The Name of the New Statutes in Sanscritised Hindi

(By Adv.Parippally R. Raveendran,

Special Public Prosecutor, Former member, Bar Council of India)

1. After entrusting Prof. Ranbir Singh as the Chairman of the criminal law amendment committee, the Government of India declared that after the 70 years of post-Independence experience, the court have reviewed the working of the Criminal Procedure Code and Indian Penal Code, but no progress has been achieved in the justice delivery system to the expectation. Therefore, the committee has to exhaust for comprehensive reforms in the criminal and allied laws. While introducing the new Bharathiya Nagarika Suraksha Sanhita 2023, the aim and object of the new legislation is stated as “for good governance, an effective and speedy Justice delivery system is needed”.

2. The object of the new legislation is intended for curbing the delay in dispersing justice to the needy and the inordinate delay in conducting the investigation.

3. In the Criminal Procedure Code, 1973, there are 484 sections. But, in the new statute book BNSS, 531 sections are incorporated. Barring police custody, mandatory forensic investigation and enhancing the rights of the victim, all the sections were rearranged in the new statute book.

4. 99.9% of the new provisions are the verbatim reproduction of the existing statute.

5. The existing Indian Penal Code, The Cr.P.C. and Evidence Act the name of these statues are in English Language, whereas the name of the new statutes were either in Sanskrit or Sanskritised Hindi. Bharathiya Nyaya Samhita 2023, Bharathiya Nagarika Suraksha Samhitha, 2023, Bharathiya Sakshya Niyamam, 2023 and the name of these statutes were proposed in violation of Article 348(1)(b) of Constitution of India.

6. Article 348(1) says about the language to be used in the Supreme Court and High Court and the language of the Acts and Bills etc. by virtue of Article 348(1)(a), in the Supreme Court and High Court and as per clause (b) in the textbooks and as per sub-clause (2) in the both houses of the Parliament, the bills and amendments and clause 1(ii) the law passed by the Parliament and the State Legislature, the ordinance promulgated by the President or Governor as per sub-clause (3), all the orders and rules and the laws passed by the Parliament and Legislatures under the Constitution shall be in English language. As per Article 348 of the Constitution, no bill can be introduced in Parliament either in Hindi or Sanskritised Hindi.

 THE NOTABLE CHANGES IN BNSS

1. Section 176 of BNSS or Section 157 of Cr.P.C., by adding a new sub-section (3), when the police receive information about the commission of a crime punishable for more than 7 years, it is mandatory for a forensic team to visit the scene and collect samples as well as cause videography of the process.

2. A proviso has been added to Section 232 BNSS corresponding to Section 209 of Cr.P.C. wherein during the committal proceedings an application filed by the victim shall also be forwarded to the Sessions Court. Similarly, copies of documents such as police report to be supplied under Section 207 Cr.P.C. or Section 230 BNSS shall also be supplied to the victim or to their advocates thereby the right of the victim is substantially enhanced.

3. Significant changes are made to Section 187 of BNSS. As per S.187(2), the judicial custody can be extended not less than 15 days by a magistrate, but in serious offences the remand can be extended up to 90 days and in comparatively lesser offences the accused can be in judicial custody for atleast 40 days . During this period , if the investigation agency requests for a police custody for purpose of investigation the court will be compelled to accede the demand of the police.

As per the existing S.167(2)(a), a Magistrate can authorize custody upto 60/90 days of which only the first 15 days can be in the police custody as signified by the usage of the words “otherwise than on custody of police, beyond the period of 15 days”. As per the existing law over the 15 days are elapsed, no one can be send to police custody even if the arrested persons were not send to police custody for a total of 15 days. This view was taken held in the landmark decisions C.B.I.v. Anupam J Kulkarni (1992 (1) KLT SN 49 (C.No.64) SC = (1992) 3 SCC 141).

4. The new statute of BNSS seems to be more in line with the Sentil Balalji v. State in 2023. In this case, one of the findings of the case is“the maximum period of 15 days of police custody is meant to be applied to the entire period of investigation-60/90 days as a whole”. The court in Sentil Balaji had also urged a reconsideration of the Anupam Kulkarni by a larger bench. The new amendment regarding the police custody will curtail the civil liberties of the citizens and also there is every possibility for misusing the statutory of provision by the police.

5. Section 15 of BNSS is with regard to the search conducted by the police. As per this provision, search is to be videographed and the material objects seized from the search premises is to be produced within 48 hours to the jurisdictional magistrate.

6. A witness protection scheme is to be formulated by the State Governments as per S.298 of BNSS to protect the rights of the witnesses.

7. While recording the statement of the witnesses under S.183(6)(a) of BNSS (Cr.P.C. - S.164), the Magistrate has to be guided by 2 principles-

●    If a woman is giving the statement, a woman Judge is to record the statement.

●    If an offence is punishable with more than 10 years imprisonment, the Magistrate himself records the statement of the witnesses.

8. If a person is arrested beyond the territorial jurisdiction as per S. 82(2) of BNSS, the factum of arrest is to be intimated where the person ordinarily resides in the district and the information of arrest is to be communicated to the concerned district administration.

9. By virtue of S.71(2) and 73, the summons issued through electronic devices can be accepted. As per 227 of BNSS, the summons and warrant also can be served through electronic media.

10. As per Sections 193(8) and 230 BNSS, if the documents of the accused are voluminous in nature, it can be served through electronic media. Under S.173(1) of BNSS, FIR can also be recorded in the digital mode.

11. As part of the investigation under S.176 of BNSS, the statement of the rape victim can be recorded either in her house or at a place of her choice and a woman police officer has to record the statement in the presence of the relatives of the victim and the process of recording the statement is to be video graphed even using a mobile phone.

12. As per S.360 of BNSS, before withdrawal of the case, the victim is to be heard and this is new provision.

13. Before the trial or appeal concludes, the accused shall be required to execute a bond. A new provision i.e., S.483 has been added to BNSS in the Chapter governing grant of bail. This was earlier seen as S.437A as added by Arunachal Pradesh State amendment. As per this section, before the trial or appeal concludes, the accused shall be required to execute a bond to appear before the next court. This provision enables a positive impact on the person so concerned need not be immediately arrested to secure their presence before court. The litigant public and the legal fraternity is keenly observing whether as per the new amendment in Criminal Procedure Code, any substantial change will reflect to reduce the mounting arrears of 5 crore cases pending in our justice delivery system.

When Declaration Needed for Injunction and Recovery

 (By Saji Koduvath, Advocate, Kottayam)

Overview

General Principles as to ‘Injunction’

●    Injunction is granted to ‘prevent breach of an OBLIGATION’.

●    It must be to enforce an individual CIVIL RIGHT.

●    It is a discretionary remedy granted by the civil court.

General Principles as to ‘Recovery’ of Property

●   Plaintiff has to succeed a suit for recovery on title, on the strength of his title.

●  If a person is dispossessed ‘otherwise than in due course of law’, he canrecover the property under Section 6 of the Specific Relief Act, on the strength of his earlier possession.

●   In a suit for recovery on title, even if the defendant claims title as owner and fails   to prove it, the plaintiff can win only if he establishes his title.

