Has the ICJ really stayed Kulbhushan Jadhav's death sentence?

2345 hours 9th May. I had just enjoyed watching Kolkatta Knightriders fail to chase a total of 167 against Kings XI Punjab and keeping Punjab's qualification hopes alive. Pleased that the form of the second placed Knightriders was faltering, I was about to go to bed as a happy Mumbai Indians fan secure in the knowledge that our top spot was not under threat. 

Just as I went through with my bed time ritual of scrolling through my twitter timeline for the last time in the day, I was startled by this tweet of Sushma Swaraj, India's Cabinet Minister for External Affairs, posted just after mid-night:

I have spoken to the mother of #KulbhushanJadhav and told her about the order of President, ICJ under Art 74 Paragraph 4 of Rules of Court.

— Sushma Swaraj (@SushmaSwaraj) May 9, 2017

Minutes later, online news websites in India had reported the news -

#KulbhushanJadhav row: International Court of Justice #stays former naval officer's #hanging by #Pakistan https://t.co/Ed6SC7zHxz pic.twitter.com/NU6rCo4dMw

— Firstpost (@firstpost) May 9, 2017

International Court of Justice stays execution of Kulbhushan Jadhav in Pakistan: Report https://t.co/YlFggXIu4p

— scroll.in (@scroll_in) May 9, 2017

While the newspapers and TV newschannels followed up the next morning -

• DNA -  Diplomatic win for India, International Court of Justice stays hanging of Kulbhushan Jadhav
• Indian Express -  International Court of Justice stays Kulbhushan Jadhav hanging
• Zee News - International Court of Justice stays Indian national Kulbhushan Jadhav's death sentence awarded by Pakistan

One thing that was consistent in the coverage across the Indian media was that it gave the readers / viewers the impression that the ICJ had issued a 'stay order'.

In contrast, Pakistani media reports mentioned the filing of the petition but no mention was made of any stay order. Dawn went with the headline "India moves International Court of Justice against Jadhav's conviction" while The Express Tribune said "India petitions ICJ for stay in Kulbhushan Jadhav’s death sentence". Daily Pakistan Global even asserted that the Indian claim was false:

Indian media, govt incorrectly claim stay granted by ICJ - No official statement from ICJ yethttps://t.co/QRxKVNrjUS

— DailyPakistan Global (@dailypakistangl) May 9, 2017

In turn ScoopWhoop in India published an article claiming that the Pakistani media was 'in denial of the stay on Jadhav's execution'. 

While there are assertions aplenty from both sides, nobody has really tried to answer the question of whether or not a 'stay order' of the ICJ really exists.

The request for provisional measures 

India has approached the International Court of Justice alleging a violation of the Vienna Convention on Consular Relations (VCCR) to which both India and Pakistan are parties. Whenever a national of another State is arrested in the territory of a party to the VCCR, Article 36 of the VCCR requires the State to inform the consulate of the country of that arrested national, allow the consulate to meet and assist the arrested person in the criminal proceedings if he so desires. India is alleging that these provisions were not adhered to in Jadhav's case and that India was denied consular access to Jadhav.

Since Jadhav has already been convicted and sentenced to death, India also requested that the ICJ pass 'provisional measures'. Provisional measures are similar to the concept of 'interim orders' in the Indian legal regime. Previously while deciding the LaGrand case which incidentally was also about VCCR violations, the ICJ has clearly held that the 'provisional measures' are binding.

ICJ's press release summarises India's request for the provisional measures as follows:

"India therefore requests that, “pending final judgment in this case, the Court indicate:

(a) [t]hat the Government of the Islamic Republic of Pakistan take all measures necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed;

(b) [t]hat the Government of the Islamic Republic of Pakistan report to the Court the action it has taken in pursuance of sub-paragraph (a); and

(c) [t]hat the Government of the Islamic Republic of Pakistan ensure that no action is taken that might prejudice the rights of the Republic of India or Mr. Kulbhushan Sudhir Jadhav with respect of any decision the Court may render on the merits of the case”.

Urgent communication  

Fearing that Jadhav maybe executed before the ICJ even has an opportunity to pass provisional measures, India requested that the ICJ pass an order on provisional measures without waiting for an oral hearing. However, India making a request does not automatically mean that ICJ would make such an order without hearing Pakistan. The ICJ has instead scheduled a hearing on the request for provisional measures in front of all the judges at 10am (Hague time) on Monday 15 May 2017. ICJ is scheduled to hear from both the countries that day. If after this hearing the provisional measures were passed in India's favour, it may be accurate to say that Pakistan has been ordered to 'stay' Jadhav's hearing.

