Marginalization of Manual Scavenging
In India, manual scavenging has been a regular debate, especially with the country’s rising population. Manual scavenging, a deeply ingrained practice within the socio-economic structure of India, serves as a poignant testament to the enduring presence of caste-based prejudice and systemic disregard. Manual scavengers persistently face maltreatment, marginalization, and stigmatisation, notwithstanding the implementation of legislative measures and social awareness campaigns. Manual scavenging can be historically linked to the caste system of ancient India, wherein specific communities were assigned mundane labour based on their lineage. In ancient times, the responsibility of cleansing human excreta and dispersing refuse was primarily ascribed to the lowest castes, with the Dalits being particularly affected. This egregious practice endured for centuries, thereby sustaining a recurring pattern of mistreatment and subjugation. Section 2 (j) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, defines who a manual scavenger is. It says that “manual scavenger” means a person engaged in or employed for manually carrying human excreta, and the expression “manual scavenging” shall be construed accordingly. This Act prohibits the employment of Manual scavenging, which constitutes one of the gravest breaches of human rights. Additionally, it is a reprehensible treatment of human dignity, given that it constitutes the most menial labour. It preys on the most vulnerable segments of society, endangers their lives, and poses a mortal danger. The decomposition of waste generates a multitude of toxic and hazardous gases, which have the potential to induce a range of ailments, including skin disorders, respiratory complications, chronic diseases, and even fatality. Such scavenging violates the freedoms to dignity and health, as well as the rights to life and liberty. Moreover, it infringes upon the principle of equality by deeming untouchables devoid of dignity. The Act regulates the construction of unsanitary restrooms and prohibits the occupation of individuals as manual scavengers. Violating this Act may result in imprisonment for a maximum of one year, a fine of Rs. 2,000, or both. Despite this, there were no convictions during the twenty years that the Act was in effect.[1] Prohibition of Employment as Manual Scavengers and their Rehabilitation Act. 2013 prohibits manual cleaning of open pits and sewers. Recently, in Commissioner, BMC v Kachra Vahtuk Shramik Sangh (Civil WP 5357 of 2021)[2] the Bombay High Court stated that cleanliness is a necessity but should not be through the enslavement of a particular sect of people in the name of caste. Comprehensive rehabilitation programs and rigorous enforcement of existing laws are essential for preserving the dignity and welfare of manual scavengers. Equal protection of law and equal respect is a fundamental right for every citizen, regardless of class, caste and colour. Art 21 of the Constitution confers the right to life and dignity. Dignity is a subjective concept; there is a general understanding of it. Manual scavenging threatens the well-being and existence of those involved and reinforces intergenerational poverty and discrimination. As a result of restricted educational and alternative employment opportunities, children of manual scavengers frequently continue in the family business. Furthermore, communities and individuals are subject to the stigmatisation associated with manual scavenging, which hinders their social integration, marriage prospects, and access to fundamental services. Supporting skill development initiatives, modern sanitation infrastructure investment, and automation efforts are all viable strategies to generate alternative employment opportunities and disrupt the recurring cycle of manual scavenge. The Civil Rights Act 1955 mentions that manual scavenging is a form of untouchability. Workers have yet to be rehabilitated, primarily due to the absence of a supervisory authority specified in the Act. As per the regulations, many families of labourers who perished while engaged in manual scavenging are not compensated; in Gujarat, only 137 of 152 families were paid. Additionally, enduring social stigma and a shortage of subsequent employment opportunities contribute to the problem’s persistence. As a result of inadequate remediation and skill development opportunities, these employees are unable to achieve sustainable employment and continue to be trapped in the detrimental cycle of manual scavenging.[3] Therefore, Manual scavenging in India transcends its sanitation implications and constitutes a grave infringement upon human rights, with its origins in socio-economic inequality and caste-based prejudice. Eradicating this dehumanising practice requires coordinated efforts from government agencies, civil society organisations, and the general public. By recognising the intrinsic worth of each person and advocating for comprehensive progress, India can progress towards a forthcoming era in which manual scavenging is relegated to antiquity, and all inhabitants are regarded equally and with reverence. [1] Manual Scavenging: An Act to Empower Manual Scavengers – Getlegal India [2] Commissioner, BMC v Kachra Vahtuk Shramik Sangh (Civil WP 5357 of 2021) [3] The Menace of Manual Scavenging in India: The Case for Stronger Legal Implementation | OHRH (ox.ac.uk) Done By: Anoushka Samyuktha, B.A LL.B (Hons), LLM (Criminal Law),Junior Legal ConsultantFor Origin Law Labs
Censor Board – Reasons for changing parameters for censoring content.
