Compulsory Licensing of Drugs under National Emergency, Parallel
Importationand the Covid-19 Pandemic : Issues and Challenges

(By Dr. Raju Narayana Swamy IAS)

 

Background

Compulsory license is one of the safeguards that international IP law provides to address the undesired effects of pharmaceutical patents on access to important medicines1. It enables a competent government authority to license the use of a patented invention to a third party or government agency without the consent of the patent holder.

 

The TRIPS Provisions

Though TRIPS obliges countries to ensure a minimum level of patent protection, it create a permissive regime for the carving out of exemptions and limitations that further public health objectives 2. This is amply clear from a reading of Articles 7,8,30 and 31. For instance, Article 7 outlines the objectives of TRIPS as being to ensure effective enforcement of IP in a way that inter alia is conducive to social and economic welfare. Article 8 gives member countries freedom to take measures that protect public health and nutrition. Articles 30 and 31 deal with exceptions to the rights of patent owners by allowing grant of compulsory licenses. It needs to be mentioned here that even one of the major opponents of the compulsory license mechanism-the U.S.- despite criticising Hungary earlier for its manner of granting a compulsory license has recognised the right of other Members to issue compulsory license in its notorious Special 301 Report.

 

Article 31(b) and National Emergency

Though one of the conditions prescribed under the TRIPS vis-a–vis compulsory license is prior negotiation with the patentee to get a voluntary license on reasonable commercial terms, one situation where this condition need not be followed is a public health crisis. To quote Article 31(b) of the TRIPS Agreement, “This requirement may be waived by a Member in the case of national emergency or other circumstances of extreme urgency or in cases of public non-commercial use”.

 

It is noteworthy that the term “national emergency” is not defined in TRIPS Agreement and is left to the individual countries to decide. The Black’s Law Dictionary defines national emergency as “a state of national crisis ; a situation demanding immediate and extraordinary national or federal action.” Mention must be made here of the 2001 Doha Declaration which stipulates that TRIPS should be interpreted in a manner supportive of the right of Members to protect public health and to promote access to medicines. The Declaration outlines what a situation of national emergency can be: –

“5c. Each Member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics can represent a national emergency or other circumstances of extreme urgency.”3

 

Needless to say, the circumstances surrounding declarations of national emergency by various countries with the aim of granting compulsory license vary. An oft quoted case is the US example of 2001 in the wake of an anthrax scare that was allegedly spread by terrorists. Due to a fear that it would spread, the threat to grant a compulsory license under US federal law was put forth. Once granted, the license would enable US to stock pile ciprofloxacin (the generic version of Bayer AG Corporation’s Cipro) unless Bayer AG agreed to reduce the price. Finally the matter ended in an agreement between US and Bayer AG and the need to invoke a compulsory license was avoided.

Another classic example is Zimbabwe which was faced with the situation of AIDS threatening the very future of the country. On May 24, 2002, a period of emergency was declared for 6 months ( which was later extended till 31 December 2008) enabling the State or a person authorised by the Minister to make , use or import any generic anti retroviral drug. There are other examples too. To quote a few,

 

i.    Ghana declared an emergency with regard to HIV/AIDS in 2005, there by issuing compulsory license for all drugs for import into Ghana of generic HIV/AIDS drugs for non-commercial purpose (government use)4

 

ii.   Eritrea declared an emergency for HIV/AIDS in 2005 and issued compulsory license to import drugs to fight the disease.5

 

iii.   Zambia issued a compulsory license under a national emergency for the triple combination of lamivudine, stavudine and nevirapine anti-retroviral drugs in 2004 for a period of 5 years in the background of sizeable number of its population being HIV-infected.6

 

iv.  Mozambique declared a national emergency in 2004 and granted a compulsory license for the local manufacture of the same triple combination as that of Zambia (lamivudine, stavudine and nevirapine) clearly specifying that the grant will expire as soon as conditions of national emergency and extreme urgency created by the HIV/ AIDS pandemic will come to an end. The decree also outlined that anti-retroviral drugs are already available, which prolong lives of those infected with HIV/AIDS , but that international patent owners have failed to make such drugs available at affordable prices to most of the Mozambican populace.

 

v.   Indonesia issued a compulsory license in 2004 (in the light of the need to control HIV/AIDS) regarding exploitation of patent by the government on ARV through provision of patented ARVs, nevirapine and lamivudine, for 7 and 8 years respectively. In 2007, the decree was amended to add one more ARV under compulsory license- efavirenz. In 2012, the government announced that they were going to issue compulsory license on seven HIV/AIDS and hepatitis B medicines citing urgent need to improve access.

 

vi.  Swaziland too declared an emergency with regard to HIV/AIDS in 2004 leading to issuance of compulsory license to import drugs to address the public health crisis.

 

vii.  Rwanda announced a plan in 2007 to import pharmaceuticals from Canada using a compulsory license to address the country’s AIDS epidemic.

Other countries that issued compulsory licenses in the 2000s for one or more anti-retroviral drugs to respond to the plight of their HIV-infected citizens who could not afford anti-retroviral therapy included Brazil, Ecuador, Malaysia and Thailand. Out of them Brazil and Thailand had notable success with decreasing the price of anti-retroviral drugs. Specifically, both sought to procure and provide efavirenz (marketed as Sustiva by Merck) and lopinavir /ritonavir (marketed as Kaletra by AbbVie , then Abbott Laboratories) to their patients. However, despite the opportunity to lower drug prices, many low-income countries do not use compulsory licenses for pharma products- sometimes due to restrictions in bilateral relations such as FTAs (Free Trade Agreements) with provisions limiting their use, but most often due to fears of trade retaliation. For instance, Abbott withdrew its products from Thailand after imposition of a compulsory license.

 

COVID-19 and the potential of compulsory licensing for essential drugs in the Indian context

As the world continues to battle the corona virus, conflicts may arise between government and private owners of patents that cover vaccines, therapies and drugs. Several drugs that are at the core of the COVID treatment protocol are under patents in India. These include Remdesivir- an antiviral drug patented by Gilead, Tociluzumab and Favipiravir. And there is a dire shortage of many of them. This is amply clear from a petition filed in Delhi High Court by the brother of a COVID-19 patient who had been prescribed a tociluzumab injection (Actemra 400 g) by the doctor, but could not be administered due to non availability of the drug. In fact, only Cipla Limited imports and markets this drug in India and the same is not meeting the overwhelming needs of the second wave of COVID-19.

 

It is in this context that the provisions under Chapter XVI of the Indian Patents Act 1970 particularly Section 92 which envisages the grant of a compulsory license, inter alia, in circumstances of national emergency and extreme urgency assumes relevance. Once a declaration of national emergency is made and the relevant patents notified, any person interested in manufacturing the drug can make an application to the Controller General of Patents who can then issue a compulsory license. In the past, the government has pondered over Section 92 notification for drugs such as Bristol Myers Squibb’s Dastinib and Ixabepilone (used for treatment of leukemia and breast cancer respectively) and Roche’s Herceptin (also used for treatment of breast cancer). Moreover under Section 100 of the Patents Act, the Central Government can authorize certain companies to use any patents for the “purpose of the government.” In fact, the power vested with the government under Section 100 is very wide and can be employed under any conditions for any disease unlike the power under Section 92 that can only be exercised under conditions of extreme urgency or national emergency. Moreover, for using the flexibility u/s 100 there is no need for a patent to be registered. Central Government can use it anytime after an application for patent has been filed. Mention must also be made of the provisions under Section 102 whereby Central Government can acquire the patents from the patentees. Needless to say, the powers under these sections can be used to increase production of essential drugs to ensure that it is commensurate to the demand. And under Section 66, the Government of India can revoke a patent in public interest.

 

Discussions are also galore that since IP concerns related to COVID-19 are by no means confined to a single patent but related to many patents, the need to use these patents without permission of the patent holders can be effectively facilitated by invoking Section 157 A (that empowers the Central Government to suspend or even revoke patents in the security interest of India ) which incorporates the security exception in Art.73 of the TRIPS.

 

It was in these circumstances that the Supreme Court raised a query (In Re Distribution of Essential Supplies and Services During Pandemic, Suo Motu Writ Petition (Civil) No 3/2021 (LL 2021 SC 236)) as to why the Central Government was not considering invoking powers for compulsory licensing or government authorized use, while considering a case on COVID-19 issues. During the hearing, the Court observed that India was in the forefront of TRIPS negotiations regarding provisions on compulsory licensing and that the present scenario was a Public Health Emergency- a fit case for using the same. The Court also mentioned the fact that several countries such as Canada, Germany and France have issued compulsory licenses in respect of essential drugs7 and reminded that India was the first country to issue compulsory license – in the Natco case- to produce a life-saving drug for kidney cancer. Reference also needs to be made of the suggestion of the Delhi High Court that the Centre should consider compulsory licensing of COVID-19 drugs. In an order passed on April 20, 2021, the Division Bench of the Court observed as follows:-

“ Looking to the present day situation, there can be no doubt that a case is made out for exercise of its power by the Central Government/Controller... At the same time, the interests of the patent holders/ licensees should be kept in mind...... the lives of thousands of people are being lost each day in the country due to COVID. The lives of the people take priority or everything else......”

 

NATCO’s Compulsory License Application for Baricitinib

It is noteworthy in this context that NATCO has approached the Controller of Patents for a compulsory license u/s 92 for the drug Baricitinib – a drug mentioned by the Delhi High Court in the COVID case as one of those for which compulsory license should be considered. Though used primarily to treat rheumatoid arthritis, the drug is more effective for COVID-19 patients in connection with Remdesivir (as compared to Remdesivir alone) with less side effects too. The patent for Baricitinib is owned by Incyte Holdings Corporation with a license to the US drug maker El Lilly who markets it under the name Olumiant. NATCO relies on Form 27 data to show that this drug is not manufactured in India. Moreover, imports in 2019 and 2020 accounted for less than 9000 tablets and the average cost per tablet is nearly Rs 3230. With the current number of COVID-19 patients running into lakhs, they point out that at best El Lilly’s supply would meet the needs of a miniscule share of 600 patients. NATCO says they are willing to make the tablets available at prices between Rs 15 and Rs 30 per tablet (depending on the dosage) and have put forth bioequivalence studies that show equivalence to Olumiant. Interestingly, El Lilly has now announced that it will issue voluntary licenses for Baricitinib to three of India’s largest drug makers- Sun Pharma, Cipla and Lupin – in order to expand access. In this connection, it is also worthy of mention that the USFDA has granted emergency use authorisation for Baricitinib in combination with Remdesivir.

 

Government of India’s Stand

      The Central Government in an affidavit filed before the Supreme Court seemed sceptical in making a call on compulsory license. To quote from the affidavit,

 

“When there is a surge in cases and in demand of patented medicines/drugs/vaccines from all over the world, the solution needs to be found out essentially at an executive level engaging at diplomatic levels. Any exercise of statutory powers either under the Patents Act, 1970 read with TRIPS Agreement and Doha Declaration or in any other way can only prove to be counter-productive at this stage.....the Central Government is very actively engaging itself with global organisations at a diplomatic level to find out a solution in the best possible interest of India. It is earnestly urged that any discussion or a mention of exercise of statutory powers either for essential drugs or vaccines having patent issues would have serious, severe and unintended adverse consequences in the country’s efforts being made on global platform using all its resources , good will and good offices through diplomatic and other channels.”