Pending the hearing, the president of the ICJ (akin to a Chief Justice of an Indian High Court or Supreme Court) has merely sent an 'urgent communication' to the Prime Minister of Pakistan. The ICJ press release regarding this urgent communication does not reproduce the contents of the the urgent communication.

This urgent communication is what Susham Swaraj mentioned in her tweet as the 'order of the President, ICJ under Article 74 Paragraph 4 of the Rules of Court' (sic). Here is how Article 74 of the Rules of the Court reads:

Article 74

1. A request for the indication of provisional measures shall have priority over all other cases.

2. The Court, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency.

3. The Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it.  The Court shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings.

4. Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.

While the words "act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects" suggest that the President of the ICJ in his communication must have asked the Pakistan government to maintain status quo, the fact that these are preceded by the words "may call upon the parties" suggests that the 'urgent communication' is not in the nature of an order but merely a suggestion or a request as there is no language stating that the communication is binding.

European Journal of International Law blog has pointed out that while  such a communication could be seen to be similar to provisional 'holding requests' of ICSID tribunals which have been held to be binding, the crucial difference is that the ICSID holding requests are passed by the entire tribunal while the ICJ urgent communication is by the President acting alone. 

Thus it seems that the Pakistani media has been accurate about there being no 'stay order' per se in this case while Indian media has gotten carried away.

Precedents

Many congratulatory posts on Twitter by Indians show that the ordinary Indians have high hopes of a favourable outcome for Jadhav from this proceedings. However, if the previous three cases of Paraguay v. United States, LaGrand case (Germany v. United States) and Avena case (Mexico v. United States) are anything to go by, there exists a possibility that Jadhav may be executed regardless of the decision of the ICJ.

Read more about these precedents in my scroll.in piece here - A short history of India vs Pakistan cases at the International Court of Justice  - Despite the headline, that piece does cover other non India-Pakistan VCCR cases as well.

I have also in the past written for scroll.in about all the India-Pakistan international adjudication cases in greater detail here - Five previous India-Pakistan disputes that have been taken to international forums

No film should require clearances from three courts for release...

This article was first published on GNLU's only student run online magazine - Jury's Out.

‘Udta Punjab’ which released in theatres on 17 June, fought a rather uphill battle to get there. After the much publicised showdown with the Central Board of Film Certification (CBFC) in the Bombay High Court, the film got an A certificate with only one cut but the filmmakers’ legal troubles were far from over. Advocate Wattan Sharma had filed a petition before the Punjab and Haryana High Court calling for a ban on the exhibition of the film in Punjab alleging that the film reflects negative branding of Punjab and Punjabis, while Human Rights Awareness Association, an NGO approached the Supreme Court as well. Udta Punjab is far from the first movie to have to defend itself before courts in the face of petitions calling for bans. It is very common for groups to file Public Interest Litigation calling for a film to be banned on a variety of grounds including the most common ones of being against Indian culture or hurting religious sentiments. In recent years, ‘Finding Fanny’, ‘PK’, ‘Delhi Belly’, ‘Ram-Leela’, ‘Bajrangi Bhaijaan’ and many others have been in this position.

No say for objectors within the certification process

The Cinematograph lays down the certification process that each film must go through before it can be exhibited at any cinema hall in India. First, a film is viewed by an “Examining Committee” formed by the regional officer of the CBFC office where it is submitted for certification. The Examining Committee decides which certificate is to be granted and decides the cuts to be made before it can be granted. If the Applicant is unsatisfied with the decision of the Examining Committee, the applicant may also request the Chairperson of the CBFC to refer any film to Revising Committee. The CBFC Chairperson can also refer the film to the Revising Committee on his own motion. The Revising Committee views the same film print shown to the Examining Committee without any changes and makes its own recommendations with regard to certificate and cuts. Both the Examining Committee and the Revising Committee can also refuse to grant any certification at all which in effect works as a ban on the film in India entirely since under the law, no film can be shown without a certificate. In 1981, the Act was amended and the Film Certification Appellate Tribunal (FCAT) was created, adding a further step to the process. Now, an applicant can approach the FCAT against an order of the CBFC refusing to grant a certificate, granting only an S or A or U/A certificate or ordering for cuts in the film.

However the crucial part here is that only the original applicant for the certificate can lodge such an appeal before the FCAT. Thus, other groups or individuals who are offended by the film and wish that the film not be given any certificate at all (and thereby be banned) cannot approach the FCAT with their grievances. Thus, they resort to filing writ petitions before the High Courts or the Supreme Court and attempt to get films banned.