●     In a suit for recovery on title, if the defendant establishes his right to continue possession (honouring possession of the plaintiff) as lessee, licencee, mortgagee etc., the plaintiff will fail.

Declaration of Title

●     Declaration is to make clear what is doubtful.

●     Declaration is needed when serious denial or cloud on title. 

●     Declaration is needed as an ‘introduction’ to grant Injunction and Recovery.

●     Declaration is also to tide over Insurmountable obstacle. 

●     Injunction is granted without declaration, when the plaintiff has well established title, or settled lawful possession.

●     No declaration is needed when title claimed by the defendant is null or void.

●     A complete stranger whose interest is in no way affected by another’s legal character is not entitled for a declaration.

Requisites for a Declaratory Suit

In State of M.P. v. Khan Bahadur (AIR 1971 M.P. 65 (A.P.Sen, J.) laid down the requisites for a declaratory suit as under:

 ●    “The requisites for a declaratory suit are well known. In order to obtain relief of this kind, the plaintiff must establish that

  (i)  the plaintiff is at the time of the suit entitled to any legal character or any right to any property;

 (ii)   the defendant has denied or is interested in denying the character or the title of the plaintiff;

 (iii) the declaration asked for is a declaration that the plaintiff is entitled to a legal character or to a right to property, and

 (iv)  the plaintiff is not in a position to claim a further relief than a bare declaration of his title.

  ●  Even if all these conditions are fulfilled, the Court hasstill a discretion to grant or not to grant a declaratory relief depending on the circumstances of each case.”

When Declaration NEEDED (Common Law Principles)

In every Suit for Recovery, Declaration of Title is Not Essential

Persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration. (Anathula Sudhakar v.P. Buchi Reddy (2008 (3) KLT SN 26 (C.No.30) SC). In Sudhakara Reddy v. Lakshmamma, (2014 (4) ALT 404, 2011 (4) ALD 325 (D.B.), the High Court found fault with the lower courts for framing an issue so as to embrace a declaration (as to cancellation of a deed) in the suit seeking injunction simpliciter. (See also:Padmavathi v. Kesava Reddi (1987 (2) KLT 386).

When Injunction granted WITHOUT Declaration (Under Enacted Laws)

When Injunction Refused(even if obligation and breach exists)

Section 41 (a) to (j) Sp.Rlf. Act lays down the instances when injunction is refused. It is:

     ● (a) to restrain – a judicial proceeding –

     ● (b) to restrain – instituting any proceeding in a court not subordinate

     ● (c) to restrain – any legislative body

     ● (d) to restrain –proceedings in a criminal matter

     ● (e) to prevent the breach of a contract – which would not be specifically enforced;

     ● (f) to prevent- not reasonably clear – it will be a nuisance;

     ● (g) to prevent – breach which has been acquiesced;

     ● (h) when equally efficacious relief – certainly be obtained – except – trust;

     ● (ha) if it would impede or delay infrastructure project

     ● (i) if conduct – disentitles – assistance of the court;

     ● (j) if plaintiff has no personal interest in the matter.

Other instances: (Injunction Refused- even if obligation and breach exists)

     1.  If payer is to enforce penal law. Section 4 Sp. Relief Act

     2.  If suit became infructuous

     3.  If prayer granted, ineffective: AIR 1961 All.502

    4.  Brutum fulmen: (AIR 1958 All.706; AIR 1986 AP 306); AIR 1978 HP 2 (BRC neeed) AIR 1957 P.& H.214 (execution in Pakistan)

    5. Civil court Jurisdiction, expressly barred by law: (Various Acts)

    6. Res judicata or O.2 R.2 C.P.C. bar.

Injunction is a Possessory Remedy.

The law as to ‘protection of possession’ by court can be summarised as under:

     ● Possession by itself is a substantive right recognised by law. It is heritable and transferable.

     ● Kuttan Narayanan v. Thomman Mathayi, (1966 KLT 1);

     ● Phirayalal Kapur v. Jia Rani, (1972 KLT OnLine 1191 (Del.));

     ● Nallammal v. Ayisha Beevi, 2017-5 Mad. LJ 864). 

     ●  It is trite law that courts protect settled possession.

     ● Rame Gowda v. M.Varadappa Naidu (2004 (1) KLT OnLine 1239 (SC)).

     ●   Injunction is a possessory remedy.

      ●  Ladies Corner, Bangalore v. State of Karnataka (ILR 1987 Kar.1710), (1987 (1) Kar.LJ. 402).

     ● Patil Exhibitors (Pvt.) Ltd. v. The Corporation of The City (M.Venikatachaliah, J.):  AIR 1986 Karnt, 194, ILR 1985 Kar.3700, 1985 (2) Kar.LJ 533.

    ●  Referred to in Chetak Constructions v. Om Prakash (AIR 2003 M.P.145).

    ●  But, an injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession.

    ● Padhiyar Prahladji Chenaji v.Maniben Jagmalbhai: (2022 (2) KLT OnLine 1109 (SC)).

Defendant Can Resist Prayer for Advance Amount Without Counter Claim

A defendant in a suit for recovery of earnest money can resist the prayer for realisation of advance amount, without a counter claim, because Section 74 Contract Act which speaks as to ‘party complaining of breach is entitled, reasonable compensation’ applies “whether a person is a plaintiff or a defendant” (even if it is needed, otherwise). See: Kailash Nath v. DDA (2015 (1) KLT SN 53 (C.No.71) SC); Satish Batra v. Sudhir Rawal (2012 (4) KLT SN 81 (C.No.66) SC).

If Title of Plaintiff Nullity, Defendant Need Not file a Substantive Suit

In Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia (2004 (2) KLT SN 100 (C.No.120) SC), the defendants contended that the plaintiff’s title, on the basis of the alleged auction sale ‘was a nullity, as it was ultra vires the legal provisions and on the ground of lack of jurisdiction, non-service of demand notice on all the heirs and co-owners’. The Apex Court held as under:

 ●  “If the title claimed by the plaintiff was a nullity and wholly void, there was no needfor any of the defendants including Bajranglal to challenge it by way of a substantive suit.”

When Plaintiff Claims Title, He has to PROVE Title, in Injunction & Possession Suit

In Yamuna Nagar Improvement Trust v. Khariati Lal, AIR (2005 (2) KLT OnLine 1121 (SC)), it is held as under:

●    “In our opinion, when the plaintiff had approached the court for permanent injunction claiming to be owner of the property, it was his duty to prove that he was the owner of the property, the said property remained in his possession and that the defendant had no right title or interest therein. Since the plaintiff failed to prove his case the suit was liable to be dismissed.”

Possession cannot be Considered in Vacuum

In Maria Margadia Sequeria v. Erasmo Jack De Sequeria (2012 (2) KLT SN 46 (C.No.47) SC),
it is held as under:

 ●  “63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum.”  (Quoted in: Ibrahim v. Saythumuhammed (2013 (4) KLT 435).

When Court Decides upon Title, in Injunction Suit.