What seems fair to one might be unfair to someone else. Is there a solid parameter to test the fairness of art? Especially when we look into cinema, every film is subject to various criticisms. In India, almost a thousand films are released in a year. The Central Board of Film Certification(CBFC) thoroughly scrutinises these films. The Ministry of Information and Broadcasting governs CBFC. It regulates the films’ contents per the provisions under the Cinematograph Act 1952 and The Cinematographic (Certification) Rules, 1983. The main focus of the CBFC is to ensure that rational, educational and healthy entertainment content reaches the audience. The cultural and socioeconomic sensitivities are to be balanced with creative freedom by CBFC. The procedure entails a subjective assessment of the material, occasionally sparking discussions and disagreements amongst the film-makers and critics. Section 5B of the Cinematograph Act deals with the principles to be followed while certifying films. The parameters mentioned in Section 5B are that the films shall be scrutinized as anything against the interests of the sovereignty, integrity, security of the country and its foreign relations, public order, decency or morality, defamation or contempt of court. The Justice Mukul Mudgal Committee holds high significance as it mentions that the CBFC is supposed to be a certification authority and should not censor films unreasonably. Any appeal in this regard was addressed to the FCAT- Film Certification Appellate Tribunal u/s 5D of the Cinematograph Act. FCATs were recently abolished because the tribunals were not functioning at their peak, and the administration highly relied on a nodal officer. Now, the appellate authority is the respective state High Courts. It was stated by the Bombay High Court in Hiten Dhirajlal Metha v. Bhansali Production, 2022 SCC OnLine Bom 372, that once the CBFC has granted a certificate to a movie, then there should not be any obstruction to release the film to the public. The Court also pointed out that there was no violation of any fundamental rights for which the Court could interfere. The film fraternity is not entirely happy about the abolishment of FCAT because of the strict and restricted inference by the Courts. Due to procedural complexities, once the case goes to court, there might be delays in the judgment, which can impact the film’s outcome. Film-makers who previously depended on the FCAT to accelerate the certification procedure are now confronted with the possibility of protracted legal disputes and setbacks in releasing their pictures. The lack of an autonomous appellate entity has the potential to intensify administrative obstacles and impede the manifestation of artistic creativity. The abolition of the Film Certification Appellate Tribunal in India signifies a noteworthy advancement in the ongoing scholarly conversation surrounding censorship, artistic autonomy, and administrative oversight within the film industry. The supporters perceive it as a measure to simplify the certification procedure, while those against it express legitimate apprehensions over the weakening of oversight and the possibility of censorship. As India grapples with these intricate dynamics, achieving a harmonious equilibrium between regulatory supervision and the safeguarding of constitutional rights is crucial, thereby fostering the flourishing of artistic expression within a dynamic and democratic society. Done By: Anoushka Samyuktha, B.A LL.B (Hons), LLM (Criminal Law), Junior Legal ConsultantFor Origin Law Labs
Fact Check Unit
The Press Information Bureau (PIB) is the Indian government’s agency that disseminates official information to the media and acts as a bridge between the government and the public through media. It communicates policies and programs while also gathering public feedback. The Press Information Bureau (PIB) has been unwavering in its commitment to combatting fake news about the Indian government. In November 2019, it established a Fact Check Unit to rigorously verify claims about government policies, announcements, and measures from ministries and departments. This unit is dedicated to dispelling misinformation, rumours, and false claims, ensuring the public receives accurate information. On March 20, 2024, the Ministry of Electronics and IT announced a significant development. The Press Information Bureau’s Fact Check Unit will now serve as the Central Government’s Fact Check Unit under Section 3(1)(b)(v) of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021). This unit will be crucial in monitoring social media posts related to the Union Government’s operations, ensuring the integrity of the information shared. Social media platforms are mandated to take down any information this unit identifies as fake/false, or they risk losing their legal immunity as intermediaries under the IT Rules of 2021. In the case of Kunal Kamra v. Union of India, Civil Writ Petition (L) No. 9792 of 2023, The Petitioners challenged the constitutional validity of Rule 3(1)(b)(v) of the IT Rules 2021 on the grounds of violating Articles 14, 19(1)(a) and (g), and 21 of