Amendment required

The present situation creates a situation where groups offended by a film approach the High Courts or the Supreme Court and in some cases like ‘Udta Punjab’ even both or several High Courts. This not only places an additional burden on these constitutional courts which are already burdened with more serious civil and criminal appeals but also creates multiplicity of proceedings where the filmmakers have to get clearance from the CBFC as well as various courts before releasing a film. As happened with Ram Leela and Udta Pubnjab, prolonged delays in litigation can cast doubts about the planned release dates of the movies as well.

One amendment that could easily resolve these issues would be to allow any person or organization which has an objection to the release of any film in any state to approach the FCAT against the decision of the CBFC granting a certificate to that film. In such a scenario, the FCAT which is a specialized film tribunal will be able to address the appeals of the filmmakers as well as the other interested parties in a single proceeding and its decision shall be final. The FCAT is adequately equipped to handle other petitioners’ legal and constitutional arguments as well since the Cinematograph Act already requires that the chairperson of the FCAT be a retired High Court Judge or a person qualified to be appointed as a High Court Judge.

Adopting such a procedure shall reduce the uncertainty that the filmmakers face and shall also help them to reduce legal costs as they would have to defend themselves before a single forum rather than many. Finally the courts shall be rid of the burden of the film related petitions and shall be able to apply their time towards more pressing legal and constitutional matters. It is high time that the Parliament realises that the time of three of its constitutional courts need not be spent on the matter of release of a single film.

This article was first published on GNLU's only student run online magazine - Jury's Out.

Ordinance Finally Brings Clarity regarding Cheque Bounce Cases

Section 138 of the Negotiable Instruments Act, 1881 contains the offence of ‘dishonour of cheque’, commonly known as ‘cheque bouncing’. Though it is one of the most commonly used provisions of criminal law in India – in several court complexes there is a designated courtroom dealing with only section 138 cases all year round – yet there has been great confusion regarding the jurisdiction of courts in these cases which the government sought to settle once and for all by promulgating the NegotiableInstruments (Amendment) Ordinance, 2015.

Section 138 lays down that the person who receives a cheque which bounces when presented for payment can approach a magistrate for bringing criminal action against the drawer of the cheque if the cheque amount is not paid within 15 days of giving a notice to the drawer.

The Multiple jurisdictions system and its problems

For several years, the victim who received a cheque which bounced had the freedom to lodge a complaint before either the magistrate in whose jurisdiction the collecting bank (bank branch where cheque was presented for payment) is located or with the magistrate in whose jurisdiction the drawee bank (bank branch in which accused has an account and on which the cheque is drawn) is located or even the magistrate of the place from where the notice was issued. Infact the 1999 Supreme Court judgement (K Bhaskaran v. Sankaran Vaidhyan Balan) regarding jurisdiction in such matters was so broad that there could even be five possible jurisdictions based on where each of the five elements of the offence is committed. This often led to abuse of the system where complainants presented the cheques in faraway places or issued notices from cities with no link to the transaction just so that they could file the complaint from these third cities.

Supreme Court changes course

However, the Supreme Court upset the existing status quo when in Dashrath Rupsingh Rathod v. State of Maharashtra, it held that the offence was committed only when the cheque was returned by the drawee bank for the lack of funds and thus only the magistrate of the place where the drawee bank is located had the jurisdiction to hear the case. This now meant that if a cheque drawn on a bank branch in Srinagar was given to a person living in Chennai and it bounced when presented it for payment at a bank branch in Chennai, the victim shall have to travel all the way from Chennai to Srinagar to file a case. This is because the offence is committed when the bank in Srinagar returns the cheque for lack of funds and not before that.

Problems Galore

The Dashrath Rupsingh Rathod decision of the Supreme Court meant that lakhs of cases had to be transferred to other courts or withdrawn to be filed again. Further complications were added because many banks now issue cheques that are ‘payable at par’. When presented for payment, these cheques are processed not by the bank branch on which they are drawn but by the same bank’s branch closer to where the cheque is presented for payment. The Supreme Court had not clarified where exactly the offence is deemed to be committed and where the jurisdiction shall lie in such cases.

The Ordinance Fix

The ordinance promulgated by the President on Tuesday again changes the jurisdiction in cheque bounce matters by adding section 142(2) –

“(2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction the bank branch of the payee, where the payee presents the cheque for payment, is situated”

 As per the ordinance, the local court within whose jurisdiction the cheque is presented for payment shall have jurisdiction over the matter meaning that if you issue a cheque drawn on a bank in Srinagar and give it to someone who presents it to his bank branch in Chennai for deposit in his account, only the courts of Chennai shall have jurisdiction. In the past, in cases of multiple cheque bouncing, some complainants used to present the various cheques which they held in different places in order to harass the accused by have commencing criminal proceedings in various different cities. However, the new ordinance puts an end to such harassment by making it clear in section 142A(2) that once one cases is filed in one court, for all the future cheque bounce instances between the complainant and the accused, the same court shall have jurisdiction regardless of where the cheques are presented for payment by the complainant.