In Anathula Sudhakar v. P. Buchi Reddy (2008 (3) KLT SN 26 (C.No.30) SC), it is held as under:

         ●   “21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: 

       ●   ….. (d)Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.”

A Void Deed need not be Challenged by Claiming a Declaration

It was also held by the Apex Court in Kewal Krishnan v. Rajesh Kumar (2021 (6) KLT SN 42 (C.No.35) SC), that a void deed need not be challenged by claiming a declaration; and that a plea thereof can be set up even in collateral proceedings.

In Madhegowda v. Ankegowda (2002 (1) KLT OnLine 1018 (SC)), our Apex Court has observed that there is little scope for doubt that the transfer of the minor’s interest by a
de facto guardian/manager having been made in violation of the express bar provided under the Hindu Minority and Guardianship Act, 1956, it is per se invalid. Then it is held as under:

        ● “A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding.”

When a person is NOT PARTY to a suit or a Document, Unnecessary to Annul

It is held in Y. G. Gurukul v. Y. Subrahmanyam (AIR 1957 AP 955), as under:

           ● “When a person is not eo nomine a party to a suit or a document, it is unnecessary for him to have the deed or the decree annulled, and he can proceed on the assumption that there was no such document or decree.” (Followed in Sankaran v. Velukutty (1986 KLT 794.)

See also:

          ● Usman Kurikkal v. Parappur Achuthan Nair (2012 (3) KLT 261)

          ● Sankaran v. Velukutty (1986 KLT 794).

          ● V. Kalyanaswamy v. L. Bakthavatsalam (2020 (4) KLT 913 (SC)).

Cloud – Explained in Anathula – Para 12

A cloud is raised when some apparent defect in his title or some prima facie right of a third party. Not a cloud, if trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title. 

         ● (It should be serious cloud: Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma (2008 (3) KLT OnLine 1121 (SC)) (Quoted in:Muddasani Venkata Narsaiah v. Muddasani Sarojana, AIR 2016 SC 2250).

When declaration refused (S.34 Proviso)           

          1.Further relief possible and not sought for (S.34 Proviso). Where relief of partition is to be sought for, it should be prayed.

          2.Where declaration is a vehicle to launch the weapon of injunction, or recovery – if injunction or recovery itself cannot be granted(or, if granted ineffective:
Brutum-fulmen applies).

Seeking Declaration, Without Prayer for Recovery – Barred by Section 34

In Union of India v. Ibrahim Uddin (2012 (3) KLT SN 73 (C.No.79) SC), the suit was filed for declaration of title of ownership (alone) without seeking consequential relief. (Referred: Ram Saran v. Ganga Devi (AIR 1972 SC 2685), Vinay Krishna v. Keshav Chandra (AIR 1993 SC 957), Gian Kaur v. Raghubir Singh (2011 (4) KLT Suppl.55 (SC)).

When Declaration Given Without Further Relief

        a. No further relief possible on legal character/status or title.

       b. Pecuniary rights (S. 34 is limited to legal character and right to property): State of M.P. v. Khan Bahadur, AIR 1971 MP 65 (A.P. Sen, J.).

Declaration on ‘Legal Character’

Section 34 refers to declaration of status (legal character) or right. Anathula Sudhakar v. P. Buchi Reddy, (2008 (3) KLT SN 26 (C.No.30) SC)), refers to denial/cloud in property rights alone; and notstatus (specifically). Cloud ‘hovering on Legal Character’ is considered in following cases:

          ● Ashoka Sa v. Bidyadhar Patra (AIR 1995 Ori. 59),

          ● Samar Kumar v. Jherna Bera (AIR 2018 SC 334) (Matrimonial status),

          ● Nizar v. Raseena (2018 (4) KLT 870) (Paternity of a child),

          ● Radhakrishnan v. Indu (2018 (3) KLT 664),

         ● United Theological College v. Sunny Kulathakkal (1989 (2) Kar.L.J.456,
      ILR 1989 (Kar.) 3320; See also: AIR 1958 SC 886: Quoted in (2016) 2 SCC 779)
    (Illegal termination of service).

A Complete Stranger not Entitled Declaration

It is held in Ashoka Sa v. Bidyadhar Patra, AIR 1995 Ori. 59, as under:

● “....  A complete stranger whose interest is in no way affected by another’s legal character or who has no interest in another’s property is not entitled to maintain a suit under Section 34.” (Quoted in: Sumathi v. Kamalamma, ILR 2013-3 Ker 259.)

Settled Possession and Established Possession

What is the settled possession or effective possession is made clear in the following decisions:

        ●  Rame Gowda v. M. Varadappa Naidu ((2004) 1 SCC 769),

        ●  Samarpan Varishtha Jan Parisar v. Rajendra Prasad Agarwal (2022 (3) KLT 1150 (SC).

        ●  Poona Ram v. Moti Ram (2019 (1) KLT OnLine 3026 (SC)),

        ●  A. Subramanian v. R. Pannerselvam (2021 (1) KLT OnLine 1168 (SC)).

‘Possession is Good Against all but the True Owner’

This principle is declared in Parry v. Clissold, (1907) AC 73. Though the Supreme Court accepted this principle in Nair Service Society Ltd. v. K.C. Alexander & Ors., (1968 KLT 182 (SC)), it was with a clarification. It reads as under:

        ● “(17) In our judgment this involves an incorrect approach to our problem. To express  our meaning we may begin by reading 1907 AC 73 to discover if the principle that possession is good against all but the true owner has in any way been departed from.

No decree for recovery unless ‘present right to the possession’

While considering the question whether a worshipper can file a suit for recovery, it is held by our Apex Court, in M.Siddiq v. Mahanth Suresh Das (Ayodhya Case) (2019) 1

 SCC 1, that no decree for recovery of possession can be made in such a suit unless the worshipper has the ‘present right to the possession’. But it is pointed out that in such situations, a worshipper must be permitted to sue as next friend of the deity, sue on behalf of the idol itself – directly exercising the deity’s right to sue.

LIMITATION –Declaration

A suit for declaration is governed by Article 58 of the Limitation Act and the period of limitation is three years.

Article 65 and not Article 58 of the Limitation Act Governs

In State of Maharashtra v. Pravin Jethalal Kamdar, (2000 (1) KLT OnLine 942 (SC)), it is held by the Supreme Court that merely for the fact that the plaintiff, besides the relief of possession, sought declaration also is of no consequence, and that in such a case the governing article of the Schedule to the Limitation Act would be Article 65.

In C.Natrajan v. Ashim Bai ((2007) 14 SCC 183), the Apex Court held that in the suit which has been filed for possession, as a consequence of declaration of the plaintiff‘s title,
Article 58 will have no application.(See also: Seshumull M.Shah v. Sayed Abdul Rashid,
(AIR 1991 Kar.273). In S.Krishnamma v. T.S.Viswajith: 2009 (4) KLT 840, it is held that when a declaration regarding the void character of the document is sought for that is which would not govern the period of limitation for the suit, the consequential relief sought for is to be treated as main relief governing the period of limitation for the suit.