 

Thus while the US is supporting the right to issue compulsory licenses, India is relying on voluntary cooperation of IP holders. To put it a bit differently, the positions of the parties appear to have been switched. Critics feel that this is an outcome of the verbal assurance given by India to USIBC against using compulsory licenses for pharmaceutical products.

 

Parallel Importation of Remdesivir from Bangladesh : Will law stand in the way?

 

 Though the grant of compulsory licenses could help increase the supply of Remdesivir, it will take time for the new manufacturers to produce and bring the same to the market. It is in this circumstance that import of the drug from Bangladesh has been projected as a faster way to ease the current shortage. Jharkhand for instance has indicated its plan to import 50000 vials of the generic version of Remdesivir from Beximco Pharma in Bangladesh. Maharashtra Government too put forth intentions to import 10000 vials. Moreover there are reports of individual patients importing the drug from Bangladesh for personal use (due to its unavailability in India) with the drug regulator’s approval. The question that arises in this context is : Is such parallel importation of patented inventions permissible as per law?

 

This question can be answered in the backdrop of Section 48 of the Patents Act whereby the patent holder is given the exclusive right to prevent third parties from importing it into India without its consent. But this right is by no means an absolute one. For instance, Section 107 A(b) enables any person to import the drug (without the patentee’s consent) “from a person who is duly authorised under the law to produce and sell or distribute the product.” In this context, it is to be mentioned that Bangladesh is a LDC (Least Developed Country) and is not obligated to protect product patents under TRIPS till 2033. Thus any person in Bangladesh can manufacture, sell or distribute a drug which is patented in other jurisdictions without a license from the patent holder. As long as these persons have obtained marketing approval for Remdesivir from the drug regulation authority of Bangladesh, they would be considered to be ‘duly authorised under the law’ and import by persons in India from them (without obtaining permission from the patent holder) would be perfectly legal thanks to Section 107 A (b). Perhaps the day is not far off when Indian companies use this provision to set up operations in an LDC, manufacture the drug there and export it to India for supply to the Indian market. Needless to say, provisions other than Section 107 A (b) vis-a-vis import of Remdesivir are Section 47(4) (which allows for import of any patented medicines or drugs by the Government (State or Centre) for the purpose merely of its own use or for distribution in any dispensary, hospital or other medical institution maintained by or on behalf of the Government or any other such institution notified by the govt.) and Section 100 (which empowers the Central Govt or any one authorised by it to exercise or vend an invention for purposes of government). But import of drugs under these provisions can only be made by the government and not by private individuals.

 

Compulsory Licenses for Vaccines- A Myth or a Reality?

This dilemma needs to be answered in the light of the question- Are there any patents on the vaccines?. The answer is “no”, except for the fact that patents on the underlying technology affords them IP protection. Thus internationally, Pfizer-Bio NTech’s BNT 162 vaccine uses patented lipid nano particle technology to deliver mRNA to cells. On the national front, the technology behind Astrazeneca vaccine (Covishield) is patent protected. In this connection, it needs to be mentioned that the IP stack which causes hindrance to accessibility is by no means confined to patents, but includes data exclusivity and trade secrets as well. The former refers to exclusivity over clinical and preclinical trials data filed before the drug regulation authority. Under Article 39.3, TRIPS prescribes protection for clinical trial data which can be disclosed when it is necessary to protect the public. However, Indian law does not comply with this Article and there are no express provisions in the Indian legal system that prevent disclosure of test data results to third persons. As regards trade secrets, India does not have a specific law. But it is protected by the principles of common law or under the Indian Contract Act. Indian courts have therefore relied on common law cases in arriving at decisions on trade secrets. In UK, the seminal case in this regard isCoco v A.N. Clark wherein the Court held that to be considered a trade secret, the information must have the necessary quality of confidence about it , it must have been imparted in circumstances imparting an obligation of confidence and it must be an unauthorised use of that information to the detriment of the party communicating it. Trade secrets are not disclosed before any authority and therefore to access the same, voluntary co-operation with its holder is required. If measures like compulsory licensing are resorted to, the holder of the trade secret will have a tendency to protect the information in a more aggressive manner. Thus compulsory licenses may not be sufficient to ensure access to vaccines. To put it a bit differently, via compulsory license the generic manufacturers can only overcome the patent barrier and use the information disclosed by the patentee to the patent office in exchange for patent monopoly, but still there is a host of substantial information that remains undisclosed, making the generic manufacturer oblivious to the same despite getting the compulsory license. This is true even in India which mandates best mode disclosure (and definitely in Europe that talks of only sufficient disclosure ) as it is required to disclose only the best way known on date of filing, implying that information found at a later point of time regarding a better way may be kept under the carpet thereby denying the company who gets a compulsory license some information that is required to carry out the invention in a commercially viable fashion. Moreover while compulsory license can be a successful alternative for reverse engineering molecule based drugs like paracetamol, it falls short to ensure that complicated biologics like Covaxin or Covishield can successfully be reverse engineered to biosimilars unless there is an eco system wherein such inventions can be worked.

 

In the light of the above, it is to be concluded that undisclosed information behind Covishield might require co-operation from Astrazeneca. But the situation is different on the Covaxin front wherein government is one of the IP owners. In this context, it deserves to be mentioned that a Canadian company has already sought a compulsory license to manufacture Johnson &Johnson’s single-dose vaccine. Moreover in May, 2021, the High Court of Kerala sought a response from the Government of India on a PIL filed by Adv. Gopakumar seeking direction to invoke compulsory licensing provisions for COVID -19 vaccines.

 

Conclusion

The basis of the grant of compulsory license is balancing the rights of the inventor and the public. Needless to say, public interest is paramount in deciding such a grant. Given the fact that COVID- 19 has been declared as a pandemic by World Health Organisation and falls under the definition of a disaster u/S.2 (d) of the Disaster Management Act 2005, the present situation can no doubt be labelled as a” national emergency” or “extreme urgency”. This would imply that in case any innovative vaccine or drug is developed and patented , the government can very well issue a compulsory license for the same to combat the public health crisis. Put it a bit differently, public interest dictates that any drug or vaccine developed to tackle the pandemic be available widely and at a reasonable price (i.e) the issue of access to vaccines and medical treatment amidst COVID- 19 should not be left to negotiation among private parties at a price set by wealthy corporations but must be perceived through a constitutional lens. The grant of compulsory license would aid this endeavour . But it should borne in mind that issue of a compulsory license is a drastic step that impinges on the right of exclusivity of a patentee who has spent large sums of money in developing such a drug/vaccine. A balance between the two can be made if the patentee acts reasonably and enters into voluntary licences thereby making sure that there is a wide distribution of the said drug/vaccine. On the vaccine front, the focus should shift from IP to undisclosed information and technology transfer. The best bet will be to ramp up production of Covaxin (which has been developed as part of a PPP and in which ICMR shares the IP) by roping in more PSUs and by sharing Covaxin formula with interested manufacturers. On the drug front, a silver line in the horizon is that Gilead has signed non-exclusive voluntary licensing agreements with various generic pharmaceutical manufacturers in India and has agreed not to charge any royalty until WHO declares the end of public health emergency or until a pharma product other than Remdesivir is approved to treat/prevent COVID- 19 whichever earlier. Thus the situation of resorting to a compulsory license can be avoided, thereby arriving at a middle ground beneficial for both the company and the public. Perhaps that is the letter and spirit of the affidavit filed by Government of India before the Supreme Court. And that is what the Division Bench of Delhi High Court meant when it ordered the Central Government to reach out to the patent holders to immediately ramp up manufacturing on a war footing , to encourage voluntary licenses and if it did not materialize, to consider the compulsory licensing options available.

 

References

1.     Sustaining access to antiretroviral therapy in the Less- Developed World : Lessons from Brazil and Thailand, Ford N, Wilson D, Costachaves G, Lotrowaska M, Kijtiwachakul K, AIDS: 2007, 21 Suppl. 4: S 21-9.10.1097/01.aids.0000279703.78685.a6 [PubMed] [Cross Ref][Google Scholar].

2.     Doha Declaration and Public Health Issues, Lalitha N, Journal of Intellectual Property Rights, Vol 13 (2008).

3.     AIDS Drugs & the Pharmaceutical Industry : A Need for Reform, Mary T. Griffin, 17 Am. J. L. & Med. 363,377 (1991).

4.     Compulsory Licensing of Patented Drugs under National Emergency, Aswathy Asok, Journal of Intellectual Property Rights, Vol 22 (2017).

5.     The inter-governmental working group on public health, innovation and intellectual property (IGWG) – the way ahead, Indian Journal of Medical Research , Vol 128 (2008).

6.     Current Scenario of Patent Act : Compulsory Licensing, Harish C., Vaibhav C. & Kumar V., Indian Journal of Pharmaceutical Education and Research, Vol 47 (2013).

7.     Council for Trade-Related Aspects of Intellectual Property Rights, Waiver from Certain Provisions of The TRIPS Agreement For the Prevention, Containment And Treatment of COVID-19 , Communication from India And South Africa, IP/C/W/669, 2nd October 2020
available at https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf & Open= True.

 

End Notes:

1      Beatrice S. & Harry T, “Learning from practice: Compulsory licensing cases and access to medicines, Pharmaceutical Patent Analyst, 2(2) (2013) pp 195-213

2      Report of the United Nations Secretary-General’s High-Level Panel on Access to Medicines Promoting Innovation and Access to Health Technologies (United Nations Secretary-General, (2016)

3      Doha Declaration on the TRIPS Agreement and Public Health 2001, https://www.wto.org/english/thewto-e/minist-e/mm01-e minded- trips-e.html

4      http://www.cptech.org/ip/health/cl/Ghana.png

5      http://www.cptech.org/ip/health/cl/Eritrea.png

6      http://www.cptech.org/ip/health/cl/Zambia/Zambia-bms 09302004.html

7      On March 24,2020 Israel issued a compulsory license to import generic versions of lopinavir /ritonavir under the impression that the anti-retroviral drug could be a possible treatment for COVID-19patients (because AbbVie was unable to provide sufficient supplies). Also legislatures in Canada, Chile and Ecuador laid the legal groundwork for issuance of compulsory licenses to address the pandemic.

Misconceptions about Virtual Sitting -- Reality and Falsity

(By Sajeer H., Court Master, Kerala State Consumer Disputes Redressal Commission,                                                                                                                             Thiruvananthapuram)

 

A court room is a place of adjudication.It can also be treated as an information hub. Outside information is to be assembled here, sorted and brought into it for presen-tation. Once it presented, various theories of interpretations are driven for exploring the real facts.The fact-finder, who then analyses the data, according to the prescribed rules (determined by the judge through research analysis, and interpretations) and determine a verdict on its foot. The Court room is thus the centre of a complex system of information exchange and management. Ultimately lawyers and judges would deal with the data either presented before it or available from outside sources. True to say, all these things are exchanged within the four walls of the courtroom.