 The ordinance shall once again prompt large scale transfers of cases, however by incorporating a clause pertaining to jurisdiction within the Act itself, it eliminates the possibility of future conflicting decisions of the courts on this issue. Furthermore, by prohibiting complainants from approaching more than one court in respect of several cheques of a single person, it also adequately takes care of the interests of the accused and thus must be seen as a positive step.

 Recourse to the ordinance route was necessitated because though the Lok Sabha passed an identical Bill in the previous session of the Parliament, it could not be taken up in the Rajya Sabha due to the lack of time. It is imperative that both houses approve the Bill to replace the ordinance in the next session because allowing the ordinance to lapse would plunge the system back into a chaotic state.

More Passengers on the Clapham Omnibus! Reasonable man gets company!

"Public opinion, nowadays, is the opinion of the bald-headed man at the back of the omnibus. It is NOT the opinion of the aristocratical classes as such; or of the most educated or refined classes as such; it is simply the opinion of the ordinary mass of educated, but still commonplace mankind."

When Walter Bagehot included this line in his famous treatise The English Constitution published in 1867, little did he know that it shall lead to the creation of a of a legal phrase denoting the standard of reasonable care, which shall last more than a hundred years.

It was in 1903 that the “man on the Clapham omnibus” made his debut in judicial decisions when his mention appeared at page 109 in the judgement, McQuire v Western Morning News Company Limited.[1] ‘The man on the omnibus’ became ‘the man on the Clapham Omnibus’ with a typical working class London neighbourhood selected as his destination lest anyone mistake him to be from the upper class elite.

However, his moment of glory definitely came in the 1933 case of Hall v. Brooklands Auto Racing[2] when Greer L.J. of the Court of Appeal held "…the man in the Clapham omnibus taking a ticket to see a cricket match at Lord's would know quite well that he was not going to be encased in a steel frame which would protect him from the one in a million chance of a cricket ball dropping on his head.[3] …In my opinion, in the same way such a man taking a ticket to see motor races would know quite well that no barrier would be provided which would be sufficient to protect him in the possible but highly improbable event of a car charging the barrier and getting through to the spectators. The risk of such an event would be so remote that he would quite understand that no provision would be made to prevent it happening, and that he would take the risk of any such accident.”  Poor, Mr. Hall who had obtained damages of 998 shillings from the lower court had the judgement in his favour set aside due to the implied terms in the contract for purchase of the ticket which ‘the man on the Clapham omnibus’ would have known. More than 110 years after its first use, the ‘Man on the Clapham Omnibus’ is still often invoked by the judges across common law jurisdictions.

However, what is uncommon is judges accepting the test for what it really is – judges dictating what ought to be. When the reasonable man test or any tests of like nature are applied, the court judges the situation not by considering what the persons involved in the case thought or not by taking evidence as to what the average view in the country is but by actually subjectively making a decision on the basis of what the judges think the reasonable man’s perspective is or ought to be. Thus the persons on the Clapham omnibus are actually none other than the judges themselves!

Recently, the United Kingdom Supreme Court[4] speaking through Reed L.J.[5] in Healthcare at Home Ltd. v. Common Services Agency[6] has elaborated eloquently about the various new legal fictions similar to the man on the Clapham Omnibus that the courts have come up with in recent times. I am reproducing the first four paragraphs from that wonderful judgement here -

1. The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years.

2. The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias. As Lord Radcliffe observed in Davis Contractors Ltd v Fareham Urban District Council[7]

“The spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself.”

 3. It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would misconceived for a party to seek to lead evidence from actual passengers on the Clapham omnibus as to how they would have acted in a given situation or what they would have foreseen, in order to establish how the reasonable man would have acted or what he would have foreseen. Even if the party offered to prove that his witnesses were reasonable men, the evidence would be beside the point. The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard.

4.In recent times, some additional passengers from the European Union have boarded the Clapham omnibus. This appeal is concerned with one of them: the reasonably well-informed and normally diligent tenderer

 

---

[1] [1903] 2 KB 100

[2] [1933] 1 KB 205

[3] I do wonder if he had been ruling in the present era, Greer L.J. would indulge in this cricket analogy, seeing how often the likes of Gayle dispatch the ball into the crowd.

[4] This is so weird. Since I never have had to cite a post-2009 UK Apex Court case in any of my writings till date, this is the first time I am citing the UK Supreme Court as opposed to the House of Lords. I know and appreciate the arguments regarding strict separation of power but it still feels weird to cite the UKSC.

