TIME TO HAVE INDEPENDENT MEDIA HOUSES IN INDIA!

Where the press is free and every man is able to read, all is safe”- Thomas Jefferson

 

Media is often referred to as the “fourth pillar” of democracy and it plays a crucial role in ensuring justice .Media houses act as a chain between the government and the citizens of the country. Media has always played a very pivotal role in influencing mind-sets across the country, which makes it essential for us, as citizens to ensure that we are consuming information from the right channels.

The credibility of Indian media is fast eroding and has been criticized time and again by the world audience for its sensationalism. The way Indian media manipulates the news and portrays the information in a twisted manner has seen the country drop three places in the recent World Press Freedom Index from rank 135 to rank 138 in 2018.

Most of the media outlets in India are either directly owned or subtly controlled by powerful business and political interests. Over the past few decades, the domination of a few corporate groups over the mass media has grown to alarming levels. Politicians or individuals with a hidden agenda have begun to call the shots, making the media a mere puppet in their hands. One finds it hard to distinguish between what is true and what is projected as being true. Such a trend raises serious questions on the transparency and accountability of the media. Most of the media outlets have become relatively dependent on government advertising.  This has made them uncritical and pliant, thus depriving them of sharp teeth and nails to tear them to pieces. It may be noted that some serious issues like the beef banthe crisis in Kashmirdissent in universities and even the unrest in societies where Dalits have been discriminated against or killed, have received scant mention in media coverage. Things are further aggravated with a growing temptation to self-censorship because of fear. Those who do not yield to the pressure tactics and those who dare to question the regime are intimidated with raids and probes. The murder of editor and publisher Gauri Lankesh, a vocal advocate of secularism and critic of right-wing political ideology puts a big question on the fundamentals of democracy.

However, allegations of misuse of Government-owned Media are nothing new. During one of the darkest periods of Independent India – The Emergency, Smt. Indira Gandhi, the then Prime Minister reportedly told her I&B Minister, I K Gujral that she wanted to see the radio and TV scripts of all news bulletins. Thereby, all media units were made instruments of Government propaganda. The Vasundhara Raje led government in Rajasthan as recently as September 6, 2017, promulgated an ordinance which prohibited investigation without prior sanction against judicial officers and public servants. The said ordinance would impose restrictions on media which impinges free speech and expression .Under this law, the media could no longer report on the accusation against such a person until the prosecution gets the go-ahead from the sanctioning authority, which may take up to six months. Such draconian action by an elected government effectively curbs the freedom of the press, guaranteed by the Constitution of India and repeatedly reaffirmed by the Supreme Court of India.

If media is to have any meaningful role in democracy and governance, it is essential that it should be free and independent from the control of the government. A free and independent media provides a key platform for the exercise of freedom of speech and expression which is guaranteed by our Constitution under Article 19(1)(a) as a fundamental right. For the exercise of such a right, it is essential that the citizens have access to balanced, reliable and trustworthy information from the media. What is expected of a responsible media is- to report news in-depth without opinions and manipulations, to provide people with facts.

The media is facing a problem of credibility, and the only way to overcome this is to ensure that they are transparent. Media organizations must have editorial independence and transparent ownership. These qualities are extremely important because media independence has often been compromised by owners who do not value independent views but focus only on commercial interests. It is high time that the media in India corrected itself to regain its lost sense of credibility.

 

Written By:

Garima Agrawal

Third Year, B.B.A. LL.B

 

 

 

LICENSING OF SEX-WORK

India is known to have a growing services sector, soon to become the dominant occupation and economic activity in India. It includes doctors, accountants and advocates among others.

Most of the above-mentioned professions require some form of licensing, permitting practitioners to carry on their activities. This is because their activities are of such nature that they are guaranteed some rights and protection in order to work. It keeps their names on record with a dedicated organisation looking after their welfare and keeping them in line with certain rules and regulations. It recognises their affiliation to their occupation and their right to proceed with related activities.

One “service” related occupation – sex-work – does not mandate a license. It lacks proper legalisation and has variants which are criminalised, depriving practitioners of legal status and protection.

Sex-work is an occupation whereby an individual (mostly women) accept money in exchange of providing sexual services. It has existed across civilisations from time immemorial, and sex-workers have usually enjoyed some degree of respect, even serving as priests in ancient temples. However, today sex-workers face social discrimination, living and working in adverse conditions.