 

But the Covid-19 and CoV-2 scattered the entire society in letter and spirit. Nobody, not even the lawmakers, expected the outbreak of this type of pandemic. We all know the courts are sensitive institutions, which are the only source of relief to the public at the time of peril. It’s closing on the ground of health of all the Judicial officers, Counsel parties and staff, which may cause derailment of the system as a whole. Hence, the judiciary unanimously decided to switch over the conventional courtroom to virtual courtrooms through video conference. Stepping of virtual mode at first leads to many troubles. But the counsel and the public have wholeheartedly accepted this mode and obtained orders withindays in a speedy manner.

 

Though the virtual mode got warm acceptance from the public and their counsel, certain people have expressed their anguish, whether the judgement or orders obtained from virtual sitting can be treated as valid? Whether virtual sitting is at par with conventional sitting? If so, whether the clients and counsel can effectively appraise their case and defence before the court through video conference? What all are the procedures to be followed for entering into the virtual hearing? etc. This is an attempt to answer these type of questions and the existing misconceptions on virtual sitting.

 

Virtual sitting, as of now, is only a stop-gap arrangement and it will be going back to the conventional sitting as and when the situations reach normalcy.

 

Critiques saying that the Government Officers are functioning either full fledge or with fifty percentage staff strength throughout the country. Then, why the judiciary alone opposing the conventional sitting in full swing?

 

The Government offices can restrict the public at the front gate of it and can accept their applications or complaints and provide their services either forthwith or at any determined time. But the judiciary cannot restrict the litigants, counsel or witnesses like that of the Government. It is only one institution in the world to provide fiat justice to the aggrieved and act as parents Patria for the deserved.The conventional courtroom inevitably needs the presence of complainants, their witnesses and their adversaries. Many of our Magistrate courts,Munsiffs courts, Family courts are functioning in a cubicle like a court hall with a large crowd in it.Because of the paucity of its area, the tiny particles of the deadly virus would easily be spread among all present. It is the common trait of some people that they turn over pages of their applications or reference books by touching their fingers on their tongue. Unlike Government offices, the judicial officer, court officers, clerical staff and other supporting staffs are at risk of handling this type of papers or applications submitted before it instantly. It shall cause vulnerability. Moreover, the usual roll call is intended to scroll all its pending cases through the hands of the judicial officers to refresh and appraise the facts of every case. These pandemic situations forced the judiciary to close the wooden doors of conventional sitting but widely open its virtual doors before all through video conference. Hence, the judiciary can restlessly and continuously function for the aggrieved.

 

Secondly, some critiques hemently opposed the virtual mode and saying that thejudicial officers are not seen the presence of the witnesses,counsel and the parties through virtual mode and so pronouncing orders in dark. Is it true?

 

Virtual sitting or virtual courtroom includes the physical presence of the parties, witnesses and their counsel through a virtual platform. Many platforms for online virtual hearing are available in India. Some of them are paid and some others are free. Before starting the virtual court room its platform and link are to be sent to all the parties and their counsel through Whatsapp and email. It enables them to make proper arrangement for the meeting. As and when they enter into the virtual seat they are asked to switch on their video and mike. No judge will pass an order without hearing the parties. The virtual mode is safe and secure. Therefore, these types of criticisms are baseless.

 

Some critique says that they are only permitted to join virtual meet only five minutes before the scheduled time and they and their parties couldn’t join the meeting one hour before.

 

It is absolutely a misconception and hearsay. It is not necessary to join the meet
hours before.The host will enable access to all participants who send their joining request through their system. The counsel and parties can join the meeting by using their mobile phone or with any other device having an internet facility. The host will arrange the participants on a priority basis and the rest of the participants are to be reserved with 
a seat in the waiting room. The host will send information messages through the windows to all those in the waiting room about the priority of their cases. If their cases are nearest to the roll the respective parties were automatically called in the window screen by providing full access to the meet. The participants just to join only through the link provided. All other works are to be done by the host.It is pertinent to note that the court officer sends meeting link to the counsel who produced their WhatsApp number at the time of filing cases. If the counsel is the filing party, they can share a link to their parties and ask them to join the meet, if necessary. No court will restrict the joining of parties and their counsel simultaneously. But the multiple access in the same room may cause sound hauling and echoin the virtual sitting and so multiple access within the same room (not on the same roof) are only to be restricted.

The critiques further say that “you are lucky if you have active internet at the time of the hearing, else your case will be dismissed at the threshold”. Is it right?

 

This is a false booster story. Internet failure may not disqualify any person for appearing his case in the next row. As and when the participant disappears on the ground of network failure a further chance is to be given to the parties for re-presenting his case either forthwith or on any other occasion. We are living in an advanced technological era. Without proper access to information technology, the court couldn’t function properly. When net failure occurs the counsel or the parties would be provided sufficient time to re-join the meeting as and when their network connection restores.If the same trouble persists, they will be provided with another chance to enter the meeting or the case will be deferred to another date with their convenience. No courts shall take adverse action due to the absence of the parties in a virtual court room.

 

The Judges are busy and hasty to take up matters in the Video Conference? Is it true?

The allegation is that some judges took up the matters and hastily hearing in video conference even some times, without hearing the parties or their counsel declaring that the matter will be taken up for orders.It is further saying that the counsel when they were studied their matter well and prepared for arguing before the judges,judges are curtailing them and arbitrarily put their cases in a box for orders.

 

The critiques criticising all only for the sake of criticism and not for exploring the real things. If any matter warrants an elaborate hearing it will not be posted in the virtual hearing. Even if necessity urges, then the matter will be taken up for hearing, with the whole presence of the parties or their counsel. No case will be taken up in the virtual hearing withoutnotice to the other side. The court will first ensure whether all parties are joined in and received notice of hearing properly.No judges are hasty in a video conference. No judges will curtail a person’s right to argue his case either by himself or through his counsel. No arbitrary fetching of cases for orders without allowing detailed hearing. Moreover, the advocates are the officers of the court and not the mere silent or tolerant speakers in the court. They have to protect the right of their client before the court of law.

 

Critiques further say that if a counsel disagrees with the court’s view, then  the Judicial officer will mute the mike of the speaker arbitrarily and disallow him to speak.

 

It is an imaginary allegation. The technical control of the virtual sitting is within the hands of the Court master.The judges have no direct access to the participants and the control key is with the host. These critiques are not aware of virtual sitting. Even if the host mutes the mike of a participant, he can unmute it at the same time.

 

Login id and password are not essential for virtual sitting. Is it right?

No login id or password is indeed necessary for joining a virtual meet. Participants can directly access the virtual meet by clicking the link provided to them through their Whatsapp or email. When the procedures are hard nut, the user will criticise the entire system.

The virtual mode of sitting started due to the outbreak of the Covid 19 pandemic.

People across the world are suffering and struggling for their lives. Money and positions become worthless. Dead bodies were forced to dump in a single pit without observing religious ceremonies.Though the situation is continuing serious to dangerous and the deadly virus changing its structure by mutation day by day. Hence the Judiciary as a sensitive organ of the state decided to start virtual sitting for the sake of the entire community as a stop-gap arrangement.Only because of it our thousands of loved ones are living now in front of us. A lot of clients and counsel were accustomed to the virtual meet. They believe that the same is convenient than that of the conventional sitting for the time being. The counsel from the mofussil court to apex court tries to switch over to modern facilities to cope up with the new system and the mode of sitting for the sake of the health of themselves and the entire Judicial and lawyer fraternity. But some minute number of people were not ready to learn, the virtual sitting for criticising it. They not even ready to learn to send and receive e-mail and open WhatsApp etc. they are disseminating misconceived stories expecting fame. But the industrious able and efficient counsel active counsel in the country is actively participating in the virtual hearing and getting speedy relief for their clients without any hurdle.

 

Therefore, the criticism as aforesaid hadn’t a credible value and all it maybe thrown into the Arabian sea.The beneficiaries of justice will get it uninterruptedly and continuously through video conference, till the pandemic is to be chained.

Civil Courts -- Commissioners -- Appointments and their Duties

(By P.B. Menon, Advocate, Palakkad)

First as regards appointment of commissioners by civil courts when ever a new entrant come to the profession he/she takes care to get himself/herself enlisted in the panel of commissioners in various civil courts in the station but very often such members never care to attend or practice in the civil courts but are confined to criminal court, family court, MACT or other tribunal like industrial or labour etc. What happens in practice is the presiding officer choose one from the panel before him not realising as to whether he/she is a regular practioner in a civil court or is attached to some seniors office . Some of the commissioners so appointed not understanding or realising the real purpose and object of such commission even without getting guidance from some body with experience in the field or their senior lawyer goes to the property and submits a report which is a very often found to be not useful to the court , from the point of view of the dispute in the matter. Issue of warrant of commission to a junior counsel is very much welcome but why not confine the same to the members practicing before the civil court. Certainly there are no dearth of young lawyers in the civil side. Such a practice will be really useful and beneficial to all concerned.

 

There is yet another suggestion. Before a warrant of commission is issued it is always better to ascertain the nature and scope of the work to be undertaken by the commissioner. So that the court can decide about suitable counsel whether young or one with experience or standing depending upon the matter in dispute. If it is a question of local inspection with proper guidance a young lawyer will be sufficient but in partition suit and title suit it is always desirable that an experienced lawyer who can do the work is chosen.

 

If we analyse the provision in C.P.C. it will be seen that there are two separate provisions regarding the appointment of commissioners to do such work, one is local investigation under Order 26 Rule 9 C.P.C. and the other is local inspection under order 39 Rule 7 C.P.C. Very often all quote -including my office - Order 26 Rule 9 C.P.C. in all application for appointment of commissionesr. As regards local inspection such reports are very crucial regarding the dispute in the lis and facts gathered on such local inspection very often cannot be proved by acceptable oral or documentary evidence. The commissioner is expected to report as to what he saw with his own eye on such inspection. What others told him is not relevant or is it legal evidence. It is really a fact finding commission. What he actually saw and observed have to be reported .it is always better to carry a pen and paper to note down then and there the details he saw or observed rather than rely on ones memory in preparing a report. Unless it is a true and honest report,a honest litigant whether plaintiff or defendant will suffer. In such case probably such reports alone will be the vital or crucial evidence in support of ones case. Another important matter is most of the commissioners after finishing their work fail to submit the report immediately, but go on taking time inspite of the fact that inspection work is already over particularly in such local inspection cases.

 

As regards commissioners appointed for the purpose of local investigation, like in a partition suit or title suit etc he has to gather details with the help of a village officer or surveyor to resolve the dispute . He has to gather all the relevant datas to file a report.

 

A very relevant factor in this connection is that any commissioner so appointed by court shall first try to understand as to the purpose for which he is deputed, what actually is the dispute between the parties etc for that he should not only read and understand the contents of the commission application but also should gather details from plaint and written statement relating to the dispute between the parties. Thereafter he should gather all the relevant details and data from the village records and documents submitted to the court by the parties so that his report should be useful and helpful to the court to decide the matter in issue before it. True under the law such reports are not binding on courts as laid down by decisions of courts but at the same time such reports will be a very valuable piece of evidence to be considered along with other evidence to decide the matter in issue. Survey plans and sketches should be prepared by the surveyor or village officer concerned only under the supervision of the comissioner if at all they prepare the same should be verified by the commissioner by going to the spot . If this is not done the concerned commissioner will not be able understand cross examination if cited as a witness. Really in a trial of a
civil case, commission reports play a very significant part and quite often is very crucial too to arrive at a correct decision.

