. Throughout history, the maps of nations have changed on account of the existence of various political influentials whether it is through democracy or a fascist dictatorship or a Parliament or a Communist dictatorship. The collision has been considered as a loophole in international relations. In a society with a high plurality, people may have all kinds of belief which can vary from person to person.
Changes in the society have led to the variation over time in patterns of political roles. Today, democracy has changed the mindset of society and the growth in competition in politics has become the major problem.
Therein media has emerged as the essential part of the subject as it plays the game of manipulating the society as we have seen in Spanish-American War and Nigeria propaganda War. The Nazis and Americans
portrayed the best of propagandist war. Nazi Germany introduced the term, “Blitzkrieg” and the American version of a blitzkrieg attack was “shock and awe”. Both actions aimed at achieving mass destruction within enemy’s territory. Such annihilation resulted in the violence of inequality and injustice, that is structural violence which as stated by Winter and Leighton, “embedded in ubiquitous social structures [and]
normalized by stable institutions and regular experience”.
Activists agree that the society needs to reconcile, per say, the three paradox of democracy are the parameters for society and its newly flourishing regulations to be kept within the boundaries of democratic
freedom.

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