Female Genital Mutilation within the Cultural Context,
Combined with the Insights of Foucault’s Bio-power

(By Dr. Lini Priya Vasavan, Assistant Professor, Government Law College, Thrissur and Non-official Member, Kerala Legal Service Authority)

Underlying cultural and gender dynamics that contribute to the vulnerability of women and girls and Female Genital Mutilation is one among the severe manifestation. Female Genital Mutilation (FGM) refers to the practice of altering or injuring the female genitalia for non-medical reasons.¹  It is often carried out for cultural, religious, or social reasons within certain communities. The evolution of the terminology surrounding Female Genital Mutilation (FGM) reflects a growing awareness of the need for accurate and sensitive language to address this harmful practice. The shift from “female circumcision” to “female genital mutilation” highlights the severity and the violation of human rights associated with the procedure. The term “female circumcision” was criticized for downplaying the severity of the practice and creating a misleading parallel with male circumcision, which is a medically accepted and culturally different practice.²

FGM encompasses various procedures, including Clitoridectomy, Excision, and Infibulation. Clitoridectomy involves the amputation of the clitoris or the removal of clitoral prepuce, while in Excision, either or both the inner and outer labia are cut away. Infibulation is the most severe form, involving the narrowing of the vaginal opening by creating a seal, often through stitching.³

FGM is often deeply rooted in cultural traditions and is seen as a way to control and regulate female sexuality, based on the notion of “religious purity.” However, it’s crucial to recognize that FGM is a violation of human rights and has no medical justification. The physical and psychological effects can be severe and long-lasting, affecting the overall health and quality of life for the individuals who undergo such procedures.⁴

The cultural motivations behind FGM are complex, often rooted in gender norms, societal expectations, and the desire to control female sexuality. The belief that the clitoris is considered a “masculine” part of the female genitalia, and the fear of its potential growth being perceived as larger than the male reproductive organ, reflects deep-seated gender biases and societal norms.It’s important to emphasize that FGM has no medical benefits and can lead to severe health consequences, both physical and psychological. Additionally, there is a crucial need to dispel myths and misconceptions surrounding the practice, as well as to address the potential risks of HIV transmission associated with certain forms of FGM.

The severe complications associated with Female Genital Mutilation (FGM) highlight the urgent need to address and eliminate this harmful practice.⁵The physical and psychological consequences can have profound and long-lasting effects on the health and well-being of women and girls who undergo FGM. Excessive bleeding is a common immediate risk of FGM and can lead to severe complications, including death. The procedure itself causes intense pain, and shock can follow due to the traumatic nature of the experience. Inadequate sterilization of instruments used in the procedure can lead to tetanus, a potentially life-threatening bacterial infection. Difficulty in urination is a common complication that can result from FGM. The cutting and alteration of genital tissues can lead to ulceration and injury, causing further complications. The open wounds resulting from FGM are susceptible to infections, which can affect both the genital region and the urinary tract. Infections can lead to systemic conditions like fever and septicaemia, which can be life-threatening,  FGM increases the risk of complications during childbirth, including prolonged labor, increased need for cesarean sections, and harm to both the mother and the newborn.⁶  The scarring resulting from FGM can lead to the formation of keloids, raised overgrowths of scar tissue, Chronic bleeding and infections associated with FGM can contribute to the development of anaemia.

Long-term consequences include the formation of cysts and abscesses, which can cause ongoing health issues, FGM can result in damage to the urethra, leading to problems such as unrestrained urinary flow. The altered genital anatomy can cause pain during sexual intercourse and lead to sexual dysfunction. FGM can result in heightened sensitivity, contributing to ongoing discomfort. Certain forms of FGM have been associated with an increased risk of HIV transmission, emphasizing the broader public health implications, Beyond the physical consequences, the psychological impact of FGM can include trauma, anxiety, depression, and long-term emotional distress.⁷

FGM is considered a violation of human rights and the World Health Organization (WHO) and various human rights organizations have been actively working to raise awareness about FGM, its consequences, and to eliminate this harmful practice.

The UN General Assembly and the Commission on the Status of Women have adoptedresolutions to ban FGM worldwide. Several countries, including some U.S. states and 28 African countries, have specific laws against FGM. Burkina Faso, in 2020, urged global governments to take a comprehensive, multisectoral, and rights-based approach to eliminate and prevent FGM.⁸ In conjunction with international organizations, governments, and NGOs play a crucial role in advocating for the eradication of FGM, supporting affected communities, and promoting gender equality. Additionally, healthcare professionals are essential in this effort.9

In contrast, there seems to be a challenge in India, where there’s resistance to acknowledging the persistence of FGM. Costa Rica, during the Universal annual review of Human Rights at the UNHRC session, urged India to take progressive steps to prevent FGM from the country. The report from Sahiyo,¹⁰a non-governmental organization working against FGM in India, highlights the prevalence of Khafd¹¹within the Dawoodi Bohra community. The religious leaders of this community affirm that the practice is legal and must continue. Despite being categorized as a form of FGM by the UN, the lack of specific legislations in India to prohibit this practice means that it continues legally. This absence of legal provisions is seen as a violation of the rights and freedom of women within the Dawoodi Bohra community. The issue gained international attention when cases related to the Bohra communities practicing FGM were reported in Australia and the United States. The international legal arena has acknowledged FGM as a human rights violation, and cases outside India have prompted legal scrutiny. The Ministry of Women and Child Development initially called for the Bohra community to voluntarily stop the practice or face criminalization. However, the Government later reversed its stance, claiming a lack of official data on the existence of FGM in India.

It is noteworthy that the absence of specific references to FGM in the Quran, and the practice has been banned in several Muslim-majority countries.¹²The religious text followed by the Bohra community, Daim al-Islam, does endorse the practice of Khafz contributing to its continuation. The complexity of the issue, involving religious beliefs, legal considerations, and human rights, underscores the challenges in addressing FGM within specific cultural and religious communities.

The complex interplay between cultural practices, religious beliefs, and legal considerations underscores the challenges in addressing and eradicating FGM in India. Ongoing efforts, both at the legal and societal levels, are crucial for meaningful progress in eliminating this harmful practice and protecting the rights of women and girls.The Public Interest Litigation (PIL) filed by Sunitha Tiwari on FGM was admitted by the bench led by then Chief Justice Ranjan Gogoi.¹³  The Supreme Court expressed explicit concerns over the health of girls and women, emphasizing the harmful effects of the practice. The Court suggested scrutinizing female circumcision through the lens of the Protection of Children from Sexual Offences (POCSO) Act, asserting that if women do not want it, it cannot be imposed.It also highlighted the need for even essential religious practices, like FGM, to pass the test of constitutional morality. The protection of women’s rights, including bodily integrity and autonomy, was a central concern. The PIL was bundled with other petitions addressing women’s rights in various religious contexts, reflecting a broader examination of issues related to gender equality and equity.