 

 In the erstwhile Malabar area there was no practice of filing work memo in court or before a commissioner. It was in vogue in erstwhile cochin state. Any how I do not know about Travancore area. In the present day each commission application end with question to be answered by the commissioner appointed in that matter or work memo given by
both parties. Any how it is not warranted under the C.P.C. (See 2012 (4) KLT 1).

 

Regarding the final decree in partition suits in olden days when commissioner file report sketch schedule equalization table etc, it will be a complete code of all details relating to the property allotted to a sharer or a group of sharers. When final decree is passed and delivery is taken it is their title deed relating to the property allotted to such sharer and so all the details relating to such property allotted to a sharer should contain all necessary details. The plot or area allotted to a sharer will show the the nature of the property ie double crop wet land, single crop wet land , unoccupied dry, occupied dry or unassessed like tank rock etc.(in olden time but not now). The central measurement of the plot is koles with varamba or not if a field , trees if any standing on the varamba, its age etc. In short all the relevant details relating to the property so allotted to a sharer will be clearly depicted in the above sets of documents presented by a commissioner and accepted by court. If at all a future dispute arises with a neighbour or even among sharers the plan and schedule etc prepared by the commissioner will be absolutely useful to resolve such dispute. Better not attempt to say  anything about the present day partition decree reports sketch schedule filed in court by the commissioners.

 

The present day commissioners do not seem to realise the importance and value of such reports and hence I am tempted to make a note on that aspect of the subject and I sincerely feel that this subject should form part of training to munsiffs trainees.

 

Even though there are a catena of decision I am penning down a few important decision relating to commissioner work.

 

 

Foot Notes:

AIR 1959 Ker. 358.

1987(2) KLT 249.

2009 (2) KLT 255.

2013 (2) KLT 648.

2017 (2) KLT 61 (SN).

2017(2) KLT 865.

2019 (4) KLT 208.

2020 (5) KLT 129.

See AIR 1980 Orissa 98/107.

1969 KLT 449 (if the report is beyond the scope the same will be treated as non est).

1966 KLT 1047 (remuneration).

Removal of Offending Content from Cyber Space:
An Analysis in the Light of Evolving Dimensions of Intermediary
Liability and Judicial Pronouncements

(By Dr. Raju Narayana Swamy IAS)

Intermediary : The concept

Intermediaries are gateways to the internet- services enabling delivery of online content to the end user. The various players involved in the chain range from ISPs ( Internet Service Providers like Airtel that help users to get connected to the net by means of wired/wireless connections), search engines ( the most commonly used ones in India being Google Search, Yahoo Search, Microsoft Bing and Duck Duck Go), DNS providers (that translate domain names to addresses that can be understood by computers), web hosts, interactive websites (which include social media sites like Face book and Twitter) and even cyber cafes. The ambit of the term is wide enough to include any website that facilitates and brings together two interest groups ( such as retailers and consumers in an online shopping mall), carriers of information (a classic example being Gmail service) as well as payment gateways (PayPal and Pay tm to name a few). To be specific, Section 2(1) (w) of the IT Act, 2000 defines intermediary as “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to electronic record........”.

 

However as time progressed, this definition (that derived much of its legal language from the EU e-commerce Directive of 2000) was broadened both in scope and in ambit. From the days wherein intermediaries were treated as monolithic entities- as simple conduits or dumb passive carriers who could not and did not play any active role in the content- the country has moved on to the era of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021 wherein even curated content platforms such as Netflix and Amazon Prime as well as digital news publications have been roped in. Content takedown provisions for online news websites and online news aggregators have become the order of the day. All online streaming platforms including Over-the –Top(OTT) come under the ambit of regulated entities . Needless to say, such a legal step was called for in the light of the diversification of services offered by the intermediaries and the significant issues of scale wielded by a few select players. As things stand today (despite criticisms that the ripple effects of these provisions will have a devastating impact as regards freedom of expression and that government agencies are given the ability to order take down of news and current affairs content online by publishers which are not intermediaries - with very few meaningful checks and balances), the Rules envisage three types of entities, whose levels of obligations vary based on the hierarchies of classification :-

(a)  Intermediaries within the traditional meaning of Section (2) (1) (w) of  the IT Act.

(b) Social Media Intermediaries (SMIs) (i e) entities which enable online interaction between two or more users (with less than 50 lakh registered Indian users)

(c)  Significant Social Media Intermediaries (SSMIs) (i e) entities with user-thresholds as notified by the Central Government- with more than 50 lakh registered Indian users ( Facebook, YouTube, Whats App etc.)

Liability of intermediaries for user generated content

A classic case where many eyebrows were raised regarding intermediary liability was the Baazee case wherein Avinash Bajaj, the CEO of an auction portal was arrested for an obscene MMS clip that was put up for sale on the site by a user. The Delhi High Court while considering a petition to quash the criminal proceedings in the case found that the web site that hosted the MMS could be held to the liable for sale etc. of obscene books u/s 292 IPC as well as Section 67 of IT Act. The case highlighted the risks that corporates could be exposed to in online space. To be more specific, although the content is not generated by intermediaries, they could be held liable for offences committed by users by utilising their services. Hue and cry followed that intermediaries be provided protection from such liabilities arising out of user – generated content.

 

 Models of Intermediary Liability

       Content on the internet typically concerns three parties:-

(a)  Content originators who post content.

(b)  Online intermediaries who provide a platform for users to share content on and

(c)  Content recipients who view the content posted.

 

Conceptually, it is important to distinguish between websites that post their own content ( a news organisation website for instance) and online intermediaries that merely provide a platform ( eg.:- Word Press, which allows bloggers and readers to interact , but has nothing to do with the content of individual blogs). In fact, law on liability of intermediaries is an evolving process- a classic example of this dilemma being the question of attributing liability to intermediaries for music piracy. The world has not forgotten the Napster case ( where Napster allowed peer to peer sharing of pirated music files , had control over their users and had a centralised server) as opposed to the case of Grokster and Smart Cast (which lacked a centralised server). It is within this frame work that various models of liability for intermediaries are to be assessed.

 

One of course is the strict liability model followed in countries like China and Thailand under which intermediaries are liable for third party content and are effectively required to monitor the content in order to comply with law. The second widely adopted approach is the safe harbour model wherein intermediaries are granted immunity provided they comply with certain requirements. This is the heart and soul of the notice and take down procedure (for instance followed in the US Digital Millennium Copyright Act (DMCA)). However opinions are galore that a “notice and notice” regime would be better suited to disputes involving defamation where the harm is caused to an individual by another. Under such a regime, the intermediary would be required to forward any complaints regarding content to its creator/ poster. A third model is the Horizontal Approach wherein different levels of immunity are granted dependent on the activity at hand. A classic example is the E-Commerce Directive in the EU where almost complete immunity is provided to intermediaries who merely provide technical access to the net (i.e.) a single intermediary liability regime dealing with all types of claims. This is in sharp contrast to the vertical framework offered by the US wherein separate liability regimes exist for

 

(i) copyright claims u/s 512 of DMCA

(ii) trademark claims u/s 32 (2) of the Lanham Act and

(ii) non-intellectual property rights claims u/s 230 of the Communications Decency Act.

It also needs to be mentioned here that across the globe, there is a  developing consensus over principles of intermediary liability in the form of the Manila Principles endorsed by the UN Special Rapporteur on the Freedom of Expression.

 

The Indian Response : Section 79 and Safe-Harbour Protection

Before the IT (Amendment) Act, 2008 was passed, Section 79 dealing with liability of intermediaries was ambiguously worded. Thus in Sanjay Kumar Kedia v. Narcotics Control Bureau,the petitioner’s plea to escape liability under the old Section 79 was rejected by the Court as the petitioner’s company had actual knowledge of the mala fideactions of sale of ‘psychotropic substance ‘ through their website which violated the Narcotic Drugs and Psychotropic Substances Act, 1985. On this ground, they were not considered to fall within the immunity provision provided u/S. 79 of the IT Act.

 

It needs to be mentioned here that the landmark judgement in this regard is the order of the Supreme Court dated 10 December 2019 in Google India Pvt. Ltd v. Vishakha Industries & Anr. (2019 (4) KLT OnLine 3115 (SC).The case pertained to a criminal defamation filed by Vishakha Industries against an individual who was publishing articles under the name ‘Ban Asbestos’ in a group. Google, which was involved in hosting the group, was made a party to the defamation case and allegations were raised to the effect that Google failed to take down the article even after multiple requests of the company. Thereupon, Google approached the High Court of Andhra Pradesh with a prayer to quash the complaint, raising the contention that it was not liable for the publications made in the group, being an intermediary u/S.79. The plea of Google was rejected by the High Court stating that being an intermediary it failed to take action to bring down the defamatory posts and hence it could not claim exemption u/S.79. The matter went in appeal before the Supreme Court wherein it was held that intermediaries were not protected u/S.79 from defamation prior to the amendment and that hence Google has to undergo trial in the above criminal defamation case. However, following the amendment, an umbrella protection is provided to intermediaries (i.e.) they are provided conditional immunity under the due diligence doctrine irrespective of the nature of the content. Whether an intermediary could claim safe harbour hinges largely on two factors:-

 

(a) Actual knowledge about the unlawful act

Under the earlier Information Technology (Intermediaries Guidelines) Rules, 2011 (which have been superseded by the 2021 Rules), an intermediary was required to remove unlawful content on its platform once it acquired knowledge of such content by itself or from an aggrieved individual. However, the standard of “actual knowledge” was neither tested nor defined in the IT Act, leading to uncertainty as to when intermediaries were under duty to remove such alleged defamatory content. For instance, were they required to remove content if a single private individual complained against it ?

 

This burden on intermediaries continued till 2015 when the Supreme Court read down ‘actual knowledge’ in Shreya Singhal v. Union of India(2015 (2) KLT 1 (SC)) to state that it can be attributed to an intermediary only when there is a court order or notification from an appropriate government authority apprising the intermediary of unlawful content over its platform. Put it a bit differently, the Shreya Singhalcase has moved India’s intermediate liability regime forward by removing the burden of identifying defamatory content from intermediaries. This clearly implies that the intermediary is not under an obligation to observe self regulation and that it would not lose safe harbour protection if it refuses to take down unlawful content on its platform pursuant to a written intimation by a private party.

 

Also worth mentioning here is the ruling of the Division Bench of the Delhi High Court in Super Cassettes Industries Ltd. v. Myspace Inc. & Anr.that intermediaries could be held liable only when they have actual or specific knowledge and not constructive knowledge of the existence of infringing content on their website and do not take any steps to have such content removed. It was also held that insertion of advertisements and modification of content formats by an intermediary via an automated process and without manual intervention does not result in the intermediary being deemed to have actual knowledge of the content hosted. The Delhi High Court also held that intermediaries are not obligated to continuously identify and remove each and every piece of content being uploaded on their websites and that they cannot be obligated to pre-screen and verify all such content that is stored on their websites.