the Constitution of India,1950 as well as Sections 79 Section 87(2)(z) and (zg) of the Information Technology Act, 2000 which states that intermediary shall not be accountable for any information of third party, data, or communication link made available or hosted by him and the guidelines to be observed by the intermediaries under Section 79(2) of the Information Technology Act,2000 respectively. The petitioners were aggrieved by the power granted to the Central Government’s Fact Check Unit (FCU) to identify fake, false, or misleading information and subsequently compel social media intermediaries to make reasonable efforts to remove or restrict access to such information on their platforms. They claimed that this rule, which empowers the FCU to determine the integrity of information, has a ‘chilling effect’ on the freedom of speech and expression guaranteed by Part III of the Constitution. The petitioners argued that the unbridled power vested in the Central Government’s Fact Check Unit makes the government a judge in its cause, potentially resulting in the government compelling intermediaries to take down information that may be unfavourable to it. The Bombay High Court had refused to stay the implementation of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023. Consequently, it allowed the Union Government to notify the establishment of the Fact-Check Unit (FCU). The petitioners filed a Special Leave Petition before the Supreme Court (SC), challenging the Bombay High Court’s decision. The SC has stayed the Union Government’s notification establishing the Fact-Check Unit (FCU) under the IT Amendment Rules 2023. However, the SC has also acknowledged the ‘serious constitutional questions’ raised as a challenge to these amended rules. In particular, the impact of Rule 3(1)(b)(v), as amended in 2023, on the fundamental right to freedom of speech and expression will be thoroughly analysed by the Bombay High Court during the hearing of this matter, keeping the public informed about the ongoing legal developments. Done By: Sowmiya R.K , B.A.,LL.B(Hons), LLM (Business Law), Junior Legal Consultant
Employees State Insurance Fund
The Employees’ State Insurance Fund, established under the Employees’ State Insurance Act, 1948, serves the purpose of providing financial support to employees working in factories and establishments as defined in the Act, with 10 or more employees (20 or more in some states). However, only employees with monthly wages not exceeding Rs. 21,000 (Rs. 25,000 for persons with disabilities) are covered under the scheme. The Act extends coverage to various establishments such as shops, restaurants, hotels, cinema theatres, road motor transport undertakings, newspaper establishments, educational institutions, and medical institutions. Section 26 of the Act mandates that all contributions paid under the ESI Act, 1948, and any other contributions received on behalf of the Corporation shall be settled into the ESI Fund. Contributions can be in various forms, including grants, donations, and gifts from the Central or any State Government, local authority, or any individual or body, whether incorporated or not. Section 28 of the Act outlines the permissible expenses that can be derived from the Fund. These include: 1. Payment of benefits and provision of medical treatment to the insured persons. 2. Provision of medical benefits to the families of insured persons where such benefits are extended to their families. 3. Defraying charges and costs related to medical treatment and attendance for insured persons. 4. Payment of fees and allowances to members of the Corporation, standing committee, Medical Benefit Council, Regional Boards, Local committees, and Regional and Local Medical Benefit Council. 5. Payment of salaries, leave, joining time allowance, travelling and compensatory allowances, gratuities, compassionate allowances, pensions, and contributions to the Provident or any other benefit fund of officers. 6. The operation and maintenance of healthcare facilities, including dispensaries and hospitals, in addition to the delivery of auxiliary and medical services for the advantage of the insured persons and their families who are eligible for medical benefits. 7. Payment of contributions to any State Government, local authority, or private body or individual towards the cost of medical treatment and attendance provided to insured persons and their families, including the cost of any building and equipment, as per any agreement entered into by the Corporation. 8. Defraying the cost of auditing the accounts of the Corporation and the valuation of its assets and liabilities. 9. Defraying the cost of Employees’ Insurance Courts set up under the Act. 10. Payment of any sums under any contract entered into for the purposes of the Act by the Corporation, the Standing Committee, or any authorised officer. 11. The Corporation or any of its officers or servants may be held liable for any amount paid in accordance with a decree, order, or award of a court or tribunal. This also applies to payments made in compromise or settlement of any legal proceeding or claim brought against the Corporation. In the case of Bai Malimabu v. State of Gujarat [AIR 1978 SC 515], the Supreme Court held that the construction of staff quarters for the employees of the dispensary and other employees working under the Employees’ State Insurance scheme does not violate Section 28 of the Act. The construction of such quarters will undoubtedly be for public purposes, and such construction is closely connected with the workings and the implementation of the scheme. Done By: Seethala B , BBA., LL.B (Hons.), Junior Legal Consultant For Origin Law Labs
