Posted in Opinion

RTI: A grossly misused tool in the hands of CPIO

An RTI, or the Right to Information Act, 2005 is undoubtedly one of the best tools in maintaining the transparency and accountability among the governing and the governed. The mission of this act clearly objectifies and commits to providing factual information, reliable data with an authentic source. The Preamble puts a cherry on the cake by reading it very loud and clear “An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.”

The RTI act is a powerful tool to safeguard the interest and faith of the citizen in the economy and the system, but unfortunately, the way RTI is responding to the applicants is a matter of severe concern and great disappointment. It will not be a blunder to say that ‘Yes, RTI is a grossly misused tool’ and the authorities who are responsible for its smooth flow are the root cause of this problem.

  1. Mainly, it’s the attitude of CPIO, very pessimist towards their work. CPIO, instead of providing information tries to deny it with the provisions under section 8 of the Act. CPIO usually denies the application stating the reason for third party information u/s 8(1)(j) which reads as “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information”. There is a need to understand the difference between personal and public information of the third party. The commission in its various orders issued the show cause notice to CPIOs and asked them to prove, how the concerned third party information is the private information, and how that very general information of contextual party is going to harm him. It has been observed that either CPIOs are very protective towards the records or they are not willing to give the information to the public. Commission’s order in case number CIC/SH/A/2016/001055 is a precedent for this issue.
  2. Another reason is the delay in transferring the application to the concerned department. If an officer is not the informing authority towards an application then there is a situation of delay in forwarding that paper to the relevant table. This leads to the imposition of the highest degree of penalty upon the authorities. It has been observed that CPIOs never felt it important to record the transfer of the application to their colleagues, for example, attaching a letter or taking the signature for the transferring of the document to the concerned officer might be a proper solution to this problem. Following points can be considered for this issue: CIC/EPFOG/A/2017/173925:
    1. CPIO, if forwards an application for information then he must write on a formal dated letter, which will show his attentive attitude and active effort.
    2. The first appellate authority should entertain the case more sincerely and must analyze the case with the intention to provide information to the applicant.
    3. CPIO should be informed and trained about the manner to furnish the response to an RTI application.
    4. There must be provisions for the penalty on first appellate authority for responsible and sincere working.
    5. Assisting officer should assist the CPIO more responsibly and quickly, else penalty may go on him too.
    6. If the information is tough or large enough to draft then CPIO can suggest an inspection to the applicant.

      There is the need to strengthen the transparency of files and records and bring parallel to act’s section 4(1)(a).

  3. The never-ending problems include the basic loopholes as well. CPIO lacks basic writing skills. There is an immediate need to train the CPIOs. They should follow the basic writing skills when replying to an application. There are instances when CPIO forgot to mention the date in the application or a subject on the application is either not clear or not added. This practice not only confuses the citizen but also troubles the commission to determine the exact date sheet of the case.
  4. The Role of assisting authority is vital in helping the CPIO. Many a time, it is the assisting officer or the concerned officer who fails to help the CPIO in furnishing the information. As per the provision of Section 5(4), the assisting officer acts in the capacity of assisting CPIO and he has all the relevant duties and rights to furnish the information. Case number CIC/EPFOG/A/2017/173925 is based on the same issue. Not to forget that if the assisting officer lacks the efforts then the penalty can be imposed on him also.
  5. CPIO, sometimes, excuses that they are unable to submit the reply as there is more work on their shoulders and this an additional charge of CPIO disables them to work properly on any of the position. The gravity of this excuse cannot be ignored as it may be possible that the overloaded work pressure does not allow the CPIO to deal with the applications attentively. There is a need to study this issue and to understand the depth as up to where does this effect.
  6. Sometimes the summoned officer is represented by another officer, especially in the case of transfer or retirement. This causes the delay in the order of commission as the summoned CPIO is actually absent and he is the actual party who was involved on the prima facie basis. Presiding CPIO must be instructed that if they receive the notice on the behalf of summoned CPIO then it is their duty to forward it to them and keep the option of his own representation as to the last resort because as per the precedents it may be possible that if facts and circumstances turn out to be rude then the representative can be fined.
  7. A CPIO should interpret the application and try to furnish the information. What happens is that CPIO also plays this tactic to deny the application stating an error in the application. Section 5(3) of the RTI Act, a CPIO or SPIO has to render reasonable assistance to the person seeking the information if required. As per the orders of the Commission the CPIO should try to talk the applicant and sort out the matter as conveniently as possible. The same fundamental was observed and ordered by the commission in the case number CIC/POSTS/A/2017/125738.
  8. One of the biggest turning points in the RTI cases is that CPIO initially deny furnishing the information sought by the applicant on whatsoever ground but when they held answerable to the show-cause notice issued to them the commission then they provide the information with immediate effect. This attitude in CPIOs is very discouraging because not everybody files an appeal. This is trouble not limited up to applicants only, this levies the unnecessary burden on the commission also, especially as those cases which are in less of judicial mind or legal issue or any real problem. The commission was set up with the motive to ensure the fast redressal of case but such practices depress the motive behind the formulation of this RTI Act. Case number CIC/EPFOG/A/2017/151493 is one of the cases dealing with the same issue.