 

However, despite the ruling in Shreya Singhal, the Supreme Court in Sabu Mathew George v. Union of India(2018 (1) KLT OnLine 3114 (SC)) imposed an obligation upon the intermediaries to proactively filter their platforms for illegal content. The case related to a plea seeking ban on advertisements related to pre-natal sex determination from search engines.

 

(b) Compliance with due diligence obligations and observing all other guidelines prescribed by the Central Government in relation to its duties

The use of the phrase “due diligence” in the law has never been popular with the industry because it is open-ended and leaves considerable discretion with the judiciary.

To be specific, upon a composite reading of S.79(2) and (3) the conditionalities subject to which a

(i)   The exemption applies only if the function of the intermediary is limited to providing access to a communication system over which information is transmitted, temporarily stored or hosted

(ii)  The exemption applies only if the intermediary does not initiate the transmission nor selects the receiver of the transmission nor selects or modifies the information contained in the transmission.

 (iii)  The exemption applies only if the intermediary observes due diligence.

(iv) The exemption is not available if the intermediary has conspired, abetted or induced the commission of an unlawful act.

(v)  The exemption is not available if the intermediary fails to expeditiously remove or disable access to material upon receiving actual knowledge that any information residing in or connected to a computer resource controlled by that intermediary is being used to commit an unlawful act.

Potential areas of liability of online intermediaries

The potential areas of liability fall under the following broad categories:-

 

(a) Defamatory, private and libellous content (in fact jurisprudence in such cases dates back to Cubby v. Compuserve, a libel hosting case decided in 1991. It also needs to be mentioned here that private content includes not only pictures taken in intimate situations, but also other materials infringing various rights of privacy – information concerning family situation, financial/tax statements being classic examples)

 

(b) Trademark and copyright infringements

 

(c) Material that can be labelled as pornographic, racist or terrorist (In the Indian context, a classic case in this regard was the blocking by CERT-IN (Computer Emergency Response Team) in 2003 of an obscure mailing list run by a banned militant outfit – the Hynniewtrep National Liberation Council of the Khasi tribe in Meghalaya. Ironically, the popularity and visibility of the list went up by leaps and bounds despite it being blocked by all ISPs and many could still see the list via email or proxy surfing)

 

(d) Misrepresentation (viz) false information disseminated using online facilities that causes damage to a third party.

 

2021 Rules and Offending Content

The 2021 Rules issued under the IT Act, 2000 are intended to curb harmful content on social media. Expanding the ambit of the definition of user (under Rule 2(1)(x)) , defining the concept of grievance (under Rule 2(1)(j)) and stipulating that an intermediary shall by way of its rules and regulations, privacy policy or user agreement inter aliainform its users that they must not host, display, upload, modify, publish, transmit, store, update or share any information that is defamatory, invasive of another’s privacy, libellous, racially or ethnically objectionable etc. are the highlights of the 2021 Rules. In a step up from the 2011 Rules, this prohibited information now includes content which is published for financial gain but is patently false or information which is aimed at gender based harassment.

 

Offending content must be taken down within 36 hours of a court order and government notification to do so and government requests for data disclosure need to be met within 72 hours for investigation, detection or prevention of cyber security offences. Intermediaries must disable within 24 hours of a user complaint any content that depicts non-consensual nudity and sexual acts including morphed images transmitted with malicious intent.

 

Another important change is the requirement to appoint a grievance officer (also prescribed under the 2011 Rules) and publish his name and contact details prominently on its website. Building on the 2011 Rules, the 2021 Rules make it obligatory upon the grievance officer to acknowledge any order, notice or direction issued by a court or a governmental agency or a complaint received from an individual user or victim. Further a complaint must be disposed of within 15 days from its receipt (as opposed to one month under the 2011 Rules).

 

Significant Social Media Intermediaries are required to create a more accountable take down system, special expedited take down procedures for revenge porn cases, appointment of India based compliance officers (Chief compliance Officer under Rule 4(1)(a), nodal contact person under Rule 4(1)(b) and Resident Grievance Officer under Rule 4(1)(c)), identification of a physical address for service of legal notices etc. It is also stipulated that an SSMI providing chiefly messaging services must enable the identification of the first originator of the information on its computer resource - a promising way to control malicious information. It must deploy technology based measures (including automated tools) to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct - whether explicit or implicit. It must also appoint a senior employee, who would be criminally liable for non-compliance. As per Rule 7, an intermediary would forfeit exemption from liability enjoyed by it under the law if it were to fail to observe its obligations for removal/access disablement of offending content despite a court order to that effect. This makes the intermediary liable for punishment under any law for the time being in force (including IPC). On May 26, 2021, the Government of India issued a circular enquiring about compliance with the rules by all SSMIs.

 

 It is worth mentioning here that while the IT Act did not originally envisage regulation of digital media, the 2021 Rules impose various obligations on digital media entities which carry out systematic business activity of making content available within India. Even foreign news publishers with an online presence in India shall be regulated by the prescribed Code of Ethics.

 

Cyber Defamation and Associated Jurisprudence

No discussion on removal of offending content from cyberspace will be complete without an overview of the rich jurisprudence associated with cyber defamation-popularly and colloquially referred to as trolls. Cyber defamation occurs when a computer connected to the net is used as a tool or a medium to defame a person or an entity. Internet defamation is distinguished from its less pervasive cousins in terms of its potential to damage the reputation of individuals and corporations by......... its interactive nature, its potential for being taken at face value and its absolute and immediate worldwide ubiquity and accessibility .1

 

Publication of a defamatory statement against persons on social networking sites such as Facebook, sending e-mails containing defamatory content about a person would all fall within its ambit. Attacks from competitors, disgruntled employees, unhappy customers and even extortionists are classic examples. And they appear in a variety of forms- ranging from tweets, reviews and blogs to gripe sites and even false revisions to Wikipedia.

 

A classic reported case in recent times is the Gurugram incident in which a 12^th standard boy committed suicide when a girl posted an Instagram story where she accused him of rape. The accused was pronounced guilty by the court of Instagram, costing him his life. It also needs to be mentioned here that opinions are not defamatory statements. But at times, a few opinions are considered as facts by courts of law if they have caused an actual damage to another party. Moreover, if a person merely writes defamatory content but does not publish or communicate it to others, the offence of defamation may not hold.2

 

Needless to say, the primary goal for the abused party in such cases is to get the substance expelled from the net. The liability in these instances rests on the author as well as on the service provider/intermediary subject to S.79 of the IT Act. But criticisms are galore that while newspapers and broadcasters have always operated under the threat of legal liability for defamation, intermediaries have escaped liability despite behaving as publishers because of the immunity offered by S.79. Sharing, liking, re tweeting and commenting may be taken as re-publication of defamatory content. To put it a bit differently, a John Doe always lurks around in cyber space. Add to this the effects of morphing and fake video and the picture is complete. Many think that deleting a story or post afterwards would be enough, but internet keeps records and they could held responsible for reposting serious negative content.

Cyber defamation is a civil as well as a criminal proceeding. The relevant provision on the criminal side is Section 499 IPC. More over Section 469 of the IPC (forgery for the purpose of harming reputation) has been amended by the IT Act to include ‘electronic record forged’. Similarly Section 503 of the IPC deals with the offence of criminal intimidation by use of e-mails and other electronic means of communication for threatening or intimidating any person or his property or reputation. It needs to be mentioned here that IPC does not afford truth as an absolute defence.

 

The Delhi High Court has observed3 that “ given the wide definition of the words documents and evidence in the amended Section 3 of Evidence Act read with Sections 2 (o) and (t) of IT Act, there can be no doubt that an electronic record is a document.” The same has been observed by the Supreme Court also.4 however, in online defamation, an enormous test is to gather and save the computerized proof and to demonstrate their authenticity. If there should arise an occurrence of defamation on Whatsapp, Instagram etc., demonstrating the distribution of the disparaging material may require proper criminological methodology for safeguarding and validating electronic proof. In this connection, it is also noteworthy that on the internet, a fresh cause of action would arise for every moment the content is left online or reposted. This would result in a multiplicity of suits and harassment to the defendants. Recognizing this, the Delhi High Court5 has ruled that the mere continued presence of the defamatory material or article on a website should not give rise to a continuous cause of action.

 

Special reference needs to be made of Section 66A of the IT Act (which pertained to sending of offensive messages) that was quashed by the Supreme Court in Shreya Singhal v. Union of India (2015 (2) KLT 1 (SC). In the said case, the Supreme Court recognized that the section had been wrongly used to secure convictions under defamation law. It held that the section was never meant to address defamation because it makes no mention of injury to reputation.

 

However it needs to be pointed out that criminal punishment for defamation is often considered incompatible with democratic ideals. Amnesty International, for instance, in its submission to the Law Commission of India in 2014 has stated that India’s criminal defamation laws breach its obligations under international law and can have a chilling effect on legitimate expression.

 

The first ever case on cyber defamation was SMC Pneumatics (India) Pvt. Ltd v. Jogesh Kwatrawherein a disgruntled employee sent derogatory and defamatory emails to the company’s subsidiaries all over the world with an intent to defame the company along with its managing director. The High Court of Delhi granted ex-partead interim injunction restraining the defendant from defaming the plaintiff in cyberspace.

 

In Kalandi Charan Lenka v. State of Odisha, the petitioner was stalked online and obscene messages were sent to the friends by the culprit with an intention to defame the petitioner. The High Court of Orissa held that the act of the accused falls under the ambit of cyber defamation. Similarly in M/s Spentex Industries Ltd and Anr v. Pulak Chowdhary, the petitioner filed for injunction along with recovery of damages for loss of reputation and business due to defamatory emails sent by the defendant. The Delhi District Court decreed that the plaintiff be awarded 1/10^th of the cost and that the defendant is restrained from making false and defamatory statements.

 

Another case pertaining to defamatory material on intermediary website was Nirmaljeet Singh Narula v. Yashwant Sinha wherein a suit was filed against a news portal alleging that freedom of press was being misused by the defendants and its sole agenda was to defame the plaintiff. The court granted a conditional injunction. In fact, this was the first case in the country where IT (Intermediary Guidelines) Rules 2011 were relied upon to enforce a 36 hour deadline rule (failing which the Registrar was directed to block the website from public access in India).

 

In Pepsi Co India Holdings Pvt Ltd v. Facebook Inc,the plaintiff company moved the Delhi High Court praying for grant of an ex parteinterim injunction against Facebook, You Tube and others to remove, take down or block/restrict access to the URLs/links for allegedly hosting a video uploaded by an anonymous person who claimed that the product of the plaintiff was harmful as it contained plastic. The High Court gave a direction to the defendants to block the URLs/weblinks or any other video which was similar and the ones which were mentioned in the list of documents filed by the plaintiff. However the case was dismissed as withdrawn on 02/03/2020 after the parties arrived at a settlement.

 

In You Tube LLC v. Geeta Shrof, an appeal arose before the Delhi High Court as a consequence of noncompliance of an injunction order passed by the trial Court which had directed the appellant to remove an allegedly offensive post. The Court held that the appellant had not challenged the injunction order and therefore it had attained finality.