The PIL filed was referred to a seven-member bench in 2019, which was later confronted with overarching religious questions. A review bench constituted in November 2019 referred the matter to a nine-member bench. The court’s consideration of various issues related to women’s rights, combined with constitutional morals, was deemed necessary for a comprehensive and coherent judgment.14The Supreme Court of India has, in various instances, emphasized individual autonomy and bodily integrity. Recent judgments, such as the one stating that bodily integrity is protected under Article 21, affirmed that individuals cannot be forced to be vaccinated.¹⁵

The participation of the State Government and the Supreme Court in this process is analysed in this context through the Foucault’s concept of bio-powerie. the State’s capacity to regulate individuals by controlling their bodies.¹⁶ Concept of biopower describe the ways in which modern States exert control over populations through regulation of life itself. It involves the management and control of populations through various institutions and practices, including health policies, surveillance, and other forms of social regulation.The State, through various techniques, seeks to use bodies as a means to control populations. The acknowledgment that female bodies are treated as property, regulated through the practice of FGM, presents an opportunity for the Supreme Court to examine the role of the State in regulating women’s bodies. According to Foucault, the human body is the site through which power is exercised. FGM, as a practice, fits within the Foucauldian conception of using bodies to control populations. In the case of khafz, it is argued that such mutilation is necessary for the attainment of purity, contributing to the control of women’s behaviour and restricting their bodies solely for reproduction.Foucault’s concept extends beyond the State to include institutions such as religious establishments. The prescription of women’s bodies, negating their right to bodily autonomy and privacy, is seen as an exercise of biopower by institutionalized religion. The Dawoodi Bohra community’s claim that FGM is necessary for purity aligns with the notion of using bodies to control behaviour within a religious context.Foucault discusses bio-politics, where biological issues become subjects of political discourse and policy development. Issues related to women’s bodily autonomy, such as FGM, are debated politically.

In India, the practice of khafz within a minority religious community becomes a subject of political discussion, often under the banner of religious freedom. It is emphasized that the Supreme Court should recognize the rights of women and children to control their bodies and challenge religious claims to govern them. This aligns with the idea that biopower should be justified rationally, and explanations regarding the protection of life, well-being, and health play a crucial role in nurturing biopower.

In applying Foucault’s bio-power framework to the issue of FGM allows for a nuanced understanding of how power operates in the regulation of bodies, particularly within religious and cultural contexts. It provides a theoretical lens through which the Supreme Court can critically examine the practice of khafz and its implications for the rights and autonomy of women and children.

In conclusion, the efforts to combat FGM should be comprehensive, involving a combination of legal, educational, and healthcare measures. By addressing the root causes, raising awareness, and providing support to those affected, societies can work towards eliminating this harmful practice and promoting the rights and well-being of women and girls worldwide.The efforts to address FGM involve not only raising awareness but also implementing legal measures to prohibit and penalize the practice. Community engagement and education are essential components of any strategy to eliminate FGM, as it is often deeply embedded in norms and beliefs. Empowering women and girls with knowledge about their rights and providing support for those who have undergone FGM are critical steps toward ending this practice.The process including raising awareness, advocating for legal measures, and providing support for affected communities. These efforts could eliminate the practice, protect the rights of women and girls, and promote gender equality on a global scale.

Foot Note:

1.Dame Karlene Davis and Christine McCafferty, Female Genital Mutilation, Radcliffe Publishing, Oxford, Seattle, p.1, 24 (2005).

2.Bret L. Billet, Cultural Relativism in the Face of the West, The Plight of Women and Female Children, Palgrave MacMillan, 2007.p.46-53

3.Female Genital Mutilation/Cutting, A Statistical Exploration, UNICEF, 2005.

4.Charlotte Proudman, Female Genital Mutilation When Culture and Law Clash, Oxford University
Press, OX26DP, United Kingdom, p.45-47.

5.   Kyoko Nakamura, Kaori Miyachi, Yukio Miyawaki, Makiko Todo Editor, Female Genital Mutila-tion/Cutting, Global Zero Tolerance Policy and Diverse Responses from African and Asian Local Communities,Springer.

6.A systematic review and meta-analysis of the consequences of female genital mutilation on maternal and perinatal health outcomes in European and African countries, Fatoumata Syllal, Caroline Moreaul, Armelle Andro, accessed from  https://gh.bmj.com/content/5/12/e003307.

7.Health care providers’ and mothers’ perceptions about the medicalization of female genital
mutilation or cutting in Egypt: a cross-sectional qualitative study, Omaima El-Gibaly, Mirette Aziz and Salma Abou Hussein, BMC International Health and Human Rights, 19, Article Number 26 (2019), accessed from https://bmcinthealthhumrights.biomedcentral.com/articles/10.1186/s12914-019-0202-x.

8.Ngianga, Bakwin Kandala, Paul Nziga Komba, Female Genital Mutilation around The World, Analysis of Medical Aspects, Law and Practice, Springer, p.206-233.

9.Kopelman LM. Female circumcision/genital mutilation and ethical relativism. Second Opin. 1994, 20(2), p.55-71.

10.This was the first such large-scale survey on the subject and Sahiyo conducted it from July
2015 to January 2016. Nearly 400 Bohra women from around the world answered the
questionnaires emailed to them through the snowball method, and Sahiyo found that 80% of
the respondents had been cut. Female Genital Cutting, A media Workshop conducted by
Sahio. Accessed from sahiyo.org/images/resource-pdf/media-workshop-report-for-fgc_updated_
all-pages.pdf

11.Caroline Lisa,Talking about Female Genital Mutilation A Guide to Safeguarding for Professionalswho Work with Children, Routledge, 2022, p.24,76.

12.Social effect and female genital mutilation (FGM) OUEDRAOGO, Salmata Université de Sherbrooke, HEC Montréal. P.15.

13. In  the  case  of  Sunita  Tiwari  v.  Union  of  India (2018 (3) KLT OnLine 3177 (SC) = (2019) 18 SCC 719),
which has recently been referred to a constitutional bench, a comprehensive set of remedies is being pursued. It advocated for a comprehensive prohibition of the practice of female genital mutilation in India. Urged the court to declare it a criminal offense, characterized by cognizability, non-compoundability, and non-bailability. Additionally, the plea calls for the court to issue directives to the State, urging the formulation of more stringent laws to address and prevent this practice. Further seeked a declaration from the court regarding the illegality and unconstitutionality of the practice, thereby reinforcing the stance against female genital mutilation within the legal framework.

14. Kantaru Rajeevaru v. Indian Young Lawyers Association(2019 (4) KLT OnLine 3029 (SC) = (2020) 2 SCC 1). The Supreme Court’s recent decision involves the referral of the Sabarimala temple case, along with three other pending cases addressing women’s rights in religious
contexts, to an expanded seven-judge constitution bench. This places the Apex Court in
potentially contentious and conflicting legal territories. The newly constituted bench is entrusted with the challenging task of striking a balance between the Right to Freedom of Religion and other constitutionally-guaranteed rights, particularly the Right to Equality.

