Sunday, January 15, 2017

Freedom of Speech and Expression

The below article is written by Nirali Parekh.
Also, read A Clipped Bird.
 Freedom of speech and expression is a fundamental right guaranteed to all the citizens residing within the territory of India[1] .It enables and gives opportunity to all  the  citizens to put forth and express their thoughts and opinions, playing an essential role in enhancing the growth and development of the country.
 The allocation of this right basically helps every person to develop his or her own perception or mindset towards any particular circumstance or situation occurring in the country. In other words we can say that this right permits people, to come forward and voice their opinion, making their ideas and views recognized and known to everyone, without any fear of censorship or governmental vengeance. This right motivates everyone to come ahead, take a stand and actively be a part of all the events happening in the country which indeed plays a major role in the smooth working of the country.[2] But this right merely does not imply that a person can speak anything, anywhere without taking into consideration the time, the place or situation he is in or the impact and the consequences he is going to create on the basis of his speech and expression in the society.Sir Winston Churchill said “Some people’s idea of free speech is that they are free to say what they like, but if anyone says anything back, that is an outrage.”
When we talk about the right to freedom of speech and expression , we can say that the various aspects of media, mainly the television and the internet are playing the role of key contendersespecially in this era , in keeping the people informed and updated about everything happening around them. It also plays a vital role in influencing the minds of the people in a certain manner .Media, today we can say that plays  an important role in creating awareness among the people. Various other kinds of media including the newspapers, radio etc in the way of writing or verbal manner definitely make it a point that their thoughts and ideologies reach thousands and millions of people all over the country and even across the world.
Freedom of speech and expression through various kinds of debates on political or socio-legal issues, discussions about the current affairs, talk shows or even through interviewing people instituted in the field of politics and administration, education, health ministry etc, help the citizens of the country to know the truth, the real scenario of the country’s development and even keeps them informed of the steps or the precautionary measures to be taken for a better future.
It is essential for the media to take into account the repercussions that are going to take place in the country, whether it is writing an article in the newspaper or giving a speech in the public sphere. Now the question which arises is whether a line or to be more specific a boundary be drawn pertaining to their work? And if the answer is yes, then to what extent? It is the need of the hour to discuss this issue. To give a simple example , we can say that a journalist or a news reporter putting forth his conceptionor approach related to any particular issue, in the newspaper or broadcasting it on radio or on television may not necessarily coincide with the opinion or outlook of the person who is reading or hearing it respectively that very moment. So then ultimately it results in making the reader or the listener feel disappointed or dissatisfied.
But then too it is to be noted that the importance of media cannot be denied today as it undoubtedly serves as an important tool in incorporating every individual to develop a strong understanding related to various issues taking place in the country including education, poverty, crime, growth and development, health and sanitation, politics etc.
The media should essentially take into account, and must ask itself a few questions before writing or speaking about anything in the public realm. Some of them are given below.
·         Is the information realistic?
·         Is it just a hunch or an assumption?
·         What kind of impact is it going to create on the people in the society?
Whenever a media based person puts down his viewpoint or observation concerning a politician, an actor or may be a socialite they must confirm with themselves that the information they are making known to the audience is accurate and free from any kind of ambiguities or vagueness and if not they might be charged for  libel or slander .
Section 499 of the Indian Penal Code: “Defamation”
Whoever by words either spoken or intended to be read or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm  or knowing or having reason to believe that such imputation will harm the reputation of such person, is said except in the cases hereinafter expected to defame that person.
Section 500 of the Indian Penal Code: “Punishment for defamation”
Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine or with both.
Section 501 of the Indian Penal Code: “Printing or engraving matter known to be defamatory”
Whoever prints or engraves any matter knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine or both.
In Khushwant Singh And Anr. Vs. Maneka Gandhi[3] the appellant Mr. Khushwant Singh was a very famous author. He was very eager to publish his autobiography and later it was recommended to be  published in a book which was titled “Truth, Love and a Little Malice.” This autobiography was containing a chapter headed ‘Gandhi’s and Anands. The respondent  tried to cease the publication of  a few sections of the autobiography  and she being a public figure claimes to have filed the suit as according to her the material in his autobiography was irrelevant and the words and the sentences were disrespectful. So according to her she was justified on her part to have filed the suit of defamation as her sentiments were hurt and also felt offended. The respondent further stated that such an allegation would pose a threat to her as well as her family’s self-respect and position in the society.
Later, the court allowed the appeal by Khushwant Singh and the matter was decided in the favour of the author.  The court took the view that, the freedom of press was prolongated to engage itself in any kinds of debates comprising of any public official or crisis. Therefore, the author was set free to publish his autobiography .
In, Taj Hargey vs Muslim Weekly[4], the claimant was the chairman of the Muslim Educational Centre of Oxford who was also very renowned for his thoughts and ideologies about various issues in Islam. He was a strong supporter of the muslim women when it came to addressing various matters in Islam. He had initiated  the proceedings in the High Court of London against the Muslim weekly, who claimed that his conceptualizations  did not portray him as a true muslim. Later, Mr Hargey won the case, and he was also awarded monetary compensation which was a five figure sum.