Competition Law: Mergers And Acquisitions
Introduction Have you ever wondered how large corporations collaborate or acquire one another? It’s more than just a business choice; it’s a procedure governed by rules and regulations to maintain market equity. Competition Commission Of India in preserving market competition In India, Competition Commission of India (CCI) oversees those procedures by reviewing and assessing mergers and acquisitions. CCI serves as the fair trade regulator and antitrust ombudsman of Indian enterprises. CCI was established under the provisions of Competition Act, 2002.[1] The Goal of the Act is to make sure one company doesn’t get too big and eliminate the chances of other companies competing which will create an appreciable adverse effect on competition. For example: PVR Ltd and Inox Leisure Ltd, India’s top two Multiplex Chains, merged because the merger plan did not require CCI approval because both were closed for months due to the pandemic, affecting their combined sales of less than ₹1000 crore. There have been allegations that the PVR-Inox transaction created a Competition gap since they would not have qualified for exemption from statutory merger scrutiny by CCI if it had not been for COVID-19 lockdowns. However CCI squashed those allegations stating that any fear of probability of anti-competitive practices by an entity cannot be a subject of investigation (Section 29 of the Act governs the “procedure” for the investigations) .[2] When Foreign enterprises enter the market through merger or acquisition, the CCI will scrutinize whether they comply with the Competition Act, 2002. One such notable example is Walmart’s (USA corporation) acquisition of Flipkart (Indian e-commerce company) in 2018. CCI approved the deal after accessing its impact on competition in the market. The merger intensified Competition in India’s e-commerce sector.[3] Another example is Acquisition of a 98% share of Essar Oil Limited ( Indian company) by Rosneft( Russian based Oil Company), Trafigura, and United Capital Partners Consortium in 2017 which was authorized by CCI and paved the way for substantial foreign investments in India’s energy sector.[4] Effects of the Amendment in 2023 ● India recently approved the Competition (Amendment) Act, 2023 which made many modifications to the Competition Act of 2002.[5] One of the key modifications brought about by the amendment is the introduction of a fresh threshold for deal value. Transactions like amalgamations, acquisitions or mergers that exceed ₹2000 crore and involving entities with considerable business presence in India will require clearance from the CCI. Section 43(a) explains gun jumping imposing penalties if the companies proceed without the approval of CCI after they exceed the threshold limits. Gun-Jumping Accusation: Zomato – UberEats merger avoided being scrutinized under India’s anti-unfair competition laws by using a small transaction exemption. The Act, Section 5(a), necessitates CCI scrutiny, yet the deal escaped it using the exemption Despite being considered too small for review initially, the deal is now under investigation because the regulator has the authority to look into transactions that might impact fair competition, even if they initially fall below the scrutiny threshold. ● This new threshold guarantees that even deals that would normally fall within the minimum exemption are subjected to inspection if their transaction value exceeds the statutory maximum. Example of CCI penalties issued for non-compliance The CCI fined an investment manager ₹20,00,000 for failing to report an acquisition involving real estate and private equity fund management firms. The penalized Investment Manager assumed managerial authority of venture capital and alternative investment funds registered with SEBI as a result of the purchases. Despite the investment manager’s claim of a lack of direct asset ownership, the cci found that the transaction gave the funds operational control over their assets. The CCI highlighted that control over portfolio entities was contingent upon shareholding and contractual rights held by the Investment Manager. Regarding turnover calculations, the CCI emphasized that acquiring material influence over an entity mandated considering its entire financials for threshold determination[6] ● The revision has also been shortened for executing combinations from 210 days to 150 days. ● In addition, the CCI must now make an initial opinion on a combination within thirty days; otherwise the combination is automatically accepted. Detailed Explanation of Section 