Sex-work is an occupation that many do not take up by choice, but due to desperation. Yet, it is still an occupation all the same, and therefore its practitioners require adequate protection. For this, it is necessary to look at sex-workers as professionals rather than criminals or social deviants and for the Government to enact a proper legislation for their safeguard.

Bulk of the sex-trade is connected to human trafficking, i.e., involuntary. However, there are women who practice sex-work sans any pressure from traffickers. These women have exhausted other means of employment, are vulnerable to violence and exploitation by clients and have no recourse available.

While legislative measures, executive action and even activities of independent groups have attempted to tackle the problem, it continues to persist. Child prostitution in particular is a serious issue.

Sex-work is not per se illegal in India. The Immoral Trafficking (Prevention) Act, 1956 (the principle statute governing activities involving sex-work.), instead of banning sex-work, indirectly discourages such activity by prohibiting sex-work in public places, in brothels and soliciting for sex in public places (Sections 7 and 8).

It is aimed at discouraging trafficking of people, a major issue today. Cities like Mumbai are hubs for international trafficking – notorious for being home to Kamathipura, one of Asia’s largest red-light districts.

The result of prohibition on public solicitation indirectly contributes to the existence of brothels, since voluntary sex-workers mostly turn to pimps (whose activities are criminalised) for assistance and agency.

Pimps tend to act as masters rather than agents, landing women into brothels, dragging them into the world of crime despite attempting to carry out a profession that is not criminalised by law. Sex-work thus becomes a semi-legal profession, its practitioners living on the fringes of the law and the society.

Licensing could give sex-workers legal rights and a legal standing, similar to practitioners of other services such as advocates, doctors, agents of any kind, etc. It could award the following benefits-

  1. Legal Protection

Being a licensed practitioner means the state recognises sex-workers as a class of professionals, governed by a regulatory body. Sex-workers can (social stigma apart) be open about their profession whenever necessary, easily acquiring important resources required to carry on their business, giving them documented legal rights.

E.g. a licensed sex-worker could access medical facilities (condoms, abortions, sterilisations) with fewer hassles. They could record client information in case of any malpractice by the clients, making it easier to pursue legal action against them. Licensing also allows them to practice minus harassment by authorities.

  1. Healthcare

Medical resources become an important part of sex-workers’ professional life. They need condoms in order to practice while immunised against STDs and unwanted pregnancies. Licensed sex-workers present a persuasive case when demanding services, viz. abortions and sterilisation. Also, they could refuse to entertain clients failing to meet certain healthcare standards or refusing to use protection.

  1. Targeting Real Criminals

The actual criminals in this sphere are pimps, traffickers and brothel owners. They act as agents that regulate the supply in the sex “market”. They force (mostly) women to be a part of the trade, restrict their movement, force clients upon them and even take their “fair share” from the sex-workers’ earnings.

Licenses allow sex-workers to function independently of pimps. It will give them the freedom to choose the number of clients they can take on a given day (excess sexual activity could be fatal). With mandatory licencing, it becomes easier to contain child trafficking.

  1. Taxation

Sex-workers could be made responsible taxpayers. It will add to the revenue of the state, since the global value of sex-trade is around $100 billion (according to the website www.havocscope.com which analyses the black economy). Also, it will enable the state to recover the amounts spent on developing the discussed regulations.

The objective of this essay is not to promote the occupation of sex-work, to make the case for a welfare legislation. The ideas of morality cannot be used a veil that covers the issue a section of the society faces. Licensing serves as a way to protect sex-workers and also discourage sex-work with the legal complications involved.