15. Jacob Puliyel v. Union of India (2022 (3) KLT SN 55 (C.No.43) SC = 2022 (3) KLT OnLine 1003(SC) = Writ Petition (Civil) No. 607 of 2021, is notable for its comprehensive reflection on the significance of upholding personal autonomy. The court underscored that any mandate conflicting with personal autonomy must be based on sound reasoning and proportionality. The judgment reinforces the existing legal stance that any unwarranted infringement upon personal autonomy is deemed unconstitutional. Moreover, it establishes that executive decisions in such matters, even those related to critical public health, are subject to judicial review. This reaffirms the principle that the protection of personal autonomy is paramount, and any limitations must be justifiable and proportionate under the law

16.Michel Foucault, Power: The Essential Works of Michel Foucault 1954-1984, Penguin Books Limited, 2019.Also see Nick J. Fox, Foucault, Foucauldian and Sociology, the British Journal of Sociology, Vol.49, No. 3, 1998, p. 416, for similar results also check- Bingham, Charles W, A Dangerous Benefit: Dialogue, Discourse, and Foucault’s Critique of Representation, Interchange, 2000, p 354. Michel Foucault (1926-1984) emerged as a preeminent intellectual of the twentieth century, significantly impacting various fields such as history, sociology, philosophy, and literary criticism, and standing out as a key figure in postwar France. His influential body of work has left a lasting imprint on these disciplines, shaping scholarly conversations and prompting critical reflections on power, knowledge, and societal structures. Michel Foucault’s concept of “biopower” is a key element of his later work, particularly explored in his lectures and writings from the 1970s. Biopower refers to the ways in which modern States and institutions exercise power over individuals and populations by regulating and controlling various aspects of life, particularly in terms of health, reproduction, and overall well-being.

No Heartbeat for the Highest Court

(By K. Ramakumar, Sr. Advocate, High Court of Kerala)

“Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless.”Welcome and wise words indeed from the highest Court of the country (See Steel Authority of India Ltd. v. Sales Tax Officer, Rourkela I Circle & Ors. (2008 (3) KLT OnLine 1136 (SC) = (2008) 9 SCC 407). The Apex Court later amplified the position inKranti Associates Pvt. Ltd. v. Masood Ahmed Khan  (2010 (4) KLT SN 9 (C.No.10) SC = (2010) 9 SCC 496).

“The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognized a sort of administrative orders and quasi-judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the Judgement of this Court in in A.K.Kraipak & Ors. v. Union of India & Ors., reported in (1969 KLT SN  15 (C.No. 29) SC = AIR 1970 SC 150.”

Long prior to that, in the well-known Mohinder Singh Gill v. Chief Election Commission, New Delhi (1978 KLT OnLine 1006 (SC) = AIR 1978 SC 851), Shri Justice Krishna Iyer in his inimitable style declared as follows,

“Aside from these is yet another, bearing on the play of natural justice, its nuances, non-applications, contours, colour and content. Natural justice is no mystic testament of judge-made juristics but the pragmatic, yet principled, requirement of fairplay in action as the norm of acivilized justice system and minimum of good government – crystallized clearly in our jurisprudence by a catena of cases here and elsewhere.”        (underlining supplied)

A civilized justice system therefore mandates reasoned order and not a cryptic or one-lined one leaving the litigants to conjecture or guess.

A Constitution Bench of the Supreme Court in S.N.Mukherjee v. Union of India (1990 (2) KLT OnLine 1104 (SC) = AIR 1990 SC 1984) had emphasized the need for recordingreasons. Please note the words,

“…including exercise of judicial or quasi-judicial functions.”

The Supreme Court adds,

“Therefore except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons.”

This is because reasons exclude chances of arbitrariness and assures a degree of fairness in the process of decision making.The recording of reasons therefore is very much part not only of the principles of natural justice but also the part of the right to know.
Shri Justice Mathew described reasons as,“the links between the materials on which certain conclusions are based and the actual conclusion”  (See Union of India v. Mohan Lal Capoor 1973 KLT OnLine 1179 (SC) = (1973) 2 SCC 836).Two Division Benches of the High Court of Kerala in Mathew Joseph v. State of Kerala (2021 (2) KLT 925) and Thadevoos v. Kochi Corporation (2022 (1) KLT 65) have echoed the heartbeat theory evolved by the Supreme Court and declared in unmistakable terms the necessity of a “speaking order”, an expression coined by Lord Chancellor Earl Caims. Judgements therefore must speak for themselves and should not be like “the inscrutable face of a sphinx”. See the catena of decisions on the point (See Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjunwala (1961 KLT OnLine 1232 (SC) = AIR 1961 SC 1669), (AIR 1967 SC 1806), Mahabir Prasad Santosh Kumar v. State of U.P. (1970 KLT SN  22 (C.No. 27) SC = AIR 1970 SC 1302), Travancore Rayon Ltd. v. Union of India (1969 KLT SN  37 (C.No. 75) SC = AIR 1971 SC 862),
Woolcombers of India Ltd. v. Woolcombers Workers Union (1974 KLT OnLine  904 (SC) = AIR 1973 SC 2758), See Union of India v. Mohan Lal Capoor (1973 KLT OnLine 1179 (SC) = AIR 1974 SC 87) and Siemens Engineering & Manufacturing Co. of India Ltd. v. Union of India (1976 KLT OnLine 1054 (SC) = AIR 1976 SC 1785).

In H.H. Shri Swamiji v. Commissioner (1979 KLT OnLine 1011 (SC) = AIR 1980 SC 1),
the Supreme Court said,

“Reason is the soul of the law and when the reason of any particular law ceases, so does the law itself.”

Large amount of caselaw exists on the point and it is not expedient to refer to all of them. Suffice to say that the principle is far too embedded in our legal system that reasons are not only its soul, and the link, but also its life and its heartbeat.

Every litigant has a right to know for what reasons his case is either rejected or accepted. This is part of his Fundamental Right. It is the backbone of every civilized legal system as well, as decision-making is not confined to administrative authorities but to judicial forums as well. If the right to know is part of a citizen’s right, is he not entitled to know why the highest Court of the country negates his final and pulsating knock at the doors of that Court? The Apex Court however ordinarily rejects a Special Leave Petition filed under Article 136 of the Constitution of India with a one-lined order. The article no doubt states “the Supreme Court may in its discretion”. However the Rules of that Court mandate that every Special Leave Petition must by compulsion state the substantial grounds of law on which the Special Leave Petition is supported.

Yet the Supreme Court rejects a Special Leave Petition ordinarily by a one-lined order: ‘The Special Leave Petition is dismissed’ or ‘We are not inclined to grant special leave.’

Should not the heartbeats and the soul of law and the life-links move the highest Court of the country when the principle of law is that, even a judicial decision must be supported by reasons, discretionary powers not excepted? It is humbly and respectfully submitted – ‘Yes’.

It looks anomalous that the highest Court of the country which commands all authorities whether administrative, quasi-judicial or judicial, to support their decisions with reason, failing,inviting invalidation, does not ensure its own orders are in line with that great principle.

The Marrakesh Treaty and the Indian Copyright Act Amendment: Have they Really Benefitted the Differently Abled ?

(By Dr. Raju Narayana Swamy, IAS)

Introduction

In 2013, the Member States of the WIPO adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled.  The Treaty addresses the ‘book famine’ – a nomenclature for the low number of books and other copyright protected material that is accessible to the visually impaired.  To quote none other than the President of the World Blind Union, “The Marrakesh Treaty is much more than a Treaty about books.  It is a historic human rights instrument.  Access to published works means the potential for blind and partially sighted children and adults to live integrated, productive lives.” 