5 and Section 6 In the Competition Act, Section 5 and Section 6 specifically deals with combinations and its Regulations. Section 5 sets a benchmark for what constitutes a net worthy merger or acquisition and warrants further scrutiny by defining the thresholds for combinations and determining asset values. Section 6 is considered as the “permission slip” phase because enterprises that merge must inform CCI upon execution of agreements in relation to such combinations. Section 5: Conditions for Combinations Details Acquisition Thresholds Acquisition or merger leading to a combination if: Limit for Enterprise level : In India- Assets>₹2,000crores or Turnover > ₹6,000croresOutside India-Assets>$1bn with at least >₹1000 crores in India ; Turnover> $3bn with at least >₹3000 crore in India Acquirer and acquired jointly have assets or turnover exceeding specific thresholds in India or internationally. Limit for Group Level: In India-Assets>₹8000 crore or Turnover >24000Outside India- Assets>$4bn with at least >₹1000 crore in India or Turnover>$12bn with at least >₹3000 crore in India[7] The resulting group, post- acquisition, meets set asset or turn over criteria Control Over Similar Enterprises The regulation applies when a person/ entity gains control over an enterprise engaged in similar/ substituted goods or services if: When a person already in control gains further authority over enterprises in comparable goods/ servicesEnterprises jointly controlled possess assets or turnover meeting defined thresholdsThe resulting group holds assets or turnover beyond specified limits after acquisition. Section 6: Regulation of Combinations Details Boundary Prohibits combinations likely to significantly affect competition Notice to CCI Entities proposing combinations must notify the Commission within thirty days. Waiting period of one hundred and fifty days imposed after notification to the Commision or its orders The Commission processes the notice as per specified provisions. Exceptions Share subscriptions, financing facilities or specific acquisition by financial entities are exempt from regulations ●
Fashion And IPR
Introduction– Intellectual property (IP) encompasses intangible creations of human intellect[1], and intellectual property rights serve as a set of regulations safeguarding these creations, including copyright, patent, trademark, trade dress, and trade secrets. The significance of protecting intellectual property in the fashion industry is growing, given its vast scope in designing, manufacturing, and selling various items. Registering IP is crucial to prevent the unauthorized replication of fashion trends amid the global emergence of diverse styles. Amidst a market flooded with counterfeit products, IP registration provides recognition to designers and manufacturers, acting as a deterrent against duplication or imitation. While producing similar products with different labels is not inherently unlawful, legal action can be taken if the resemblance is deemed deceptive. Notably, major fashion brands invest significant sums in lawsuits against counterfeiters to protect their unique designs. Original work protection is essential as new market entries often lead to imitations rather than the creation of original products. Intellectual property rights play a pivotal role in enhancing a brand’s reputation, fostering reliability and authenticity in the eyes of customers within this competitive market. Fashion And Copyright- Copyright, defined as the legal entitlement to reproduce something, is governed by The Copyright Act, 1957. It ensures that the original creators and those authorized by them hold exclusive rights to replicate their creations. Copyright protects all forms of creative, artistic, musical, and literary works, including artistic designs on textiles, fabrics, apparel, and garments[2]. According to Section 2(c) of the Copyright Act of 1957, artistic design work, encompassing paintings, sculptures, sketches, or any unique artistic creation, is safeguarded[3]. However, the functional aspect of a design is not covered by copyright; instead, The Design Act, 2000 safeguards the aesthetic and design elements like shapes, patterns, and colours for 15 years, with registered designs automatically gaining copyright protection. The Copyright Act grants a ten-year protection period for designs from the date of registration, and copyright lasts for the author’s lifetime plus 60 years from their death. Notably, only artistic designs or architectural works fall under copyright protection, leaving items like clothing and footwear excluded. Copyright plays a crucial role in the fashion industry, safeguarding the creativity of artists, such as fashion illustrators. For instance, a fashion illustrator’s work can be protected from unauthorized replication through copyright, ensuring exclusive usage by the creator or those permitted to use the design. Section 15(2) of the Copyright Act specifies that no copyright can subsist in drawings and sketches under the Indian Copyright Act once they exceed 50 reproductions.