Sources:

  1. The Immoral Trafficking (Prevention) Act, 1956 (India).
  2. Arguments for and against legalising prostitution, DEBATING EUROPE (Dec, 23, 2017), http://www.debatingeurope.eu/focus/arguments-legalising-prostitution/#.Ws4LhYhubIV.
  3. Human Trafficking Statistics, HAVOCSCOPE (Dec. 23, 2017), https://www.havocscope.com/.
  4. Sakshi Khanna, No Means of Livelihood, Women Forced Into Prostitution in Andhra’s Anantpur, NEWS18 (Feb. 14, 2018), https://www.news18.com/news/india/no-means-of-livelihood-women-forced-into-prostitution-in-andhras-anantpur-1247041.html.
  5. Richard Mountford & Radojka Miljevic, Whether or not to legalise prostitution, THE GUARDIAN (Dec. 27, 2017), https://www.theguardian.com/society/2017/oct/16/whether-or-not-to-legalise-prostitution.
  6. Ashwati Mohan, Legalisation of prostitution in India – Pros and Cons, WOMENNOW (Dec. 26, 2017), http://womennow.in/legalisation-of-prostitution-in-india-pros-and-cons/.

 

-Shaarang Iyer and Shubham Mandil,

T.Y.B.A., LL.B

Evidence of Consent in Rape Trials

The prime question in any case of rape is the presence of consent of the victim. Questions on the character of the victim and the veracity of the allegation of ‘force’ made against the accused dominate these trials. Medical reports, testimonies of witnesses, and circumstantial evidence constitute important evidence in rape trials. In light of gender justice, the manner of presentation of certain evidence has overtime, been scrutinized by society and reformed by the legislature to overcome the notions that reflect a bias against women in the law. Considering these changes, this article will focus on the presentation of evidence related to the following issues:

  1. a) Presence of injury as evidence.
  2. b) Character of the woman to be proved.
  3. c) Corroboration of the victim’s account.

                                                                     

Changes in the Nature of Evidence Sought:

The landmark case that caused a hue and cry in the country on the conduct of rape trials was the Mathura Rape case[i]. In this case, the Apex Court held that the sexual intercourse with a girl, while she was in the custody of the police, did not amount to rape. The victim in this case, had approached the police station to give her statement to the police along with other family members but after recording the statement the family members were asked to leave the premises of the station and the girl was asked to stay back, after which she was raped by the police constables within the premises of the police station. Disregarding that the victim would have possibly experienced a sense of fear of the police, the Court reasoned that the absence of any injury marks on the body of the girl showed that she did not resist the sexual act of the policemen and had thus accorded her consent. Following this flawed interpretation presented by the Court, section 375 of the I.P.C was amended in 1983 to recognize other aggravated forms of rape and custodial rape as offences. Moreover, section 114-A was added to the Indian Evidence Act, 1872, according to which the presumption of absence of consent was made the rule. Following this judgment and the consequent public outrage, the Apex Court in the case of Rafiq v. State of Uttar Pradesh[ii] convicted the accused for the offence of rape even when the evidence showed that there was no injury on the body of the victim. These cases altered the course of judicial interpretation on consent by recognizing that the presence of an authority is a force of pertinent influence, and secondly, by laying down that the absence of injury on the body of the victim cannot be inferred to mean the presence of free consent of the victim.

Previously, it was a trend for the Courts to allow a debate on the question of the character of the victim in rape cases to enable the defense to take the plea that the victim was a woman of easy virtue or that she was habituated to sexual activities and had thus accorded her consent to the acts of the accused. This position was altered after the observation made by the Supreme Court in the case of Haryana v. Premchand[iii], wherein it was held that the character of the woman is not a factor to be considered by the court while awarding punishment to an accused of rape.  This position of the court was reiterated in the case of Lillu v.  State of Haryan[iv], where the Supreme Court maintained that the virtue of a woman does not give anyone the license to rape her. This position was further strengthened by the legislature through the Criminal Law (Amendment) Bill, 2003 wherein the proviso to section 146 of the Indian Evidence Act, was omitted and an explanation was added which prohibited the questioning of the victim’s “immoral character” or “previous sexual experience”.

In cases of rape, particularly custodial rape, it is almost impossible to get independent evidence to corroborate the testimony of the prosecutrix. The testimony of a victim of rape is thus admissible as evidence in court. It was observed by Justice A.M Ahmedi in the case of State of Maharashtra v.Chandraprakash Jain[v], that to insists on corroboration of the victim’s testimony, except in rare cases, is an insult to the victim and an addition to her injury. Through this interpretation, the courts have thus considered the sensitivity of such cases while dealing with the evidence. However, in doing so the courts must exercise caution, as observed by the Supreme Court in its ruling in the case of Dilip v.State of Madhya Pradesh[vi], wherein it is laid that though the testimony of the victim is admissible without corroboration, the infirmities in the testimony with regard to the other medical evidence and other evidence should not be ignored by the courts.