 

Recently in the case of Swami Ramdev and Anr v. Facebook Inc. And Ors, an order has been passed to remove all defamatory content posted online against yoga guru Baba Ramdev dependent on a book named “Godman to Tycoon – the untold story of Baba Ramdev” without any territorial limit. Facebook however has filed an appeal in the Division Bench of the Delhi High Court, contending among other grounds that the global takedown order interferes with defamation laws of other countries and undermines the immunities granted to them in other jurisdictions.

 

Mention must also be made of the Delhi High Court order inFrank Finn Management Consultants v. Subhash Motwani and Anotherwherein Section 19 of the Civil Procedure Code was invoked to assume jurisdiction over a defendant for publishing defamatory material in a magazine outside Delhi of grounds that its availability online implied publication all over. This raised many eyebrows stating that most internet users across the world will be compelled to tailor their content to the standards of the least tolerant regulator to avoid liability.

 

The ‘Art of Living’ Case (Vyakti Vikas Kendra, India Public Charitable Trust Thr Trustee Mahesh Gupta and Ors. v. Jitender Bagga and Anr.) is a typical example of how vulnerable public figures in India are to cyber defamation. The allegation was that defendant no.1 (Mr.Jitender Bagga) was indiscriminately sending emails and publishing al large number of blog posts making abusive references towards Sri Sri Ravi Shankar. Delhi High Court in this case first held Google (defendant no. 2) to be an intermediary within the definition of Section 2(1)(w) and 79 of the IT Act. Google was directed to remove all defamatory contents about the plaintiffs posted by defendant no.1 from its website www.blogger.com as well as all the links containing the defamatory content within 36 hours from the date of knowledge of the order passed by the Court. Defendant No. 1 was also restrained from sending any such emails or posting any material over the net having a direct or indirect reference to Sri Sri Ravi Shankar.

 

Mention needs to be made here of the writ of mandamus filed by animal rights activist Janani Krishnamurthy to link adhaar number with social media accounts as she was being trolled and harassed on Facebook. Her PIL was linked with the PIL filed by Antony Clement Rubin (a member of the Jallikattu Monitoring Committee which had been formed to make sure that bulls are not ill-treated during Jallikattu event). The Madras High Court rejected the possibility of linking adhaar to social media accounts and instead chose to expand the scope of the case to deal with issues around intermediary liability etc.

 

Another PIL worth special reference is the one filed by S.Muthukumar praying for imposition of a ban on the download and use of the mobile application Tik Tok which allegedly hosted explicit content that degraded culture, encouraged pornography and adversely affected teenagers. The Madurai Bench of the Madras High Court issued an ex parteinterim order on April 3, 2019 directing the authorities to ban the download of the said app. Before issuing the ban, the Court did not consider Tik Tok’s intermediary status as per IT Act. Subsequently, an appeal was filed by Bytedance (parent company of Tik Tok) before the Supreme Court which directed the Madras High Court to decide the matter by April 24,2019. After considering the reply filed by Tik Tok as an undertaking that inappropriate content would be removed from its platform, the Court vacated its order banning Tik Tok.6

 

Recommended Strategic Responses for victims of Cyber Defamation

The classic recommended responses are:-

 

(i) Do nothing

If the online content appears insignificant, consider letting it run a short and quiet course by ignoring it. Drawing attention to an online content that may not be taken seriously may only lead to further attention and negative online publicity.

 

(ii) Respond online

If the online statement is legitimate criticism, think about publically responding and acknowledging your efforts to correct any problems. Alternatively you can rebut false or defamatory statements with your own posts ( in consultation with online reputation specialists if needed)

 

(c)Contact the poster

Send a friendly but firm e-mail / letter to the author asking that they immediately correct, modify or remove the statement. But the author may not be inclined to act without threat of legal action.

 

(d) Send a Cease & Desist Letter

 

(e) Request the host website to remove the statement

Explain that the statement in question is false and therefore likely to be in violation of the site’s terms of use.

 

(f) File a law suit (often utilising the services of a cyber investigator who can try to determine the IP address of unknown authors - an information which can then be used to issue subpoenas for subscriber details to ISPs)

 

Technical Challenges in Removing Offending Content

The complexity of this scenario is amply clear from the words of Justice Anup Jairam Bhambhani of the Delhi High Court while delivering a judgement on April 20, 2021 laying down the procedure for removal of offending content from net :

 

“The internet never sleeps and the internet never forgets. The true enormity of this fact has dawned over the course of hearings conducted in the present matter when it transpired that despite orders of this Court, even the respondents who were willing to comply with directions issued to remove offending content from the world-wide-web, expressed their inability to fully and effectively remove it in compliance with court directions, while errant parties merrily continued to re-post and re-direct such content from one web site to another and from one online platform to another, thereby cocking-a-snook at directions issued against them in pending legal proceedings...... the Court according perceived that the issue of making effective and implementable orders in relation to a grievance arising from offending content placed on the world-wide-web needed to be examined closely and a solution to the problem needed to be crafted out so that legal proceedings of the nature faced by this Court did not become futile. The Court cannot permit itself to resign to the cat-and –mouse game of errant parties evading court orders by reposting offending content.....in an act of defiance and contumacy.”

 

Needless to say, migration of content as well as technical feasibility of filtering of defamatory contents pose insurmountable challenges. A classic instance within the framework of which these questions can perhaps be discussed is the Blue Whale Challenge. The notorious game that targetted young children to commit suicide is reported to have originated from Russia and hit India in 2017. The Government of India banned the game from access within the country, but the question of technical feasibility to implement the ban loomed large. For an intermediary, the game was not found on an exclusive website or app that can be blocked, but used encrypted communication channels through social media or direct messaging service. Rendering the social account inactive on pages where it sneaks in was easier said than done.

 

Through a technique called photo DNA profiling (that uses hash algorithm as it will have the same hash value if the content is same and thereafter can be blocked by contacting the concerned service provider) was suggested, it needed multi-stakeholder action. However, it needs to be mentioned here that such intermediaries on whose sites a third party posts a Blue Whale link would not be held liable unless there is actual knowledge and/or conspiracy/intention to commit the crime (provided it has followed due diligence norms). Similar were the technical challenges in blocking child pornographic websites despite it being an offence u/s 67 B of IT Act. A silver line in the horizon however is the fact that de-indexing of offending content globally does not require the search engine to take any steps around the world, but only to take steps where its search engine is controlled. This has been reiterated by the Supreme Court of Canada.7

 

Litigations galore

Special reference needs to be made here of the plea moved by one Amit Acharya in the Delhi High Court against noncompliance by Twitter with the 2021 Rules and failure on their behalf to appoint Resident Grievance Officer, Nodal Officer and Chief Compliance Officer. The plea elaborated that as a subscriber and user of Twitter, while scrolling his Twitter on May 26, 2021 he found allegedly defamatory, false and untrue tweets by two individuals, but found no details of the Resident Grievance Officer on the page and thus was deprived of his statutory right to lodge a complaint. The Delhi High Court observed that the IT Rules if not stayed will have to be obeyed by Twitter India and other such social media platforms.

Mention must also be made of a petition filed in the Kerala High Court by Praveen Arimbrathodiyil, a free and open- source software (FOSS) developer and a volunteer member of the Free Software Community of India (FSCI) praying to quash Part II of the 2021 Rules. The petition has been admitted and notice has been issued to the respondents. The main grounds in the petition are:

 

(a) The 2021 Rules place unreasonable restrictions on users in expressing themselves online

(b)  The terms used in the Rules are vague and ambiguous

(c)  The Rules seek to undermine end to end encryption which is a sub set of the fundamental right to privacy as enshrined in the Puttaswamy judgement

(d)   The Rules draw no intelligible differentia between not-for-profit  FOSS communities and for profit proprietary companies

(e)  The Rules are in contravention to the decision in Shreya Singhal v. Union of India

(e) The Rules are a delegated legislation and are ultra viresas they are inconsistent with the parent legislation (viz) the IT Act, 2000.

 

In another case filed by Live Law challenging Part III of the Rules, the Kerala High Court restrained the state from taking any coercive action for non compliance thereof. The contention in the petition was that Part III made it mandatory for publishers to comply with a Code of Ethics that was both vague and overbroad and that it imposed unconstitutional three- tiered complaints and adjudication structure upon publishers, which would make the executive both complainant and judge on vital free speech questions involving blocking and taking down of online material. Meanwhile, a petition has been filed in the Delhi High Court by Quint Digital Media Ltd (which runs the digital news website The Quint) challenging the guidelines.

 

Whatsapp has also moved the Delhi High Court urging to declare Rule 4(2) as unconstitutional, ultra viresthe IT Act and illegal and alleging that the Rules allow message tracing without judicial review. The social media giant cautioned that traceability can be spoofed or modified, leading to new ways for people to be framed for things they did not say or do. The plea also stated that citizens will not speak freely for fear that their private communications will be traced and used against them. Journalists could be at risk of retaliation for investigating issues that may be unpopular whereas activists could be targeted for discussing certain rights and criticising policies. Moreover, the traceability clause would force private companies to collect and store who-said-what and who-shared-what data for billions of messages daily just for the requirement of law enforcing agencies. Keeping a fingerprint of every message sent on Whatsapp would break end-to-end encryption and undermine the right to privacy. Traceability inverts the way law enforcement typically investigates crimes and mandates a new form of massive surveillance. However, the Ministry of Electronics and Information Technology was of the viewpoint that Whatsapp’s challenge at the very last moment- on May 25,2021, the final date of compliance- was an unfortunate attempt to prevent the same from coming into effect.

 

The Government was also quick to react that the platform will be liable to disclose the originator of the message only for prevention, detection, investigation or prosecution of an offence related to sovereignty and integrity of India, the security of the state or public order. According to Government sources, GoI is committed to ensure right of privacy, but at the same time it is the responsibility of the Government to ensure national security. GoI therefore contends that none of the measures under the new rules would impact functioning of Whatsapp in any manner and that for common users, there will be no impact.

 

Conclusion

With the enactment of the 2021 Rules, the Central Government has sharpened and expanded various aspects of the liabilities and obligations cast upon intermediaries to deal with unlawful content. The Rules are broader in scope than the 2018 draft Rules. Faced with the conflicting scenarios presented by social media- its immense popularity on the one hand and the growing concern that the content can be defamatory, deceptive, paedophilic, hateful, inflammatory or otherwise harmful on the other hand, the authorities have stepped in to make sure that the delicate balance does not go wrong by prescribing 16 due diligence steps to be followed by intermediaries.

 

Recognizing that it is imperative to take immediate action (as any delay could render the same as ineffective and futile), timelines for disablement of access to prima facie unlawful material have been effectively reduced from those specified in the 2011 Rules. Mention needs to be made here that the 2021 Rules specifically provide that offending content may be removed in the first instance, giving to any interested person as specified in Rule 4(8) the liberty to object to such removal and to request for reinstatement of the removed content. This has been provided in the Rules as it affords a more fair and just balance between the irreparable harm that may be caused by retaining offending content on the world-wide-web and the right of another person to seek reinstatement of the content by challenging its removal.

 

Rule 4(4) requires intermediaries to display a notice to any user attempting to access information identical in content to those that have previously been removed that such information has been access-disabled. The second proviso to Rule 4(4) contemplates implementation by a SSMI of appropriate human oversight of measures deployed under this sub-rule and periodic review of automated tools so deployed.