[4] A legal precedent in the case of Unicolor, Inc. v. Urban Outfitters[5], Inc highlighted that the print pattern of a woman’s dress can be copyrighted, and infringement may lead to legal action. Fashion And Trademark- A trademark, as defined by the Trademark Act, 1999, is a distinctive sign that sets apart the goods or services of one company from those of others[6]. It plays a vital role in averting confusion among consumers about brand elements like names, symbols, and quotes. Trademarks, exemplified by recognizable symbols such as Nike’s tick mark, Adidas’s three stripes, Christian Louboutin’s red soles, and Bettina Liano’s pocket stitching, provide exclusive recognition to brands. Major players like Zara, H&M, Michael Kors, and Louis Vuitton use trademarks unique to them, enhancing their visibility in a competitive market. Registering a trademark is essential to shield brands from imitation, ensuring they don’t bear an identical mark that could mislead customers. The term “trade dress,” a subset of trademark law, encompasses a product’s overall design, including exterior and interior features, packaging, size, texture, colour combinations, and arrangement. It also extends to the distinctive colour and sound of items, like the specific style and colour of an Adidas shoe. Designers often opt for trademark protection over designs and patents due to its cost-effectiveness and efficiency. To register a trademark, designers can complete the e-trademark application on the Intellectual Property India website under the Trademark Act, securing protection for their products.[7] Fashion And Patent- A patent, granted under the Patent Act, 1970, and the Patent Rules, 2003, is an exclusive right for an invention – be it a product or a process that introduces a new method or provides a technical solution to a problem[8]. Governed by patent law, it serves as a property right, allowing the holder exclusive benefits from the invention for a limited period. This exclusivity prevents others from selling, manufacturing, or utilizing the innovation. There are three primary types of patents: utility patents, plant patents, and design patents, offering protection for 20, 14, and 20 years, respectively, from the filing date. Once this period concludes, the invention enters the public domain. While the fashion sector infrequently uses patent law, mainly because artistic creations can’t be patented, it is more prevalent in the technological and industrial sectors. In fashion, patents are typically granted for technical and industrial innovations, such as wrinkle-free fabrics or water-repelling textiles. Unlike design patents, patents for new creations like a pair of shoes are not feasible. Obtaining a patent involves disclosing technical information about the invention in a patent application[9]. Notably, patent registration is a costly and time-consuming process, exemplified by cases like NIKE, Inc. v. SKECHERS USA[10], a widely-known instance of patent violation. Nike Inc. sued Skechers USA for using footwear cushioning originally invented by Nike, highlighting the frequency of patent infringement lawsuits in the fashion industry. Conclusion- The global fashion industry is experiencing remarkable growth, continually evolving with the creation of new styles and designs. Intellectual property plays a pivotal role in safeguarding these developments, making the use of copyright, patent, trademark, and other protections essential. Effectively securing innovations makes it challenging for copied products to proliferate, rendering infringement of intellectual property rights virtually impossible. In the symbiotic relationship between fashion and intellectual property, both are indispensable for each other’s advancement. Intellectual property laws provide crucial protection against the threats of imitation and plagiarism in the creative realm, not only for fashion but also for any industry driven by innovation. However, the existing provisions of intellectual property rights
Legalities Surrounding Organ Transplants In India
The demand for organ transplants surpasses the available donors, leading to the emergence of illicit practices like the commercialization of organ transplantation. In response, legislative measures were introduced to curb these activities. The legal framework for organ donation in India is primarily outlined in the Transplantation of Human Organs and Tissues Act, 1994 (as amended in 2014), along with the Transplantation of Human Organs and Tissues Rules, 2014. These laws aim to eradicate trafficking and prevent the commercial trade of human organs. Brain Stem Death Brain stem death is a crucial consideration in organ donation. A living individual has the option to become an organ donor and authorize the extraction of any organ or tissue for therapeutic purposes during their lifetime, following the guidelines outlined in Section 3 of the THOT Act 2014. Additionally, organ removal is permissible after the declaration of brain stem death. The act defines “brain-stem death” as “the stage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3 of the act;”[1] Under the act the definition for “deceased person” is defined as “a person in whom permanent disappearance of