All are these instances when CPIO brought the misfortune for the RTI Act. The promise delivered by the preamble remains undelivered and the tool gets depleted because of such corrupt activities. Section 26(1)(d) of the RTI reads it very clearly “train Central Public Information Officers or State Public Information Officers, as the case may be, of public authorities and produce relevant training materials for use by the public authorities themselves.”

It is important to ensure the workshops for the training and assessment of the CPIOs so that the improper working situation and this level of unprofessional behavior can be avoided. These kinds of activities not only cause a problem to the applicants but also attract a penalty over CPIOs.

The author has the field experience of being an intern with Prof. M.S. Acharyulu, Central Information Commissioner of India, CIC, Delhi. He has worked multiple times with the CIC.


ABOUT THE AUTHOR

Anchit Jain

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Anchit Jain is pursuing law from the ICFAI University Dehradun. He is a third-year law student in B.B.A. LL.B (Hons.). He is interested in ADR, RTI and Consumer Laws. Debating, Dramatics and Chess are the hobbies he carries with him.

Posted in Constitutional Law, Criminal Law

Analysing the Constitutionality of the Marital Rape Exception under IPC

While Indian rape laws have been amended several times, most notably after the infamous Tukaram v. State of Maharashtra,[1] and more recently after the Delhi gang-rape in 2012, one particularly contemptible colonial vestige has managed to survive these amendments. This is Exception 2 to Section 375 of the Indian Penal Code, often referred to as the marital rape exception.

It is pertinent to bear in mind at the outset that, in the recent past, there has been a significant shift in the attitude of the Supreme Court towards criminal provisions of law based on Victorian-era morality. The reading down of Section 377 as unconstitutional,[2] entirely striking down Section 497[3] bear testament to the current attitude of the Supreme Court, which is at stark odds with that displayed in the notorious Suresh Kumar Koushal v. Naz Foundation[4] in 2013. Indeed these cases quite clearly indicate that the marital rape exception, which is undoubtedly premised on Victorian morality,[5] is living on borrowed time, until challenged.

Through this article, I seek to argue that the marital rape exception is unconstitutional, since there is a clear violation of Article 14.

The Exception Vis-A-Vis Article 14 of the Constitution

Exception 2 to Section 375 of the Indian Penal Code states: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”[6] While non-consensual sexual intercourse by a man with a woman who is not his wife is rape, non-consensual sexual intercourse by a man with (a woman who is) his wife is not rape, due to the exception. Hence, the latter is not punishable under Section 375 of the Indian Penal Code. The exception thus creates a classification on the basis of marital status. Consequently, the exception must be tested on the touchstone on Article 14.

To pass the test of Article 14, the classification must be based on an intelligible differentia and must bear a rational nexus to a legitimate State objective. However, the exception fails all the requirements.

The basis of the classification, as mentioned earlier, is marital status. Thus, the question that needs to be answered is if marital status constitutes intelligible differentia, and bears a rational nexus to the objective of the Act, in the present context.

The law on this is clear: the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others.[7] Here, the married women form one group and the unmarried women form another. As noted earlier, the protection of Section 375 is not extended to the group of married women. The question to be answered now is whether the differentia of marital status is valid to deprive the protection of Section 375 to a class of women?

The offence of rape, under Section 375, belongs to Chapter XVI: Of Offences Affecting the Human Body. For any offence under this Chapter, marital status is not recognised as valid intelligible differentia. Section 304B,[8] which also belongs to the class of offences affecting the human body, explicitly rejects marital status as an intelligible differentia, and to the contrary, creates a presumption against the husband, subject to the fulfilment of certain criteria.