[5] He shall be one of the last few Lord Justices (L.J.). New UKSC judges appointed herewith shall not be elevated to the House of Lords.

[6] [2014] UKSC 49

[7] [1956] AC 696, 728:

Tweet

---

RBI allows reduction of 'free' ATM transactions - Shocking Disregard for Depositors' Welfare

Photo from Wikimedia Commons

Reserve Bank of India, the Indian Banking regulator is often praised for being a tough regulator whose strict policy formulations ensured discipline amongst the Indian banks and managed to (atleast to a significant extent) shield the Indian banking system from the financial crisis in 2008.

However, looking after the banking system from a macro perspective is not the only role of the Reserve Bank of India. Its very own website states that the  Department of Banking Operations and Development is responsible for regulation of commercial banks, which is ‘aimed at protecting depositors’ interests’.

However, if you look at the recent notification (RBI/2014-15/179 DPSS.CO.PD.No. 316/02.10.002/2014-2015) titled “Usage of ATMs – Rationalisation of number of free transactions” it would seem as if the RBI is forgetting its role with respect to protection of consumer interests.

Get charged for own-ATM transactions

Previously the position was that ATM transactions at ATMs other than the card issuing bank’s own, were charged beyond the limit of 5 free transactions a month.

However, the new notification allows banks to charge a transaction fee (capped at Rs. 20) for every transaction beyond the free limit of 5 transactions even for use of its ATM cards at its own ATMs!

This is atrocious and defeats the purpose of having ATM machines in the first place. The advantage of having ATM machines was that individuals could withdraw cash as and when needed. This meant that many people, especially students are in the habit of making several (much more than five) withdrawals every month with each one being of small amounts such as Rs. 100-1000. Such a habit was convenient since one could avoid the risk and hassle of carrying large amounts of cash and at the same time one could continue to earn interest since the money was left with the bank and not in the wallet.

Only 3 free transactions at other bank ATMs

The new notification allows banks to restrict their customers’ usage of other bank ATMs to just 3 free transactions every month for transaction in Mumbai, New Delhi, Chennai, Kolkata, Bengaluru and Hyderabad (at other locations banks must allow for 5 free transactions). In theses cities on every transaction beyond the third one on other bank ATMs, a transaction fee can be levied.

No distinction between financial and non-financial transactions

Furthermore, the counting towards the free transactions includes “non financial” transactions such as balance enquiry and a ministatement. It is not clear whether the change of the ATM PIN shall be considered as a non financial transaction counted towards the limit of 5 free transactions. If they are so considered, it shall be a major step backward for security since it shall act as a disincentive for changing PIN frequently. People would rather save their free transactions for withdrawals than change of PIN.

Banks given discretion and hence, the poor and middle class bears the brunt

The said RBI regulation is not mandatory and imposition of charges has been left to the discretion of the banks. This means that the banks can choose to let the present practice of unlimited free transactions on the home network ATMs continue unabated, or they can impose chares beyond five free transactions. Similarly they may allow more than three or even unlimited free transactions at other bank ATMs.

As of now SBI has already started charging for more than 5 withdrawals on SBI’s own network of ATMs while the other banks are pondering on what to do. However, a more sinister practice which is already in place and is likely to be extended is that the customers with premium accounts, with high AQBs (Average Quarterly Balance) i.e. the well off customers with fat bank balances are allowed to have unlimited withdrawals at even other bank ATMs while ordinary account holders are charged for transactions beyond the free limit. This practice by the private banks and a few of the PSUs is likely to be extended by allowing more than 5 free home network transactions to the premium customers (rich guys) while the ordinary folks have to pay for every transaction beyond the free limit.

Such discriminatory policies which work against the interests of the small depositors is exactly the sort of evil that RBI, the regulator is supposed to prohibit in order to safeguard the depositor’s interests. Indian banks have managed to perform well enough and have earned profits as well for the past several years of providing unlimited free own-bank transactions and five free other bank transactions every month and hence the Indian Banks’ Association’s argument regarding the significant costs of providing such service deserves to be treated with skepticism. Even if there are costs, I am sure that the banks are entirely capable of absorbing them without a hiccup as they have been doing for the past few years.

I hope the RBI shows regard for the depositors interests and withdraws this notification soon.

Do comment and let me know regarding your views regarding this....

Tweet

Monkey selfie! Does the monkey own the copyright to it? An Indian perspective…

David Slater, a British wildlife photographer visited a park in Indonesia in 2011. At the park, a crested black macaque got its hands on one of his cameras and took several selfies, including the one accompanying this blogpost. Slater is reported to have said said “They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button, … The sound got his attention and he kept pressing it. At first it scared the rest of them away but they soon came back - it was amazing to watch.”