 

However, we must also recognize that it is too onerous and impractical for intermediaries to keep a lookout for offending content, particularly when it can resurface in various disguises and corrupted avatars at the instance of mischief mongers on a continuous basis, given the stark reality that a search engine is unable to appreciate the offending nature of content appearing in a different context. Despite these technical difficulties in the backdrop of the internet, it needs to be emphasized that if offending content cannot be completely removed, it can be made unavailable and inaccessible by de-indexing and de-referencing it from the search results of the most widely used search engines. Needless to say, for an order directing removal or access disablement of offending content to be effective, a search engine must block results throughout the world. The need of the hour is to harness technological tools to ensure that anonymity, seclusion of one’s own space and privacy which are the hallmarks of cyberspace are not misused – making use of the anarchical nature of the net- to settle scores, at the same time ensuring that freedom of speech is by no means compromised or undermined. The choice before the nation, its lawmakers and citizens is clear.

 

 References

1   “Electronic crime- it is not only the big end of town that should be worried”
 Hannan M and Blunde B, We- B Centre & Edith Cowan University, 2004, pp 1-9

2.  http://cyberdefamation.in/popular-cyber-defamation-cases-india/

3.  “ A critical study on cyber defamation and liability of ISPs”, T. Pradeep and
Aswathy Rajan , International Journal of Pure and Applied Mathematics Vol 119 No 17, 2018 pp 1717-1727.

4.  “Intermediary Liability in India”, Pritika Rai Advani, Economic & political Weekly, Vol XLVIII No 50 , December 14,2013

5.  “ Cyber Defamation and Liabilities of Internet Service Providers and Intermediary in India & UK”, Vivek Kumar Verma, www.corporatrix.wordpress.com

6.  Avnish Bajaj v. State(2005) 3 Compl. J 364 Del.

7.  “ Indian Defamation Law and Regulation of Online Content”, Sunita Tripathy, Bani Brar and Vasudev Devadasan, Law & Policy Brief, Vol I, Issue II, November 2015.

8.  danielbrantley.com/defamation-and-social-media-how-the-law-has-changed.

9.  Sanjay Kumar Kedia v. Narcotics Control Bureau[ 2010] 1 S.C.R. 555.

10. Nirmaljeet Singh Narula v. Yashwant Sinha(2012 (132) DRJ 370).

11. Shreya Singhal v. Union of India(AIR 2015 SC 1523).

12.  “ Blue whale Challenge: Centre’s call for ban on the game is a good political statement , but it’s not feasible”, First Post 17 August 2017 (Available at http:// www. Firstpost.com/rech/news-analysis/blue-whale-challenge-centres-call-for-ban-on-the-game-is-a-good-political-statement-but-its-not-feasible-3939123.html).

13.Notification issued by the Ministry of Electronics and Information Technology in exercise of powers conferred by subsection (1) clauses (z) and (zg) of subsection (2) of Section 87 of the Information Technology Act, 2000

14.Digital News Media Rules : Third Challenge Brought to Court By the Quint, Arpan Chaturvedi, https:// www.bloomerbergquint.com, March 2021.

(Endnotes)

1   Delhi High Court in Tata Sons Limited v. Greenpeace International .

2   Rohini Singh v. State of Gujarat.

3   Dharambir v. C.B.I. (2011).

4   P. Gopalakrishnan v. State of Kerala(2019).

5.  Khawar Butt v. Asif Nazir Mir.

6.  On June 29, 2020, India banned TikTok along with 117 other Chinese apps, in the wake of a violent border dispute with China.

7   Google Inc. v. Equustek Solutions Inc.

A Law for the Subaltern

(By P. Chandrasekhar, Advocate, Ernakulam)

Is ‘greed’ a virtue ? In 1985 addressing a gathering at University of California at Berkley, Ivan Boesky, an American stock trader,  said that “greed is alright, by the way I want you to know that I think greed is healthy. You can be greedy and still feel good about yourself”.  In 1987 the Hollywood movie “Wall Street” immortalised Ivan Boaskey. The fictional character Gordon Grekko in the movie, addressing share holders of a joint stock company, said that ‘the point is, ladies and gentlemen, that greed – for lack of better word – is good. Greed is right. Greed works. Greed clarifies, cuts through, and captures the essence of the revolutionary spirit. Greed for life, for money, for love, knowledge has marked the upward surge of the mankind”.

 

In 1970, the world renowned Economist, Milton Friedman, in an article published in New York Times said that “social responsibility of business is to increase its profits”¹. In an interview given to Phil Donahue in 1979 Milton Friedman, who won Nobel Prize for Economics said that “all countries run on greed” ². The concept of “greed is good” stems from the famous statement of Adam Smith in An Enquiry into the Nature and Causes of Wealth of Nations; “it is not from the benevolence of butcher, the brewer or the baker that we expect our dinner, but their regard for self interest” ³ .   Self-interest, according to Adam Smith, stimulates productivity. According to him interest brings virtue through ‘invisible hand’. In his Theory of Moral Sentiments, Adam Smith, explained that:

 

“ (the rich) are lead by an invisible hand to make nearly the same distribution of the necessities of life which would have been made had the earth been divided into equal portions among all its inhabitants, and thus without intending it, without showing it, advances the interest of the society.” ⁴

 

Adam Smith argued that by giving every one freedom to produce and exchange goods as they pleased, that is free trade, and opening up of markets people’s natural self interest would promote greater philosophy than the stringent government regulations. This free market force came to be known as ‘invisible hand’.

 

Following the concepts of ‘self-interest’ and ‘invisible hand’ neoliberal free market economic theory has become the new mantra for development and economic prosperity.  Neo liberal free market theory has become part of the new economic world order. With the advent of globalisation, privatisation and liberalisation all countries including communist countries have adopted free market trade practice based on neo economic libertarianism. Free market capitalism is now the inviolable rule all over the world. In other words, it is the rule of the rich universally applied to the poor, marginalised and the non-elite sections of the people.  The courts in India  have also recognised  the concept of free market liberalism. Except in very rare and exceptional cases, the Supreme Court has been in the recent times of the view that liberalisation, privatisation and globalisation is for common good. In Islamic Academy v. State of Karnataka.⁵  the Supreme Court said that ‘globalisation and opening up of market under World Trade Organisation and General Agreement on Trade and Tariff human development has taken a firm root”. Supreme Court also said that “a decent life to the persons living in the society” is thereby perceived. In State of Punjab v. Devan Modern Breweries⁶ the Supreme Court held that ‘court will take realistic view in interpreting Constitution having regard to the changing economic scenario’, that ‘the society has adopted pub culture’ and that the decision of the court had to be ‘on the basis of ground reality and not on the centuries old maxims’. InState of Bengal v Kesoram Industries⁷  the Supreme Court  held that the court is required to interpret the constitution, which is an ongoing document, keeping in view also the new vistas opened by reason of globalisation. In Kapila Hingorani v State of Bihar⁸ the Supreme quoted Prof. Upendra Baxi and said that “the processes of globalization, thriving upon the heavily critiqued ideologies of developmentalism and its eventual demise, seek to reproduce the soft state. That notion is, however, now reconstructed in several important ways. The ‘progressive state’, at least in, and for, the South, is now conceived not as a state in its internal relations with its own people but in relation to the global community of foreign investors. A progressive state is one that is a good host state for global capital. A progressive state is one that protects global capital against political instability and market failures”. But there had been discordant notes as well.  InSudhir Chandra Sarkar v Tata Iron & Steel Ltd.⁹, the Supreme Court had said that ‘the claim not to pay gratuity even when it is earned is a hangover of the modern notion of laissez-faire days’. In Bandhua Mukti Morcha v. Union of India¹⁰ the Supreme Court held that ‘the court has duty to abandon laissez-faire approach in the judicial process’. However, in Jal Mahal Resorts Pvt. Ltd. V K P Sharma¹¹ the Supreme Court said that in matters of policy of government, court should be a passive, inactive and silent spectator or otherwise ‘equilibrium of governance will get disturbed and development is bound to be slowed down and disturbed especially in an age of economic liberalism wherein global players also involved as per policy decision’.However, in Nandini Sunder v State of Chattisgarh¹² the Supreme Court quoted from Ajay K Mehra’s article in the book “Dark side of Globalisation” and said that” the persistence  of  “Naxalism”,  the  Maoist revolutionary  politics,  in  India  after  over  six decades  of  parliamentary  politics  is  a  visible  paradox  in a  democratic  “socialist”  India.  India has  come  into  the  twenty-first  century  with  a decade of departure from the Nehruvian socialism to  a  free-market,  rapidly globalizing  economy, which has created new dynamics (and pockets) of deprivation along with economic growth. Thus the same  set  of  issues, particularly  those  related  to  land,  continue  to  fuel  protest  politics,  violent  agitator politics, as well as armed rebellion. Are governments and political parties in India able to grasp  the  socio-economic  dynamics  encouraging these  politics  or  are  they stuck with a security-oriented approach that further fuels them ?”. The Supreme Court also held that “what  is  ominous,  and  forebodes  grave  danger  to  the security and unity of this nation, the welfare of all of our people,  and  the  sanctity  of  our  constitutional  vision  and goals, is that the State is drawing the wrong conclusions” and that “instead of locating the problem in  the  socio-economic  matrix,  and  the  sense  of disempowerment  wrought  by  the  false  developmental paradigm  without  a  human  face,  the  powers  that  be  in India are instead propagating the view that this obsession with economic growth is our only path, and that the cost borne by the poor and the deprived, disproportionately”. Unfortunately, there are not many takers inside and outside judiciary for this view.

 

Gone are the days when Marxian jurisprudence used to influence jurists and academicians. In an interview given by the critical theorist Duncan Kennedy to the Advocate Magazine  he said that ‘ when I was starting out as a law teacher, I spent quite a bit time reading Marx and Marxist theorists and they had a deep influence. I reject communist version of Marxism. I don’t believe in State ownership of the means of production. I don’t believe in vanguard theory. I don’t believe in the dictatorship of the proletariat. From Marx I got two things which I think are great: his critique of the way capitalism works, especially the role of ideology and his emphasis on the struggle between classes¹³. Justice O Chinnappa Reddy a former Supreme Court judge  openly advocated Marxist jurisprudence. Addressinga National Seminar on 13th October 1980 organised by India Law Institute, Justice Chinnappa Reddy said that the real foundation on which legal and political super  structures are found is the economic foundation. With the change of economic foundation super structure also changes rapidly. He drew analogy from Iherings’ classic work “the Struggle for Law” and said that every state punishes those crimes most severely which threatens its own peculiar condition of existence. While it allows a moderation to prevail in regard to other crimes which, not frequently, presents a very striking contrast to severity against the former.

A theocratic state brands blasphemy and idolatry as crimes deserving death penalty.