In Berkoff v Burchill,[5] the journalist Julie Burchill, had depicted actor Steven Berkoff, as a ‘terrifying’ and an ugly looking person. The court argued that usually such observations are not constituted to be defamatory, but taking into consideration the occupation of the plaintiff ( who was an actor himself), and this profession helped him to earn his bread and butter, it took the view that such a remark by Burchill had made a mockery of the actor in the public. Therefore, the court later constituted this as a ‘ defamation suit.’
In Tolly v JS Fry and Sons Ltd,[6] the claimant was an amateur golf player. The defendant was a chocolate manufacturing firm, who without the consent of the plaintiff had used it’s picture to advertise Fry’s chocolate. According to the claimant, his reputation was at stake because of the advertisement which characterized him of being guilty and  regretful about his profession as an amateur golf player. The court later, gave the verdict in the favour of the plaintiff and awarded him damages.
Media although spreads knowledge and information and keeps everyone aware regarding the various happenings all over in the the world, but at the same time it is necessary on their part to ensure that  their work  does not hurt people’s sentiments or cause them or any kind of mental agony and leave them traumatized.
The audience often targets the media for “Making a mountain of a molehill” that is hyping up small things and presenting it as a big issue by broadcasting it all over in the public domain. So in order to avoid any conjectures or unnecessary hassle or animosity between people , it should take utmost care when it comes to their work. Sometimes they are even asked to publish an apology in the newspaper for the respective errors made by them or even pay some amount of costs and damages.
In Kasabova v.Bulgaria[7] the applicant  was a journalist by profession, who was working at Compass, which was a newspaper of major importance in Burgas( her hometown).In the education system of Bulgaria, the pupils studying there had an option of continuing their studies in a secondary school which was specialized. Now, to get into a specialized secondary school, the pupils had to clear various difficult examinations or else they need to have certain prescribed medical conditions which would lead them directly into the school without giving any kind of other competitive exams. In 2000 somewhere, in the month of June, certain parents complained that the students who were medically quite fit and healthy were granted admissions in this specialized secondary school without giving any kind of other exams after they were diagnosed with illness pertaining for a long time. After this complaint , an inspection was carried on which  discovered many violations in the admission procedures which also included of  granting admission to the students into these specialized schools without passing any exams and suffering from any kind of illness. Later an investigation procedure was initated by the prosecutor’s office on the possibility of bribe taking. The conclusion of the investigation was that there was no proper proof and evidence to show that the officials were guilty of accepting the bribes.
In the month of  September 2000, this journalist published an article headed “Corruption inBurgas Education! Four Experts and a Doctor Sacked Over Bribes?” . The article mainly spoke of the investigation process which was held and also about the bribe taking. Simultaneously the members of the committee wrote to the publication stating that the applicant should be imposed with a heavy penalty and the members refused to accept any allegations . Later other two articles were published by the journalist on the same issue which portrayed the committee  members again guilty of the offence of bribe taking. According to the committee members this was a case of severe defamation , and therefore they filed a criminal complaint against the journalist and the editor of the publication, and also were requesting compensation of 30,000 ( Bulgarian Levs). At the trial court, the journalist was ordered to pay certain damages as he was found guilty of having committed the act of defamation. Later, he moved to the European Courts Of Human Rights for an appeal.
The European Court of Human Rights gave the final judgement stating that the allegation of bribe taking was very and intense in nature, it requires proper verification, analysis and scrutiny rather than mere supposition on the part of the journalist. According  to the court, the applicant had violated the provisions of Article 10 of the European Court of Human Rights . The court also stressed on the statement that the right to freedom of speech and expression must  be at par with the member’s right to personal and private life. It also ordered the applicant to pay certain sum as compensation and damages. But this cannot be a permanent solution.
So it can be concluded that there should be at least some limitations or restrictions put on the freedom of speech and expression so that people do not take this right for granted, there is less violence, people start self- policing themselves and it will also help in maintaining uniformity, discipline, stability and order in the country.An access to free speech plays a crucial role in regulating the country’s progress by giving liberty to everyone in the nook and cranny of the country by providing them the exposure to express their convictions and even make it visible to all, which in turn will motivate the others to come forward and also support in improving the democracy. Even though the Constitution of India provides the right to free speech as a fundamental right, it is important for us to realize that we are expected to proceed in a reasonable manner, that is in a way which is not hazardous in nature and does not cause any grave harm or affect the dignity and reputation of anyone. Also the fact that the Right to Freedom of Speech and Expression is of great significance today cannot be neglected. But as we all know that there are two sides to every coin. Therefore we can say that if this right is taken away from the people, it will hamperthegrowth and developmental progress of the country. On the contrary, if this right is taken for granted it will ultimately lead to chaos and confusion everywhere. To put it more poetically, in the words ofGeorge WashingtonIf the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.” 
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Nirali Parekh is in her third year of B.L.S./LL.B. at Pravin Gandhi College of Law .