As the preamble proclaims, “The aim of the Treaty is to build a solid foundation to ensure the widespread dissemination of accessible material recognizing that many Member States have established limitations and exceptions in their national copyright laws for persons with visual impairments or with other print disabilities, yet there is a continuing shortage of available works in accessible format for such persons.” To put it in simple terms, the Treaty addresses copyright as barrier to accessibility. It requires its contracting parties to adopt exceptions to their copyright laws to allow making, distributing, exporting and importing copies in accessible formats. It requires the Member States to ensure that they comply with the obligations under the Berne Convention, the TRIPS Agreement and the WCT (WIPO Copyright Treaty). This is because the copyright works that are in the centre of the ‘book famine’ problem are governed by these instruments.

In June 2014, India became the first country to ratify the Treaty.  On September 30, 2016,  the Treaty came into force by formally gathering 20 nations that acceded the Treaty (viz) India, El Salvador, UAE, Mali, Uruguay, Paraguay, Singapore, Argentina, Mexico, Mongolia, Republic of Korea, Australia, Brazil, Peru, Democratic People’s Republic of Korea, Israel, Chile, Ecuador, Guatemala and Canada.

The Background

Electronic text is more accessible than printed books.  For a blind person in a physical library, the only option to access the information is to have it read out loud.  On the contrary in the case of a text file, it can be sent to a braille display or alternatively text-to-speech software can be used to read it out loud.  Thus compared to paper and ink, text files are wide open to the blind. In fact, today technological advances have enabled the visually impaired to access material in ways that might have been qualified as fanciful some decades ago.  These include Screen Readers, Talking Newspapers (audio recordings of news articles in newspapers), Magnifiers, Optical Character Recognition (OCR), Braille Translation software and the like .

But Digital Rights Management (DRM) - which is often used to lock down content – can restrict those uses.  Moreover law continued to lag behind and it was almost impossible for the blind to access a wide cornucopia of works without the permission of copyright owners.

Beginning in 2004, WIPO examined access to works for the blind.  A WIPO study in 2007 estimated that only about 5% of published books are available in an accessible format.  For the rest, if the book is to be read, someone must convert it in to an accessible format.  A series of discussions lasting nearly a decade led to the Marrakesh Treaty. As countries change their laws to allow making accessible format copies of works, this will allow the conversion of a greater portion of works to accessible formats. The biggest change ushered in may be that as people create accessible copies, they can share them across borders.  This means that the cost and effort to convert something to an accessible format is less likely to be duplicated globally.

Salient Features of the Treaty

a) Works Covered

Article 2(a) of the Treaty defines “works covered.”  This refers to the types of material which can be transcribed or distributed under the terms of the Treaty. Works such as literary and artistic works in the form of text, notation and/or related illustrations  made publicly available in any media have been covered.  This definition is rather narrow as it does not cover photographic works,  cinematographic works, sound recordings, dramatic works, broadcasts, performances etc.  The exclusion of audio visual works, films and data bases is an unfortunate choice.

b) Beneficiaries

Article 3 of the Treaty defines “Beneficiary Persons”.  The beneficiaries under the Treaty includes.

1.    Blind persons

2.    Persons with visual impairment that prevents them from reading like a normal person and

3.    Person who cannot hold or manipulate a book or move eyes like a normal person to read a work.

Visually Impaired Persons or dyslexic persons, it needs to be mentioned here, range from those with only light impairment to the inability to read  a text without   assistive technology.

The inclusion of ‘print disabled’ - anyone who cannot access print  due to any form of disability – as a beneficiary furthers the objective of nondiscrimination and  equal opportunity.  It reminds us of the concept articulated by George Kerscher to describe persons who cannot “access print because of a visual, physical, perceptual , developmental, cognitive or learning disability.”However it does not cover people with auditory issues, mental disability etc, who also have problems with accessing printing works.  Moreover, Article 3 does not clarify the qualifying indicators for ‘blindness’, ‘visual impairment’ etc.  The Treaty leaves the specifications of the spectrum of impairments and disabilities to be decided by national laws – hoping that all nations follow a social model of  disability and include all who are in real need.

c) Authorized Entities and Cross Border Exchange

Article 2(c) of the Treaty defines “authorized entity” as an entity that is authorized or recognized by the Government to provide education, instructional training, adoptive reading or information access to beneficiary persons on a non-profit basis.  The Article specifically states that authorized entity also includes a government institution or non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations. It is worth mentioning that to qualify as an authorized entity there is no specific process.

Article 4(2) seeks to address the exceptions created by the member states in their national copyright laws.  It seeks to permit authorized entities, without the authorization of the copyright right holder, to make an accessible format copy and supply these copies to beneficiary persons by any means, including non-commercial lending or by electronic communication when all of the following conditions are met:-

  i)  the authorized entity wishing to undertake the said activity has lawful access to that work or a copy of that work.

  ii)   no changes are introduced other than those needed to make the work accessible to the beneficiary person.

  iii)  such accessible format copies are supplied exclusively to be used by beneficiary persons and

  iv)   the activity is undertaken on a non-profit basis.

To put it a bit differently, this gives them the right to reproduce, the right to distribute, the right to make it available to public and the right to make changes to the work to convert it in to an accessible format.

Article 5(2) which deals with cross border exchange of accessible format copies specifies that a contracting party may fulfill Article 5(1) by providing a limitation or exception in its national copyright law such that authorized entities shall be permitted (without the authorization of the right holder) to distribute or make available for the exclusive use of beneficiary persons accessible format copies to an authorized entity or to a beneficiary person in another Contracting Party.  Read with Article 6, it gives authorized entities access to the material from the importing country without the prior consent of the copyright owner.

Thus the Marrakesh Treaty mandates national laws to allow cross border exchange of works in accessible format provided the following conditions are met:-

  a)    Accessible works are exclusively distributed to differently abled persons.

  b)   The Three Step Test as laid down in the Berne Convention and later in TRIPS and     WCT is satisfied.

       i)  The exception or limitation must be a special case.

       ii)  It does not conflict with the normal exploitation of the work and

       iii)  It does not prejudice the legitimate interests of the copyright holder.

To be true to facts, Article 11 orders that Governments carve exceptions so as to make sure that the interests of authors are not unreasonably prejudiced.

The Indian Saga

On May 17, 2012 – much before the Marrakesh Treaty came into picture – the Indian Parliament introduced a rather liberal disability friendly copyright exception.  More specifically under Section 52 of the Act, which concerns fair use dealing, Section 52(1)(zb) was introduced which exempts from infringement “the adaptation, reproduction, issue of copies or communication to the public of any work in any accessible format by

  i) any person to facilitate persons with disability to access to works including sharing with any person with disability of such accessible format for private or personal use,  educational purpose or research or

  ii) any organization working for the benefit of the persons with disabilities in case the normal format prevents the enjoyment of such works by such persons.

Provided that the copies of the works in such accessible format are made available to the persons with disabilities on a nonprofit basis but to recover only the cost of production.  Provided further that the organization shall ensure that the copies of the works in such accessible format are used by persons with disabilities and takes reasonable steps to prevent its entry into ordinary channels of business.”