Similarly, there are no exceptions to Sections 354(A) to 354(D),[9] in favour of the husband. Section 377[10] also does not create an exception in favour of the husband. While it might be argued that Section 304(B) (and the related Section 498A) was introduced for a specific purpose, that is, to deter dowry deaths, and are hence outliers, no such claim can be raised in the context of the other sections of the Chapter.

Thus, the structure of the IPC does not permit marital status to be the basis of classification for any offence affecting human body, and the emergent norm is clear that whenever the question of the human body, the consideration of marital status is not relevant to deny the protection of criminal law to a class of persons. However, exception 2 to Section 375 is in contravention to this, inasmuch as it creates a classification based on marital status and accordingly, deprives the protection of law to a group of women, based on such classification. Thus, the classification is not based on valid intelligible differentia.

Further, even if the previous argument were not to find favour with one, it can be argued that objective sought to be achieved is illogical and thus, not a legitimate purpose. Under the current position of law, the objective invoked by the State shouldn’t be illogical, unfair and unjust.[11] In simpler terms, it should be a legitimate purpose. When in Independent Thought v. Union of India,[12] the exception was read down to exclude married women between the ages of 15 and 18 from its ambit, the State, though in vain, invoked the objective of “preservation of the institution of marriage,” to be the legitimate purpose behind the exception. The Court, in that instance, very explicitly rejected the avowed objective to be legitimate purpose, stating that “marriage is not institutional but personal in nature.” The Court then went to the extent of stating that “nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable”. The Court differed in its approach to the very characterisation of the nature of marriage. The Court, in contradistinction to the State’s characterisation of marriage, held that the nature of marriage is personal, thus precluding the state from ever successfully invoking the objective. Therefore, the argument that the exception is justified in its existence to preserve the institution of marriage falls flat in the preliminary stage itself, since the very premise of the avowed objective – that marriage is institutional in nature – has been rejected. Thus, the objective sought to be achieved is not a legitimate purpose.

Even if one were to assume otherwise and deem ‘preservation of the institution of marriage’ to be a logical and legitimate purpose, it still has to be proven that there exists a rational nexus between the classification and the objective. The law is clear that the classification must rest on a difference which bears a fair and just relation to the object sought to be achieved by the classification.[13] The final argument rests on the point that there exists no rational nexus to the objective. The state’s argument can be summarised thus: the criminalisation of non-consensual sexual intercourse would lead to the destruction of the institution of marriage. It is to be noted that the operative and the underlying logic of this argument is that the institution of marriage will be destroyed if a significant part, content, constituent, or purpose of the marriage is criminalised. In this particular instance, that significant part is sexual relations within a marriage, which, if criminalised would destroy the institution of marriage. Thus, in simpler terms, this argument holds that if sexual relations – albeit non-consensual – within a marriage– are criminalised, the institution of marriage will be destroyed since sexual relations are a significant part of the marriage. However, the more forceful argument is that the State’s argument is specious since the link drawn by the state’s argument between criminalisation and destruction of institution of marriage is untenable. The Supreme Court, in the case of Saroj Rani v. Sudarshan Kumar,[14] has rejected the premise of the previous argument – that sexual intercourse forms the summum bonum of marriage. The Court by holding that sexual relations between a husband and his wife do not constitute the whole content of a marriage, and that remaining aspects of matrimonial consortium can’t be said to be wholly unsubstantial or of trivial character puts to rest the state’s argument in this case. Further, it can also be argued that there is no fair and just relation in this case, since the exception clearly does not take into the account physical and emotional trauma caused to the wife due to the commission of rape, possibly even repeatedly. And thus, there exists no rational nexus to the objective sought to be achieved.

In light of the aforementioned, it is clear that the exception in question fails the reasonable classification test, and thus, is violative of Article 14 of the Constitution and unconstitutional.

[1] (1979) 2 SCC 143, <https://indiankanoon.org/doc/1092711/>

[2] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 <https://indiankanoon.org/doc/168671544/>

[3] Joseph Shine v. Union of India, (2019) 3 SCC 39, <https://indiankanoon.org/doc/42184625/>

[4] (2014) 1 SCC 1, < https://indiankanoon.org/doc/58730926/>

[5] Lelenya Weintraub Siegel, The Marital Rape Exemption: Evolution to Extinction, 43 CLEV ST. L. REV. 351 (1995) < https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1610&context=clevstlrev>; see also Rebecca M. Ryan, The Sex Right: A Legal History of the Marital Rape Exemption, 20 LAW & SOCIAL INQUIRY No. 4 941, 948-954 (1995) < https://www.cambridge.org/core/journals/law-and-social-inquiry/article/sex-right-a-legal-history-of-the-marital-rape-exemption/15B4BC0F145FC41B6E53C25C69701FAE>