[1] Article 19(1)(a) of the Constitution Of India: All the citizens shall have the right to freedom of speech and expression
[2]http://indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html
[3] From the order of the Delhi High Court on 18th September, 2001. Equivalent citations: AIR 2002 Delhi 58. https://indiankanoon.org/doc/1203848
[4] By Tom Whitehead Home Affairs Editor, 5:35 PM BST 08 APRIL 2009. Available at http://www.telegraph.co.uk/news/religion/5126155/Imam-wins-landmark-battle-against-Muslim-McCarthyism.html
[5] {1996} 4 ALL ER 1008. Available at http://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplechapter/140825414X.pdf
[6][1931] AC 333; (1931) 1 All ER Rep 131
House of Lords ©(1931). http://mavrkydefamationcaselaw.blogspot.in/2007/01/tolley-v-j-s-fry.html
[7]https://globalfreedomofexpression.columbia.edu/cases/case-of-kasabova-v-bulgaria/

Wednesday, August 31, 2016

Succession Certificates: Why Everything People Know about Them is Probably Wrong & Why that May be a Good Thing

We all know what succession certificates are, or at least we think we do. The words ‘succession certificate’ brings to mind a document in nature of probate or letters of administration. Therefore, on the death of a member of a co-operative housing society, the society will usually require legal heirs to obtain a succession certificate, before entering their names as members of the society. Even statutory bodies like MIDC or CIDCO also follow the same practice. Even companies at the time of transmission of shares request legal heirs to produce a succession certificate before entering their names in the company’s register.

Monday, May 30, 2016

Annihilation of Caste: The Best Solution? (Part - II)

(This is the second part of a two-part article. First part can be found here.)
Relevance in Modern Times
Caste Untouchability India ConstitutionDr. Ambedkar refers to caste as an “anti-social spirit” i.e.  the “spirit of protecting its own interests.” Although the Constitution of India itself does not provide a definition of ‘caste’ there are just under a hundred references to it in the Constitution. The Constitution uses the term caste in two senses. Firstly, it is used in the term “Scheduled Caste,” usually along with ‘Scheduled Tribes‘, ‘weaker sections,‘ or ‘backward classes.‘ In this sense, caste consists of several groups and tribe. It includes those who endured social or economical discrimination at for centuries. These groups or tribes are those for whom certain special provisions of representation were made due to inter alia inadequate representation during British administration and to make up for  past social, economical and political inequalities as well. Secondly, the Consititution uses caste in articles prohibiting “discrimination on grounds of religion, race, caste, sex” and also, ‘class,’ ‘place of birth,’ ‘language,’ ‘descent,’ and ‘residence.’ In the first sense, caste is a curative measure to make up for historical inequalities. In second sense, seeks to bring about equality in society, with its focus on present and future scenarios, irrespective of the historical inequalities. However, in both senses, the word ‘caste’ functions, as an anti-social spirit protecting its own interests.
Under article 366 (24), of the Constitution “Scheduled Castes” has been defined as “such castes, races, or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be scheduled Castes for the purposes of this Constitution.” Clause 25 of the same article provides a similar definition for “Scheduled Tribe” and refers to article 342 of the Constitution. Article 341 and 342, state that “The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be” Scheduled Caste and Scheduled Tribe, respectively.  Thus, the scope of the terms scheduled caste and scheduled tribes are not fixed. It is dynamic and can easily be widened, narrowed and changed. The framers of the Constitution probably understood that caste may in the future not have the same meaning it did then, and the safeguards must be provided for such a contingency. These provisions look after the apprehensions Dr. Ambedkar put forward in Annihilation of Caste, allowing for discretion to the Government, whenever it felt necessary to exercise the powers under Article 341 and 342.
Dr. Ambedkar’s views on inter-caste marriage as the remedy to destroy caste are still applicable even today. People are not only forced by family to marry within their caste, but preferably also within sub-castes. Incidents of honour killings inspired by inter-caste marriages are reported frequently in the newspapers.
In 2001 at a United Nations human rights conference Dalit activists pressed for a resolution connecting the treatment of “untouchables” to race-based oppression. However, the same failed due to rigorous opposition from official Indian delegates. They argued that the treatment of lower castes differed from the scenario in apartheid South Africa, since the Constitution in India did not promote, an in fact prohibited, untouchability and caste discrimination. The same view was also taken by renowned sociologists such as Kevin Reilly, Stephen Kaufman and Angela Bodino.
In December 2006 Mr. Manmohan Singh, the then Prime Minister of India, became the first leader of India  to publicly compare the condition of  low-caste Hindus with that of black South Africans under apartheid thereby opposing the stance taken by the previous BJP-led government. "Even after 60 years of constitutional and legal protection and support, there is still social discrimination against Dalits in many parts of our country," he said. "Dalits have faced a unique discrimination in our society that is fundamentally different from the problems of minority groups in general. The only parallel to the practice of untouchability was apartheid."

