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.