The selfie accompanying this post has become a point of dispute between the Wikimedia Foundation and David Slater since Wikimedia refused to take the image down and has deemed it to be in public domain by displaying the following notice -

“This file is in the public domain because as the work of a non-human animal, it has no human author in whom copyright is vested.”

Contrary to what some news outlets have tried to suggest, even the Wikimedia foundation never really suggested that the copyright belongs to the monkey legally. That was just bad reporting and clickbait headlines on part of Times of India.

Indian Position

I am not very well read on Copyright Law but a cursory reading of the Indian law on the subject i.e. Copyright Act, 1957 seems to suggest that Wikimedia would be right even if all the events had taken place here.

Section 2(d)(iv) read with section 17 makes it clear that the person clicking a photograph is its author and the owner of the copyright so long as the photograph is not clicked as another person’s employee or upon being commissioned by another to click it. The relevant sections are as follows (underline added for emphasis) --

2. (d)(iv) “Author” means -- in relation to a photograph, the person taking the photograph;

17. First owner of copyright.-Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein.
Provided that-
(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;
(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made,for valuable consideration at the instance of
any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

 

Since, by no means can it be proved that the monkey was an employee or a person acting for valuable consideration, it is quite clear that under the Indian law as well, Mr. Slater would not be the owner of the copyright despite the camera being his. Thus the wikimedia stance seems sound even when tested on Indian Copyright law.

 

Does the copyright belong to the Monkey? Is it a ‘Person’?

Now that we established that the copyright will not belong to Mr. Slater, the obvious question that next arises is whether or not the Monkey shall then be the owner of the copyright. As per sections 2 and 17 the would be the author of the photo and the first owner of the copyright, but only if it can be established that the monkey is a ‘person’. Since the word person is not defined under Copyright Act, 1957 we shall have to look into the General Clauses Act, 1897. It states -

"Person" shall include any company or association or body of individuals, whether incorporated or not…

While a simple reading of this would suggest that a Monkey is not defined to be a person, it could be argued that the definition, the way in which is worded only clarifies that in addition to the usual or other meanings conveyed by the word ‘person’, it would also include companies, association of persons etc. The definition does not bar a monkey from being defined as a person at all, though for all practical purposes I think no court would be ready to entertain a claim that ‘person’ includes Monkey.

 

Can Monkeys be non-human persons?

Though I say it is unlikely to succeed, I would love to see someone try argue that monkeys are ‘persons’ and  capable of owning copyright. I think one would almost certainly have to rely on a policy statement from Ministry of Environment and Forests which suggests that animals such as Dolphins may have rights. The statement was issued when the government banned dolphins from circuses or marine park shows. While by no means does a mere statement have the force or weight of law, it could be argued that both dolphins as well as apes or monkeys should be termed as ‘intelligent nonhuman persons’ having some rights though not all.

The ministry is reported to have stated -

Whereas cetaceans in general are highly intelligent and sensitive, and various scientists who have researched dolphin behaviour have suggested that the unusually high intelligence; as compared to other animals means that dolphins should be seen as ‘non-human persons’ and as such should have their own specific rights and is morally unacceptable to keep them captive for entertainment purpose,” the ministry said. <Link><Link>

 

State as a guardian?

If monkeys or other animals could actually be proved to be ‘persons’ eligible of owning copyright, the next question that would arise would be how would they enforce it in courts or what would they do with their revenue gained through licensing if any. One possible model that could infact work would be with the entire animal kingdom considered to be one large association of non human persons with all the copyrights of selfie clicking animals accruing to it. The state could then be the guardian of this entity and incharge of licensing the images. The funds raised through licensing could be collected in a special fund on animal welfare… The existence of such a model could also possibly extend its own scope to include animal sound recordings apart from selfies!

Note: The copyright of the image used on this page either belongs to Mr. Slater or the monkey or the image is in public domain. It certainly doesn’t belong to me. I believe my usage of the image is permitted under section 52 of the Copyright Act, 1957 as fair dealing for the reporting of current events.

 

That is all from my end. What do you think about the monkey selfie?

Do you think Mr. Slater owns the copyright or the monkey?

Or do you think differently and believe that the rights of humans who take selfies should be stripped of their human rights?

Do comment below and let me know!

Tweet

End of the airport overcharging (hopefully…)

Not very long ago, I was at the Ahmedabad airport, waiting to board a flight to Calcutta. With time to kill before boarding and faced with the prospect of a two hour long flight without any onboard meal, I wandered about the airport looking for some nice snack. Not only were all the fastfood outlets serving the same fare at almost twice the usual price, even a can of softdrink cost Rs. 100. I had to reluctantly pay Rs. 40 for a packaged ice-cream with printed Maximum Retail Price (MRP) of just Rs. 25.