Conclusion
In ‘Annihilation of Caste’, Dr. Ambedkar makes several articulate submissions with respect to caste. He asserts the various contradictions and irrationalities that exist in the caste system:
 “It must be a source of silent amusement to many Non-Hindus to find hundreds and thousands of Hindus breaking Caste on certain occasions, such as railway journeys and foreign travel, and yet endeavoring to maintain Caste for the rest of their lives”
Thus, the rules regarding caste were very often broken and ignored by the higher castes, when convenient and then would be followed and preached again when it became convenient. Thus, the rules governing caste were not concrete and caste as a concept was purely abstract. This constant flux in the nature of the people’s adherence to the caste system represented that the caste system was not something which could be controlled or reformed. 
It is true that a legal remedy by itself cannot solve  a social issue. Change brought about by change in society’s mentality is far more lasting. However, it cannot be ignored that legal remedy itself is also necessary and the various laws prohibiting caste discrimination and untouchability have benefited the nation greatly. Perhaps one day Article 17 of the Constitution and the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 may become simply namesake and the concept of untouchability only found in history books, but that day is not today.
Keeping in mind the literacy rate in India in 1936 and the wide-spread practice of untouchability, Dr. Ambedkar’s views and apprehensions were well founded.  Today, the vast majority of the population condemns untouchability and the trend is rapidly turning in favour of equality of all castes. Thus, texts promoting untouchability are understood to be from a different time and the same have no place in a free world.  All this has only proved Dr. Ambedkar’s submission that caste could not, and should have not, been only reformed, but completely annihilated. Thus, it can be said that Dr. Ambedkar solution to the issue of caste was correct; however, his manner of presenting the solution was such that people were reluctant to appreciate it. Dr. Ambedkar wrote in great length about what he meant by ‘destruction of religion’ and even he knew that people would find the concept revolting, yet the use of the very phrase itself would make most turn a deaf ear to entire notion. Dr. Ambedkar has been criticized for being too blunt and plain. But in some cases this same plainness of speaking has proved to move the people.
 In light of the aforesaid, it is submitted that the ‘Annihilation of Caste’ has deeply influenced social reform in our country and the principles laid down in it are capable of being applied to several other social problems which we may face in the future.
“The ancestors of the present-day English fought on one side or the other in the wars of the Roses and the Cromwellian War. But the decendents of those who fought on the one side do not bear any animosity— any grudge against the descendents of those who fought on the other side. The feud is forgotten. But the present-day non-Brahmins cannot forgive the present-day Brahmins for the insult their ancestors gave to Shivaji. The present-day Kayasthas will not forgive the present-day Brahmins for the infamy cast upon their forefathers by the forefathers of the latter. To what is this difference due ? Obviously to the Caste System. The existence of Caste and Caste Consciousness has served to keep the memory of past feuds between castes green and has prevented solidarity.”