Conclusion:

The above judicial rulings on different aspects of evidence in rape trials point out to the change in reasoning adopted by the courts while seeking proof in rape cases. Within the scope of this inquiry, it can be concluded that the changing nature of the evidence required to prove consent in rape cases has come to attain a more pro-victim character. This tilt has helped in bringing about a balance in such trials as it helps overcome the virtual reserve of advantage which was otherwise enjoyed by the accused owing to the social stigma which is attached to rape victims in our society and which was well exploited by the defense to fuel the formation of a bias against the victim.

Bibliography:

 

 

Books:

  • Nuzhat Parveen Khan, Women and the Law (Universal Publishers, 2016).
  • Crime and Justice in India (N.Prabha Uninathan, Sage Publications, 2013)
  • Ishwara Bhatt, Law and Social Transformation (EBC, 2012)

Articles:

  • Saumya Maheshwari, The Language of Evidence in Rape Trials, NLSIU Socio-Legal Review (2014).

[i] Tukaram v. State of Maharashtra, AIR 1979 SC 185.

[ii] AIR 1981 SC 559.

[iii] AIR 1990 SC 538.

[iv]AIR 2012 SC 2281.

[v] AIR 1990 SC 658.

[vi]AIR 2001 SC 882.

 

Name: Clarissa D'Lima
Batch: B.A., LL.B., Third year

AFSPA – A Necessity or a Misused Power?

What is AFSPA?

AFSPA - Armed Forces (Special Powers) Act is an Act of the Parliament of India which was passed on 11 September 1958. It is an Act with just six sections granting special powers to the Indian Armed Forces in what the act terms as "disturbed areas".[1] Under this designated disturbed area all security forces and security personnel are given unregulated and unaccounted power to carry out their operations. Even a non-commission officer has the power to detain and shoot to kill based on mere suspicion that it is necessary to do so in order to maintain “law and order in the disturbed area[2]”.

Violation of Human Rights?

AFSPA has been implemented in many states and its effect in each state varies accordingly. But the fundamental issue of human rights abuse and violation of Article 21 and 22 remains the same.[3] Article 21 of Indian Constitution which declares right to life as a fundamental right[4] is violated by section 4(a) of the AFSPA, which grants power to the armed forces to shoot to kill in law enforcement situations without regard to international human rights law restrictions on the use of lethal force. 

The Article 22 of Indian Constitution states that no person arrested can be detained in custody without being informed and also it is requisite that any person arrested is to be produced before the nearest magistrate within a time period of twenty-four hours of arrest.[5] On the face of it, AFSPA leads to arbitrary detention which is clearly the violation of the said principles in Article 22. The right to life and liberty under Article 21 of the Constitution is violated by section 4(c) of the AFSPA, which fails to protect against arbitrary arrest by allowing soldiers to arrest anyone merely on suspicion that a “cognizable offence” has already taken place or is likely to take place in the future.

 

A Boon or a Bane?

There have been a number of instances of misuse of the power provided by virtue of the Act. The three civilians of Baramulla (J&K) were shot by Indian army at Machil sector in Kupwara district of J&K on 30th April, 2010 and were framed as ‘foreign militants'. However, later with the protest and inquiry, it was established that these persons were civilians and were called by the army to provide them jobs of porters and later were killed in a staged encounter. On 29th May 2009 in Shopian (J&K), two women named Aasia and Neelofar went missing from their orchard on their way back to home. Their dead bodies were found the next day. The people alleged that it was a case of murder and rape by security forces that were camped nearby.

The J.S. Verma committee while looking into legal reforms related to violence against women called for a review of the AFSPA. The committee noted that “impunity for systematic or isolated sexual violence in the process of internal security duties is being legitimised by the AFSPA” and “women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of our country”.[6] While implementation, the Central government had taken into consideration many of the Verma committee suggestions and adopted the recommendations subsequently in an Anti-Rape bill. But, sadly, it left out the suggestions related to AFSPA. As per the criticisms to AFSPA, we know that there is a need to take some steps towards the prevention of misuse of the Act so that the purpose behind the enactment of the Act is not defeated. Reviewing the Act and making modifications to it is the need of the hour to stop atrocities against women, perpetually happening in the areas where AFSPA prevails.