 

Daylight robbery by exploiting the restaurant exemption

As per the law, nobody is allowed to sell packaged goods for a price which is more than the printed Maximum Retail Price. However, hotels and restaurants are exempt from this rule as the courts have ruled that when hotels or restaurants serve a packaged item, it does not constitute a ‘sale’ of the product per se because the hotel / restaurant combines it with a service and the amount charged to the customer includes the charge for service as well as any modification made to the product. Though some courts have passed differing orders in some individual cases, the SC judgement in State of Punjab v. Associated Hotels of India (AIR 1972 SC 1131) largely holds the ground.

It is very clear that when no service is bundled with the products, the products cannot be sold for more than the MRP and thus stalls at the airport which merely handover chocolates or soft drink cans to the customers should not be allowed to charge beyond the MRP.  To explain their behaviour, the airport stall owners cite the fact that they pay exorbitant rents to the airport authorities and they also claim to have been authorised by them to overcharge.

On the face of it, this model of our airports being developed by companies who in turn recoup their costs from rents paid by food stall owners, actually sounds good. However, that is not how they operate. Private companies such as GVK and others who have modernised the airports charge every single passenger, a "User Development Fee". So, the attempt to overcharge has nothing to do with raising funds to recoup airport development costs but is simply an unethical deal through which both, the airport management and the stall operators make supernormal profits by overcharging the airport passengers.

 

DK Chopra v. Snack Bar

There is no good reason why stalls at the airports should be exempt from the MRP regulations and the National Consumer Disputes Redressal Commission (NCDRC) has recognised this. On 4th March 2014, the National Consumer Disputes Redressal Commission (NCDRC) has ruled that an airport stall which is not a restaurant cannot charge a customer more than the MRP in what I think is a landmark judgement. The stall had to pay a massive fine of Rs. 5 lakhs for overcharging the complainant by Rs.75 for a can of RedBull.

In its judgement NCDRC has accurately pointed out that Airport Authority of India or any other airport developer has no right to permit stall owners to violate the law regarding MRP. In what is sure to annoy the owners of pretentiously named ‘snack bar’, the NCDRC has compared the airport stalls to paan-beedi shops. The judgement states- A Snack Bar, just like a Tea Stall or a Pan/Beedi Stall, hardly provides any service to its customers.

 Full text here. News article here.

 

The Way Forward

Knowing that this is India and that respect for rule of law is scant, I am sure that the practice of overcharging shall continue despite the NCDRC ruling. I regret not having protested the overcharging at the Ahmedabad airport the other day. However, I have now vowed to be vigilant about the prices charged at the airports. It is crucial to note that the complainant failed at the district and state forums, amongst other things by the reason of not being able to prove the receipt. Thus, one must remember to insist on and preserve the receipt from the airport stalls in order to be able to successfully pursue the matter.

 

P.S.-

Though it is not the focus of this post, the concept of MRP in itself is controversial for two reasons -

1. It amounts to what many may categorise as unwanted government interference in pricing mechanism. It can be argued that the market forces of demand and supply should be setting the prices of all the goods. However, I believe that in many places in India, some vendors hold such a position in the market that they can influence the price singlehandedly and the MRP system is necessary to protect the consumers.
2. The rule that customers cannot be charged more than the MRP is found in The Legal Metrology (Packaged Commodities) Rules, 2011 rather than in the act itself. Though the courts have not struck down these rules, it maybe possible to argue in future that the Central Government, while making these rules has exceeded its authority under the Parent Act, making the rules ultra-vires. (Nowhere in the Act is it said that selling at a price above the MRP is illegal or punishable)

 

I believe that regardless of whether it is a prudent system or not, as of now, it is the law of the land and nobody should be allowed to violate it.

Tweet

Proportional Representation for India

A recent class discussion in which @theneotorious @bakbakee and @zahra_aziz24 actively debated upon the alternative electoral systems for India, reminded me of a speech given by Mr. Ajit Abhyankar, secretary of the CPI (M) Pune District committee at a recent seminar held at ILS Law College Pune. Of all the different electoral reforms suggested that day, the model which he suggested that day seemed the most appropriate to me in the Indian context. Here’s how it goes -

Top 5 Constitution Articles that baffle me (and probably you!)

It is trend. In first semester when I was supposed to be studying Torts, I used to feel like reading Public International Law. Then when I was doing a PIL moot I felt like reading landmark Constitutional Law judgements. When it was the deadline for moot memo submission neared, I spent a great amount of time reading about a by-election in Singapore and other random things. Tonight, when I am supposed to be reading WTO Panel reports and other material for, I am actually flipping through a (borrowed) Constitution Bare Act.