all evidence of life occurs, by reason of brain-stem death or in a cardio-pulmonary sense, at any time after live birth has taken place;”[2] Certification of “brain-stem death” in a patient requires evaluation by a Board of medical experts. This board includes the registered medical practitioner overseeing the hospital where the death occurred, an independent registered medical practitioner nominated by the initial practitioner, and a neurologist or neurosurgeon nominated by the registered medical practitioner. Suppose a neurologist or neurosurgeon is not accessible. In that case, the initial practitioner may nominate an independent registered medical practitioner, surgeon, or physician, along with an anesthetist or intensivist, ensuring they are not members of the transplantation team for the recipient.[3] However, the determination of brain death remains a controversial topic. In 2023, the Kerala High Court summoned a hospital and its doctors for declaring a patient dead without conducting an Apnoea Test, subsequently transplanting the liver to a Malaysian National.[4] Types of organ donation There are two primary categories of organ donation: i) Living Donor Organ Donation: During their lifetime, an individual can contribute specific organs to benefit others. This includes the option to donate one kidney (as the remaining kidney can sufficiently maintain bodily functions), a portion of the pancreas (with half being adequate for sustaining pancreatic functions), and a segment of the liver (with regeneration occurring in both the recipient and donor over time). A Living Donor is an individual, aged 18 or older, who voluntarily consents to the removal of one or more organs and/or tissues during their lifetime, following prevalent medical practices for therapeutic purposes. Subcategories of living organ donation include: Living Near-Related Donors: Human organs or tissues removed from a donor before their death cannot be transplanted into a recipient unless the donor is a near relative of the recipient.[5] section 2(i) of the act defines “near relative” as “spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter” Living Non-Near Relative Donors: These donors, not near relatives of the recipient, contribute organs out of affection, attachment to the recipient, or for special reasons. SWAP Donors: In cases where a living near-relative donor is incompatible with the intended recipient, a provision for swapping donors between two pairs is possible. This occurs when the donor from the first pair matches with the second recipient, and vice versa. However, this is only permissible for near relatives as donors. If a non-relative donor wishes to authorize organ removal for a recipient based on affection or special reasons, prior approval from the Authorisation Committee is necessary.[6] ii) Deceased Donor Organ Donation: After (brain-stem/cardiac) death, an individual can donate multiple organs and tissues, which continue to function in another person’s body. A Deceased Donor can be anyone, regardless of age, race, or gender, who becomes an organ and tissue donor after their death (brainstem/cardiac). Consent from a near relative or a person in lawful possession of the deceased body is required. If the deceased donor is under 18, consent must be obtained from one parent or another near relative authorized by the parents. The determination of medical suitability for donation is made at the time of death.[7] Punishments under the act Section 18: Unauthorized Removal of Human Organs Individuals providing services at a hospital engaged in such removal for transplantation purposes without proper authorization could face severe penalties, including incarceration for a maximum of ten years and a fine of up to twenty lakh rupees. If the perpetrator is a registered medical practitioner, additional measures may be taken: · The Appropriate Authority will report their name to the State Medical Council. · The Council may initiate disciplinary action, including removing the practitioner’s name from the register: · Three years for the first offense. · Permanent removal for subsequent offenses. Moreover, subsection (3) specifies that individuals rendering services at a hospital involved in the unauthorized removal of human tissue may encounter: · Imprisonment for up to three years. · A fine of up to five lakh rupees. Section 19: Commercial Transactions Involving Human Organs Anyone involved in activities such as making or receiving payment for the supply of human organs, seeking potential donors, or initiating transactions may face Imprisonment for a term not less than five years but up to ten years and A fine ranging from twenty lakh rupees to one crore rupees. Section 20: Violation of Act Provisions and Rules Section 20 deals with the punishment for violating any provision of this Act, any established rule, or any condition outlined in the registration granted under this Act, in the absence of specific penalties elsewhere. Individuals contravening such provisions may be subject to: · Imprisonment for a term up to five years. · A fine extending to twenty lakh rupees. [1] section 2(d) of the Act. [2] section 2(e) of the Act. [3] section 3(6) of the Act [4] Order