(This is the second part of a two-part article. First part can be found here.)
- - - - - - - - - - - - - - - -

Monday, May 23, 2016

Annihilation of Caste: The Best Solution? (Part - I)

(This is the first part of a two-part article. Second part will be coming soon.)
“...Turn in any direction you like, caste is the monster that crosses your path. You cannot have political reform, you cannot have economic reform, unless you kill this monster.”
-         Dr. B.R. Ambedkar

Introduction
Annihilation of Caste AmbedkarSome of the profound issues of caste discrimination were raised for the first time by Dr. Ambedkar in his undelivered presidential speech “Annihilation of Caste”. The speech was prepared for the annual conference of the Jat-Pat Todak Mandal, a society for abolition of caste system, at Lahore. Prior to the date of the conference, Dr. Ambedkar wrote the speech and sent it to the anti-caste organization to enable them to print and distribute the same. The Mandal insisted on deletion of some passages of the speech, however, Dr. Ambedker declared that he "would not alter a comma”. The conference was withdrawn owing to the “unbearable” views expressed in the speechIn May 1936 Dr. Ambedkar self-published and distributed 1,500 copies of the text. The second edition includes a preface; a prologue, including the correspondence between him and the Mandal; and two appendices, which includes Mahatma Gandhi's review, “A Vindication of Caste” and Dr. Ambedkar's reply to Mahatma Gandhi.

Wednesday, May 11, 2016

Critical Review of the Lokpal and Lokayuktha Bill, 2011

Corruption is a malevolent practice that has to be dealt with very strictly, but  India is one of the most corrupt nations on the globe. Corruption has been a part of the society since the beginning. The fundamental idea of lokpal is borrowed from ombudsman, which has proved to be very effective in keeping a check against corruption.

The Lokpal and Lokayuktas Act is perhaps the main enactment ever, which has been so broadly talked about, both inside and outside Parliament. Thus, generated so much awareness in the public regarding the need to have an effective organization of Lokpal to handle corruption. However, the act passed hitherto is verbose, loaded with negatives and has various cross references.

Monday, April 18, 2016

Buy Back of Shares by Private or Unlisted Company

The provisions relating to buy-back of securities, under the Companies Act 2013 namely sections 68 to 70, which have been notified, have now repealed the provisions relating Companies Act, 1956.

Points to be noted:
1. A company may buy-back its own shares or other specified securities out of—
             (i) its free reserves; or
             (ii) the securities premium account; or
            (iii) the proceeds of any shares or other specified securities:

Thursday, April 14, 2016

Scope of Re-examination under Indian Evidence Act

Witness cross re-examination to kill a mocking birdWith increasing trend of appointment of Court commissioners to overlook witness examinations, lawyers are required to be more vigilant during depositions. Earlier, if any question beyond the scope of re-examination was put to a witness, the Judge would generally not permit such question to be asked, notwithstanding a lack of objection from the opposing party. While reading a commissioner’s report, such a fact may not strike the Judge at all. If an objection to the question by the opposing party has not reflected in the report, rejecting such portion of the deposition may slip the Judge’s mind entirely and that portion of the evidence may remain on record till the proceedings are disposed of. Thus, it is essential to properly understand the scope of re-examination of witness.

Tuesday, April 12, 2016

Procedures you need to know: Voluntary Winding Up of LLP


STEP 1 (CONSENT OF CREDITORS AND MAKING OF DECLARATION):-
A. Making of Declaration
Ø  The majority of its designated partners (being not less than two) must make a declaration in Form No. 2 verified by an affidavit to the effect that the LLP has no debt or that it will be able to pay its debts in full within such period, as may be specified in the declaration, but not exceeding one year from the commencement of the winding up.

Ø  However, such declaration shall have no effect for the purposes of Limited Liability Partnership Act, 2008 (“the Act”) and the Limited Liability Partnership (Winding up and Dissolution) Rules, 2012, (“the Rules”) unless —

Saturday, April 9, 2016

Over 750 Office Space Leases in Mumbai to Expire in 2016

The year 2016 is the year for taking up offices on lease basis. As per research conducted by PROPSTACK, a commercial real estate information and analytics company, the sums involved in the lease renewal, consisting of an average period of thirty-six months, will be approximately Rupees 50 Crore a month. Although, 77% of 750 office lease renewal are below 5,000 sq. ft., the leases range from as low as 500 sq. ft. to 2,35,000 sq. ft.
The Information Technology sector (which includes Information Technology enabled Services sector) and Banking, Financial services and Insurance sector continue to dominate the leasing activity in Mumbai. “Mumbai has remained a financial capital hub where IT-ITeS and BFSI companies have continued to dominate the office space take-up. Last year BFSI, manufacturing and pharmaceutical sector played a major role in leasing apart from the technology firms. This trend is expected to continue in 2016 as well,” said the director of PROPSTACK, Raja Seetharaman. 

Monday, December 7, 2015

Capital Punishment, the Need or Necessity

The present condition in India is such that one should support the abolishing of capital punishment in all cases, except for cases in which public conscience and national security is at stake. Crimes such as treason, rape and mutiny tend to create public outrage in the society. The Supreme Court in its landmark judgment and the legislature in amending the Code of Criminal Procedure in 1976 made it clear that death sentence would be prescribed only in rarest of the rare case.