I know, I should totally be looking through Seervai and other treatises on Constitution to find out true intention behind the introduction of the following Articles in the Constitution of India but then blogging about this is easier. Here are the Articles that baffle and hopefully, someone can enlighten.

• Article 290A

  A sum of forty-six lakhs and fifty thousands rupees shall be charged on, and paid out of the Consolidated Fund of the State of Kerala every year to the Travancore Devaswom Fund; and a sum of thirteen lakhs and fifty thousand rupees shall be charged on, and paid out of the Consolidated Fund of the State of Tamil Nadu, every year to the Devaswom Fund established in that State for the maintenance of Hindu temples and shrines in the territories transferred to that State on the 1st day of November, 1956, from the State of Travancore-Cochin.

  Transferring taxpayer funds to temples directly? What happened to being a secular republic? What is it all about? I am guessing it is some concession made to princely ruler of Travancore to get him to accede to the Union but it is still just absurd. Why Indira Gandhi didn’t get rid of this along with the Privy Purses is beyond me.
• Article 371E

  Parliament may by law provide for the establishment of a University in the State of Andhra Pradesh

  Hello dear MPs! Didn’t it occur to you that you could directly pass an Act to that effect rather than making a provision in the constitution? I suspect they were just being lazy and instead of actually drafting a law (which presumably shall be a very long, detailed act), they just threw in a one liner into the Constitution via the 32nd Amendment.
  If constitution articles have feelings, this one must be feeling pointedly neglected and ignored especially since several volumes of books, endless debates and even agitations have taken place over its nearby neighbour, Article 370, while nobody cares about this one.
• Article 273
  (1) There shall be charged on the Consolidated Fund of India in each year as grants-in-  aid of the revenues of the States of Assam, Bihar, Orissa and West Bengal, in lieu of assignment of any share of the net proceeds in each year of export duty on jute and jute products to those States, such sums as may be prescribed.(2) The sums so prescribed shall continue to be charged on the Consolidated Fund of India so long as any export duty on jute or jute products continues to be levied by the Government of India or until the expiration of ten years from the commencement of this Constitution whichever is earlier.(3) In this article, the expression "prescribed" has the same meaning as in article 270.

Firstly, I don’t really understand the purpose behind having this provision at all. Secondly, what is the status now? Is it now totally redundant since ten years have long passed? Why hasn’t any one of the hundred Constitutional Amendments repealed it?

The Constituent Assembly also used to sit as the unicameral provisional parliament, this is probably a result of one of the days when they were confused about which capacity they were sitting in! This is far from a fundamental issue and could have easily been dealt with without having an Article in the Constitution.

 

• Article 366

Being used to finding definition clauses in the first couple of sections of any Act, I was stunned when I first saw that the Constitution has more than one Article having marginal note ‘definitions’. This is the most generic definitions Article in the Constitution and included in the 30+ clauses of the Articles are gems like -

(3) "Article" means an article of this Constitution;(16) "Part" means a Part of this Constitution;(23) "Schedule" means a Schedule to this Constitution;

• Article 393

This Constitution may be called the Constitution of India.

393! Did you see that? 393! Undoubtedly the most simple Article, why is it not Article #1? Why leave it till much much later?

 

 Much has been said about our Constitution being the longest in the world. I do largely agree with view that there is nothing wrong with having a long constitution if it helps to make clear the provisions. However, that said, it is ridiculous how amendments have burdened the constitution with redundant and extremely context specific Articles which have no general implication.

The word ‘Constitution’ by itself gives the impression to every person that it is likely to be a document containing the most fundamental principles of governance rather than a collection of random provisions inserted to suit the need of the government and then forgotten.

There is one clause which is so specific that it applies only to one particular1987 proclamation of emergency due to breakdown in constitutional machinery of the state in Punjab.

It is high time that the constitution be rid of the many absurd, redundant provisions! I suggest that the parliament consider a “Constitutional clean up Amendment”!

If nothing else, a smaller constitution shall mean cheaper bare acts and make the law students happy! :P

Image of the Constituent Assembly is from the Wikimedia Commons.
Link - http://en.wikipedia.org/wiki/File:Indian_Constituent_Assembly.JPG 

The forgotten hunger strike...

I am sure that you have heard a great deal about Anna Hazare’s hunger strike for the Lokpal Bill. I am also sure that you have heard about Baba Ramdev’s bizarre fast and its fallout. However, does the name Irom Sharmila ring a bell? No? what about AFSPA? No idea? Get idea! You really need to read this post…