Blasphemy Laws in India: How India Balances Freedom of Expression and Religious Sentiments
Introduction Blasphemy laws in India are a contentious subject, with the recent controversy involving Bollywood actor Ranbir Kapoor adding fuel to the debate (no pun intended). Kapoor got into legal trouble when a video from his family’s Christmas lunch became popular online. It showed him dousing a cake with alcohol and lighting it up while saying “Jai Mata Di.” This resulted in a complaint accusing him of hurting religious feelings and the filing of an FIR. The complainant claimed that Kapoor’s actions insulted Hindu beliefs.[1] While most of us might it absurd, such lawsuits are common in India. Let us examine the legal framework that enables such complaints to be filed. Current Legal Framework Section 295A of Indian Penal Code states, “Whoever, with the deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India], [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both.” Section 295A is often invoked along with section 153A of the Indian Penal Code which penalizes promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to the maintenance of harmony and Section 505 of the IPC that punishes statements conducing to public mischief. If someone engages in online speech that could lead to charges under Section 295A IPC, Section 66A of the Information Technology Act, which penalizes sending offensive messages through communication services, would be applicable. However, Section 66A of the Information Technology Act, 2000 was declared unconstitutional by the Supreme Court of India in Shreya Singhal v. Union of India, (2015) 5 SCC 1, due to its “vagueness” and infringement on free speech. As a result, it is no longer valid. Recent legal developments Section 299 of the Bharatiya Nyaya (Second) Sanhita, 2023 mirrors the IPC provision, emphasizing the consistent legal stance on blasphemy. Historical context of blasphemy laws in India The amendment to section 295 was a response to the Lahore High Court’s acquittal in 1927 of a case known as Rajpaul v Emperor, commonly referred to as the Rangila Rasool case, under Section 153A of the IPC. This case revolved around the publication of a tract called Rangila Rasool, containing scandalous references to Prophet Mohammed’s personal life. Despite acknowledging its offensiveness to the Muslim community, the Lahore High Court ruled that the writing couldn’t legally sustain prosecution under Section 153(A) because it didn’t incite enmity or hatred between religious communities. the judgment was so controversial that the publisher of the tract was murdered in court. The Muslim community’s outcry for a legal change resulted in the enactment of Section 295A.The Select Committee’s report before the enactment stressed that Section 295A aimed to punish those vilifying or attacking religions. It also highlighted that criticism, even if insulting, made in good faith to facilitate social reform, should not be penalized. Therefore, the Committee recommended inserting the words “with deliberate and malicious intention” into the Section. [2] Blasphemy case laws in India The Supreme Court in Ramji Lal Modi v. State of UP 1957 AIR 620 stated, “Section 295A only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of clause (2) of Article 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Article 19(1)(a).” The Supreme Court in In Mahendra Singh Dhoni vs. Yerraguntla Shyamsunder (2017) 3 MLJ (Crl) 92 (SC) reiterated the principle laid down in the Ramji Lal case and held that “Section 295A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalise only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the Section.” However, In the Baragur Chandrappa v State of Karnataka (2007) 5 SCC 11 Para 22 case, the state government banned a Kannada novel called “Dharmakaarana.” This novel depicted a fictionalized version of Saint Basaveshwara’s life. The followers of Basaveshwara urged the ban, arguing that the book constituted hate speech due to the author’s suggestion of Basaveshwara’s nephew being born out of wedlock. The Supreme Court upheld the ban noting that “no person has a right to impinge on the feelings of others on the premise that his right to freedom of speech remains unrestricted and unfettered. It cannot be ignored that India is a country with vast disparities in language, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted”. Criticisms and Challenges Subjectivity Differentiating between genuine disagreement and purposeful targeting of religious beliefs is tough due to the subjective nature of what’s offensive. While the court has ruled in Ramlal Puri v State of Madhya Pradesh AIR 1971 MP 152, the Supreme Court said that the “test that is to be applied to such cases is not that of an abnormal or hypersensitive man, but that of an ordinary man of ordinary common-sense and prudence.” What constitutes abnormal or hypersensitive and ordinary common sense is subjective and differs from person to person. Striking a balance means understanding where the limits are, especially with social media making things