Thus the section brings with its ambit the following broad kinds of activities:-

  i)     Conversions by the disabled persons for his/her own use and for sharing with others in the community.

  ii)    Conversions by third parties (individuals or organizations) working for the benefit of the disabled on a nonprofit basis.

In case the conversion and distribution are done for profit, the concerned entity will have to apply under Section 31 B (Compulsory License for benefit of disabled).

The Indian copyright disability exception marks a watershed in the history of copyright and disability jurisprudence The provisions therein apply not just to the visually impaired, but to the disabled in general.  It was the culmination of more than a decade of concerted advocacy by a diverse and disparate group of experts.  It helped build significant momentum for an international treaty.

ABC & Sugamya Pustakalaya

No discussion on the Marrakesh Treaty will be complete without a reference to the ABC(Accessible Books Consortium) which is a public private partnership led by the WIPO.  It includes libraries for the blind, standards bodies, organizations representing authors, publishers and collective management organizations apart from of course organizations that represent people with print disabilities such as the World Blind Union.  The goal of ABC is to increase the number of books in accessible formats worldwide and to make them available to the visually impaired.  On the Indian front, Sugamya Pustakalaya represents the country’s largest collection of online accessible books.

The field reality in India

Several studies have been conducted on whether the provisions in the Indian Copyright Act have been effectively used for the benefit of the visually impaired persons and  whether the amendments therein have offered any ideal benefits to the disabled community such as bringing them closer to the copyrighted material.Of these, special mention must be made of the research paper by Ms.Anjana Girish and Ms.Saraswathy Vaidyanathan which concludes that although India has hit the mark in drafting suitable legislation, there are deficiencies in its implementation. To quote just an example, even State Government websites used for payment of employees’ salaries are inaccessible to visually impaired persons as it is not compatible with screen reading assisting software.

The study highlighted:-

●     The provisions in the Marrakesh Treaty to facilitate cross border exchange of accessible format copies has been scarcely utilized.

●     Awareness of copyright law and needless to say of the amendment therein is abysmally low.  In fact even government functionaries are unaware of the policy per se and the beneficial provisions.

●     Limited financial help or capacity and low technical capacity

●     Poor communication with authorities with respect to grievance redressal

●     Lack of volunteers to convert literature texts to audio books.

●     No steps are taken to ensure that the accessible format copies are available in regional languages.  This creates a barrier in the holistic development of the visually impaired community.

To put it in simple terms, incorporation of the provisions beneficial to the visually impaired persons has not aided in improving their access to copyright works. This is an alarming situation which calls for immediate intervention.  One possible  solution could be issue of a mandatory directive to publishers with respect to printing multiple accessible formats like the United States.  Another step could be to ensure that websites are designed with a World Wide Web Consortium (W3C) format which makes every content available to visually impaired persons.  Public libraries need to be mandated to devote space for the blind. Needless to say,  all these have to be preceded by serious conscientisation efforts  and establishment of a database comprising of audio books.  Only a multi stakeholder approach in collaboration with all the key players - governmental bodies, authorized entities  etc - can save the day.  Otherwise the fruits of the Marrakesh Treaty will never reach the 63 million visually impaired people in the country – of whom 8 million are blind.

Conclusion

The Marrakesh Treaty symbolizes an attempt to bring in a more balanced approach between authors and users and marks a huge step forward towards inclusivity.  It underlines the need for social integration and cultural participation of the 285 million visually impaired people across the globe - of whom 39 million are blind.  It is to be viewed in the back drop of the reality that the shortage of accessible materials for them is due in part to gaps in international and national IP laws. Its importance lies in the fact that it is the first time human rights principles are enshrined in an international copyright treaty.

The Marrakesh Treaty is part of a growing body of internationally recognized disability rights law and involved a decade of negotiation and advocacy.  It follows the rapid and widespread ratification of the CRPD (Convention on the Rights of Persons with Disabilities) which recognizes the rights of equality and non – discrimination, the right to accessibility, the right to education and the right to participate in political and cultural life among others.  States that comply with the Marrakesh Treaty also may be able to better respect, promote and protect rights contained in the UDHR.

Copyright, it must be mentioned here, is perceived as a hindrance to the free flow of information.  The main reason why copyright owners are reluctant to provide accessible format copies for the disabled is that they feel the market that caters to visually impaired persons’ needs is unprofitable.  Therefore they are not considered by the publishers as a commercially viable customer group.  Another concern of publishers is that  converted books are also often used by persons who are not visually impaired, thereby leading to a loss in the market. 

To put it more succinctly, the intersection of technology, market failure and copyright laws creates a complex access dilemma for the visually impaired, depriving them of equal opportunity.  It is in this background that the Treaty is to be viewed – as the first international legal instrument that seeks to address a specific impediment (i.e.,) the issue of book famine for the visually impaired.  Though the Treaty does not take into account the interests of persons with other disabilities, it is no doubt a step in the right direction.  It proves that positive change can be made even in giant global institutions and against great odds.  But the picture in the field is not so rosy.

Despite perceptions to the contrary, the rise of internet availability and mobile communications technology does not mean automatic accessibility for vision impaired persons.  The logistic of practical access and integration with educational opportunities remain challenging. Conversion of books to Braille, large audio or electronic files  requires political will, time and resources that not all Governments have been willing to support.  However the progressive developments recognizing State obligations to respect, protect, promote and fulfill the rights of persons who are differently abled in the backdrop of advocacy by DPOs (Disabled Persons Organisations) is a silver line in the horizon.  One can only hope and trust that the glorious day on which the noble objectives of the Marrakesh Treaty are realized in letter and spirit is not too far away.

References

1.   N cube CB, Reid BE, Oriakhogha DO, “Beyond the Marrakesh VIP Treaty: Typology of copyright access – enabling provisions for persons with disabilities”, JWorld Intellect Prop. 2020 : 23.

2.   Lida Ayoobi, “The Marrakesh Treaty, Fixing International Copyright Law for the  Benefit of the Visually Impaired Persons”, New Zealand Journal of Public and International Law 2015 : 13.

3.   Rahul Cherian Jacob, Sam Taraporevala and Shamnad Basheer, “ The Disability Exception and the Triumph of New Rights Advocacy”, NUJS Law Review, 2012 : 5.

4.   Marketa Trimble, “The Marrakesh Puzzle”, International Review of Intellectual Property and Competition Law, 2014 : 45.

5.    Abbe Brown and Charlotte Waelde, “Human Rights, Persons with Disabilities andCopyright”, in Research Handbook on Human Rights and  Intellectual Property edited by C.Geiger, Cheltenham, Edward Elgar Publishing, 2015.

6.   Aaron Scheinwald, “ Who could possibly be against a Treaty for the Blind ?” Fordham Intellectual Property, Media & Environment Law Journal, 2012 : 22(2).

7.  Convention on the Rights of Person with Disabilities and its Optional Protocol 2515 UNTS 3 (opened for signatures on 30 March 2007, entered into force 3 May, 2008).