An agricultural state punishes boundary violator severely. A commercial state punishes who deals in false coins. A military regime punishes insubordination and breach of duty severely. In other words, the reaction of feeling of legal right, both the state and the individuals is most violent when they feel themselves threatened in conditions of existence peculiar to them. According to Justice Chinnappa Reddy ‘bourgeoise legal ideology is under repeated challenges and claims for justice are being made by the exploited and the under privileged groups, demanding interpretation of the laws in a way advantageous to them’ ¹⁴. In National Textile Workers v P.R Ramakrishnan¹⁵  Justice P.N. Bhagwati speaking for the Bench held that “ workers have a special place in socialistic pattern of society. They are no more vendors of toil, they are not marketable commodity to be purchased by owners of capital. They are producers of wealth as much as capital. They supply labour without which capital would be impotent and they are at the last equal partners with capital in the enterprise. Our Constitution has shown profound concern for the workers and given them a pride place in the new socio-economic order envisaged in the Preamble and Directive Principles of State Policy”. Directive Principles guarantee workers the right to participate in the management. But the pendulum, in the wake of neo free market libertarianism, has swung to the other end. Hire and fire has become the new rule. Even Government owned companies and undertakings are allowed to make appointments through back door and fire the employees with impunity. In State of Karnataka v Umadevi¹⁶ the Supreme Court did not blame the management for back door appointments as much it found fault with the  employees  to deny them security of employment for the reason of back door entry.  Prior to Steel Authority Of India Ltd. v. National Union Water Front¹⁷ on abolition of contract labour under the Contract Labour (Regulation & Abolition) Act the contract the employees were liable to be absorbed by the principal employer automatically. However, in Steel Authority of India, the Supreme Court held that there is no automatic absorption of contract employees on abolition of contract labour. The workers are no more equal partners with the capital. The government has also started sharing the principle propounded by Milton Friedman that the it is the social responsibility of the companies to maximise their profits even if it meant depriving of the constitutional right of the workers.

 

It is now axiomatic that economic development is measured in terms of Gross Domestic Product (GDP).  GDP is considered to be the indicator of prosperity. Charles Wilson, CEO of General Motors, who later became the Secretary of Defence under President Eisenhower, remarked that “what is good for General Motors is good for America”. It has become, under the new economic regime, duty of the Government to help Corporations to maximise profit for common good. “Trickle Down” theory holds the sway. It is often said that “trickle down theory’ means in economics that tax breaks and benefits for Corporation and wealthy will trickle down to every one and that all members of the society benefits from growth. Growth, the proponents of ‘trickle down theory’ argue, comes from those  with resources and skills to increase productive out put. ‘Greed is good’ theory thus stands legalised. Collapse of Lehman Brothers and similar big corporations in America, that were once considered too-big-to-fail, has proved that ‘trickle down theory’ did not work as it thought to work. The bankruptcy of Lehman Brothers was caused by human intervention and was a grave economic fraud. The result was persons at the helm of affair of the giant Corporation benefited immensely and investors all over the world had to suffer heavy financial loss. Joseph Stiglitz, a Nobel Laureate in Economics and who was Chief Economist in World Bank, in his book  “Globalisation and its Discontent” ¹⁸  points out that globalization has worked to the detriment of the middle class and the poor. He also pointed out that World Bank and International Monetary Fund through theirs skewed programme have made the people of third world countries suffer by ushering in an era of inequality. In his book ‘Prize of Inequality’ Stiglitz has pointed out that ‘in the aftermath of financial crisis no one would argue that bankers’ pursuit for self interest has led to the well being of all. It led to the bankers’ well being with rest of the society bearing the cost’. On the theory of ‘trickle down’ he said :

 

“Inequality’s apologists – and they are many- argue to the contrary that giving more money to the top will benefit every one, partly because it would lead to more growth. This is an idea called trickle down economics. It has a long pedigree and has long been discredited. As we have seen, higher equality has not led to more growth, most American has seen that incomes sink or stagnate. What America has been experiencing in recent years is opposite of trickle down economics. The riches accruing to the top have come at the expense of those down below” ¹⁹.

 

The staunchest critics of capitalism are not communists or socialists, but capitalists themselves. Raghuram Rajan, former Governor of Reserve Bank of India, and a renowned Economist with his colleague wrote the book “Saving Capitalism from the Capitalists”, severely criticising the way capitalism is made to work in the recent time. He pointed that corporate scandals, implosion of internet bubble, fragility of capitalist system and the crooks produced by market booms lead to failure of capitalism²⁰ . In  2009 Richard Posner, Chief Justice of Court of Appeal for the Seventh Circuit in America, wrote his book “Failure of Capitalism” ²¹. In the preface to his book he explained how market failure, the government’s myopia, passivity and blunders played critical role in allowing economic recession balloon into depression. He also explained how self interested decisions  of rational businessmen and consumers gave rise to economic depression. In 2010 he wrote another book “the Crisis of Capitalist Democracy” ²². In his book Posner explained that he believed in capitalism but capitalism according to him is not synonym for free markets.

 

Kerala has the unique distinction of electing the first communist government in the world. Many of judges who adorned the High Court of the State came through communist stream. Many of them had been social and political activists before they became judges and were well trained and experienced in Marxist ideologies. History however does not show that except Justice V.R.Krishna Iyer none had ever brought Marxian jurisprudence to the Bench. We do not find any marked departure from the law as it applied to the elite in the wake of globalisation, privatisation and liberalisation.

 

Law of the elite does not appear to fit into the scheme of things when it comes to the rights of the non-elite like workers, peasants, street vendors and the ordinary. Judiciary has to recognise that the State has a duty to safeguard the rights of the poor and has a duty to give them level playing field. Placing the rich and the poor on the same pedestal amounts to denial of real equality to the poor. Real equality dawns only when more protection is given to the poor and when they are brought to level playing field. Gayatri Spyvak, Professor in Columbia University, in her seminal article “Can the Subaltern Speak ?” ²³ quoted from the infamous note of Macaulay “Minute on Indian Education (1835)” and said that Macaulay was talking about creation of class who will stand as interpreter of the ruler and the ruled, that is common people of India. The newly created class speaks for the common men, the subaltern. The word ‘subaltern’ was used by Antonio Gramci in his “Prison Note Books” to denote the proletarian class. The subaltern study group to which Gayatri Spyvak belongs however use  the term  ‘subaltern’ to describe the non-elite as distinct from the elites. According to Gayatri Spyvak the subaltern cannot speak. Some body has to speak for them. When the elite class speak for the subaltern they speak in the language of the law of the elite. As a result, no level playing field is ever  set for the subaltern. Equal justice is thus denied to them.

 

In a corrupt ridden society there is no meaning in thinking that the elite would recognise and apply the law of the subaltern when the rights of subaltern is in issue. The elite class always apply the law of the elite to the causes of subaltern. According to data published by Transparency International, India is one among the countries in the world where corruption is rampant. In  Shivaji Rao Nilangekar v Dr. Mahesh Madhav²⁴  the Supreme Court said that “things are happening in public life which never ever anticipated before and that there were several instances of misuse of power by men in authority and position. This is a phenomenon of which the courts are bound to take judicial notice.” In Dinesh Trivedi v Union of India²⁵  Supreme Court relying on Vohra Committee Report took judicial notice of existence of criminal syndicate  involving nexus between politicians, bureaucrats, criminals and antisocial elements.  Supreme Court pointed out that these links amounted to a parallel system of government in which the common men is unprotected and live in constant fear of his life and property. Despite these stark realities exercise power of judicial review of administrative actions in continues to be in a copy book fashion. It is always presumed that  executive power is exercised legally and for the purpose for which it is intended. Except in exceptional cases courts do not go beyond the self-imposed judicial restrain warranting the presence of illegality, irrationality or impropriety before setting at naught an administrative decision. It is always presumed that the executive always act in good faith though the reality is other way round. Subaltern who, unlike the elite, have no access to the corridors of power, often unable to produce material to impress the court that there is misuse of power. Most are turned away stating that the courts are concerned only with decision making process and not the decision as such. In Om Kumar v Union of India²⁶ the  Supreme Court held that when fundamental rights and human rights are in issue  judicial review has to be based on the principle of ‘proportionality’. Proportionality principle demands the courts to decide the case on merit as a primary decision maker and not as secondary decision maker by confining judicial review to the question of correctness of decision making process. The Supreme Court has held that when infringement of Article 14 of the Constitution is in issue on the ground of discrimination principle of proportionality applies. Though the law was thus laid down by the Supreme Court two decades ago, the High Courts in India does not appear to have come to terms with the principles of ‘proportionality’ so far.

 

The present need in a corrupt society is an active judiciary that is able to apply  law of  the subaltern  when the rights of the subaltern is in issue and to give them right based justice having regard to merit of each case and not by a mere peep into the pigeon hole to satisfy the conscience of the court that the decision making process under review is proper or fair in terms of the age old principles of judicial review of administrative action.

 

Foot Notes:

1.   Friedman Doctrine; Social Responsibility of Business is to Increase Its Profits; The New York Times, September, 1970.

2.   https://www.youtube.com/watch?v=TZDXvgUxAgQ.

3.   Adam Smith; An Enquiry Into the Nature and Causes of Wealth of Nations, Oxford  Clarendon Press, 1979.

4.   Adam Smith; Theory of Moral Sentiments; Dover Publications; Mineola, New York (2006).

5.   2003 (3) KLT SN 88 (C.No.118) SC = (2003) 6 SCC 697.

6.   Judgment dated 20th November 2003 in Appeal (Civil) No.3017 of 1997 2004 (1) KLT SN 72(C.No. 96) SC.         

7.   2004 (1) KLT OnLine 1271 (SC) = (2004) 10 SCC 201.

8.   2005 (1) KLT OnLine 1156 (SC) = (2005) 2 SCC 262.

9.   1984 KLT OnLine 1223 (SC) = (1984) 3 SCC 369.

10.  1984 KLT OnLine 1212 (SC) = (1984)3 SCC 161.

11.  2014 (4) KLT Suppl. 88 (SC) = (2014) 8 SCC 804.

12   2011 (4) KLT Suppl. 9 (SC) = (2011) 7 SCC 547.

13.  A Conversation with Duncan Kennedy; the Advocate, Volume 24 No.2, Suffolk University Law School Journal, Page 56.

14.  Journal of Indian Law Institute Vol.25, 1983 April-June, No.2 page 151.

15. 1982 KLT OnLine 1048 (SC) = AIR 1983 SC 75.

16. 2006 (2) KLT SN 55 (C.No. 70) SC = (2006) 4 SCC 1.

17. 2002 (2) KLT SN 64 (C.No. 78) SC = (2001) 7 SCC 1.

18. Globalization and Its Discontent; Joseph E Stiglitz; W.W Norton & Company, New York, 2002.

19. Prize of Inequality, How Today’s Divided Society Endangered Our Future; Joseph E Stiglitz, W.W Norton & Company, New York, 2013.

20. Saving Capitalism from the Capitalists; Raghuram G.Rajan & Luigi Zingales; Crown Business; New York, 2003.

21.  Failure of Capitalism; Richard A Posner, Harvard University Press, Cambridge, 2009.

22.  Crisis of Capitalist Democracy; Richard A Posner; Havard University Press, Cambridge, 2010

23. Reflection on the History of An Idea, Can the Subaltern Speak ? Columbia University Press, New York, 2010.

24. 1987 (1) KLT OnLine 1027 (SC) = AIR 1987 SC 294.

25. 1997 (1) KLT OnLine 1102 (SC) = (1997) 4 SCC 306.

 

26. 2001 (1) KLT OnLine 1021 (SC) = (2001) 2 SCC 386.