 

References:

[1] South Asia Human Rights Documentation Centre (SAHRDC), Armed Forces Special Powers Act - A study in National Security tyranny, November 22, 1995 (October 5, 2017 10:00 pm), http://www.hrdc.net/sahrdc/resources/armed_forces.htm.

[2] Ramakrishnan M, AFSPA explained: How does it work exactly? , L.M, May 28, 2015.

[3] Armed Forces (Special Powers) Act 1958, Acts of Parliament, 1958 (India).

[4] INDIA CONST. art. 21.

[5] INDIA CONST. art. 22.

[6]Report on the committee on amendments to Criminal Law, PRS India, (September 12 2018, 10:00am) http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf.

 

-Divya Priyank

Third Year BBA LLB

American 3D Printed Gunsmithing: Trump’s Gun Friendly Politics

Gunsmithing has been both a novel and traditional regime in US, before the advent of computer numeric machinery, gunsmithing required cutting, drilling and milling a metal blank to produce a receiver suitable for accommodating the hammer, grip and other parts, but now it is much easier because of uploaded blueprints of these designs, which could be downloaded and transformed into guns with 3D gun printers and the required plastic. However, the celebration of Gun rights could not persist for long, manufacturing of undetectable and untraceable guns with such cost effectiveness could hamper public interest at large, when the State Department ordered Wilson, the person who uploaded such blueprints on the internet websites, to remove the blueprints as it might have violated the international traffic on Arms Regulations, he sued the U.S. Department, Directorate of Defense State Control (DDTC), with Defense Distributed and Second Amendment Foundation as co-plaintiff in the case of Defense Distributed v. U.S. Department of State claiming an infringement of his First Amendment (prior restraint of speech), Second Amendment (denial of the rights of making firearms implicit in right to keep and bear firearms) and Fifth Amendment (denial of due process) rights. With respect to Second Amendment rights, the claimant argued that a right to possess firearms does mean a right implicit to manufacture and make them for self-defense. In response, the State Department acknowledged the ruling of the Supreme Court in cases of District of Columbia v. Heller and Mc. Donald’s v. City of Chicago, which establishes that citizens are free to possess and make firearms which are in common use for self-defense, the defendants further argue that according to the rules, State Government’s permission to export firearms is required, for the purpose of the aforementioned, exports mean: (1) “sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data,” and (2) “disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad, pursuant to which the claimant’s posted blueprints would be freely accessible by foreign governments, associations and other individuals who are not protected under the Second Amendment, and any violation of it will extract heavy penalties as prohibition of such export is a firmly rooted historical regime.

It is pertinent to look at the injunction order by the Seattle District court on such blueprints making guns available in a downloadable form on the internet, which is a transient victory for 19 U.S states and the District of Columbia, which are against such publication as it is inimical to the lives of the residents, more than being used for self-defense, these will be more susceptible to use by criminals and terrorists on account of being that untraceable and imperceptible, which is contrary to public interest as the State might suffer irreparable loss, also the rights enshrined upon the citizens by the First and the Second Amendments are dwarfed by the irreparable damage which the State might suffer. The Texas based company, Defense Distributed was ordered to take down such blue prints in  President Obama’s administration, but the State Department, now lead by Trump’s Secretary of State, Mike Pompeo reached a settlement with Wilson, wherein he would be allowed to upload instructions for such blueprints making it accessible to everyone, irrespective to one’s age, mental health or criminal history, with the right printers and requisite material. Despite Defense Distributed known for its selling of gun parts called “ghost guns” untraceable all over US, the Trump administration agreed to reach to a settlement. Looking at the apocalypse it is capable of creating, New Jersey along with other seven states sued the Trump administration. With a host of questions left unanswered, Trump administration has to answer the public whether lives of citizens mattered him the most or his own political fortunes, to which at present he seems baffled about. Trump’s gun friendly politics at the cost of such exasperated epidemics of gun violence capable of creating devastation at fatal scales could shake the confidence of citizens in the incumbent State administration.

 

Written By- Akanksha Badika

3rd Year B.B.A. LL.B