[6] §375, Indian Penal Code, No. 55, Indian Legislative Council, 1860, < https://indiankanoon.org/doc/623254/>

[7] Special Courts Bill, 1978, In Re, AIR 1979 SC 478, < https://indiankanoon.org/doc/1306191/>

[8] §304B, Indian Penal Code, No. 55, Indian Legislative Council, 1860, <https://indiankanoon.org/doc/653797/>

[9] §§354A-354D, Indian Penal Code, No. 55, Indian Legislative Council, 1860, <https://www.kaanoon.com/indian-law/ipc-354a/>

[10] §377, Indian Penal Code, No. 55, Indian Legislative Council, 1860, <https://indiankanoon.org/doc/1836974/>

[11] Deepak Sibal v. Punjab University, (1989) 2 SCC 145, <https://indiankanoon.org/doc/1461661/>

[12] (2017) 10 SCC 800, < https://indiankanoon.org/doc/87705010/>

[13] Special Courts Bill, 1978, In Re, AIR 1979 SC 478, < https://indiankanoon.org/doc/1306191/>

[14] (1984) 4 SCC 90, < https://indiankanoon.org/doc/1382895/>


ABOUT THE AUTHOR

Maladi Pranay

Photo

Maladi Pranay is a 2nd year law student, pursuing BA LLB (Hons.) at NALSAR University of Law, Hyderabad. He enjoys reading, and watching and playing cricket in his free time.

Posted in AI Law

Part II: So, who is liable?

In the previous post (Part I: Automation & Ethics:Applying Trolleyology), we discussed the introductory part to this article; the inherent ethical dilemma in the trolley problem and how that’s relevant to the current scenario of automated devices and self-driving cars. We discussed certain situations, including the Moral Machine by MIT, and our discussion was primarily ethical. In this post, we’ll carry forward the discussion from an ethical one to a legal one; discussing particular significant legal implications of the issues discussed beforehand.

We discussed ethics in the previous post and observed that people have varying stands when it comes to categorising what particularly is ethical and what is unethical. Despite this personal biases and difference of opinions, every society has certain ethical standards and it enforces the same by way of punishing the unethical. Theft is punished, trespassing is punished, defaming is punished; killing is punished, too, be it five workmen or a single one. Your being confused as to moral reasoning isn’t a valid excuse in the eyes of the law, and the law will punish what it ‘considers’ to be wrong.

But, what if AI commits a wrong? Whom to hold responsible when an artificially intelligent device or self-driving car causes some damages or injuries? Will the coder/designer/manufacturer be liable? Or the owner? Or the person who customised it? Big question, eh.

Legal personhood of AI

Examining the legal liability of AI, we can start by examining the possibilities of a legal personality of AI in the first place. Can an artificially intelligent device/robot be considered a juristic person in the eyes of law? If not, what would be its legal status, then? Can it still be treated merely as a movable property despite the fact that it has an intelligence and ability to learn things its own way?

The logical starting point would be to consider the probability of AI falling within the definition of mere property, like a watch or a remote controller. When it comes to products, the manufacturer is held liable by the principle of strict liability. However, with recent developments, there has been a shift in the judicial approach and liability is held only in cases where the defendant manufacturer/designer could reasonably foresee the damage or has failed to take reasonable care to avoid negligence.

Deducing on this line of reasoning, we can realise that the manufacturer or designer of an artificially intelligent being/device can rarely foresee the course of action its creation would take, and hence should be exempted from the strict liability – hence AI not falling strictly within the definition of a property per se.

The next point of examination would be whether AI could be a person – the option on the opposite end of the logical extremity. It requires little or no examination, in my opinion. Every one of us would agree on this point – that although artificially intelligent devices possess some degree of intelligence, they can in no way be considered ‘equivalent’ to humans.

So, AI doesn’t qualify for a human, and neither does it fall within the categorisation of a property. What’s left? A middle way: Romans invented this when confronted with the question as to whether slaves were humans. They didn’t want to confer upon the slaves complete personhood; but they also understood that slaves had their own minds and wouldn’t necessarily follow the master always. They invented this new legal status – ‘quasi-persons’.

On a sliding scale, with humans like you and I being on one end; and the non-living things like trees, pens, and pencils on the other; and the corporations, juristic persons falling somewhere in the middle; AI also finds a place somewhere in the middle. Where exactly in the middle? Well, that’s a difficult question to answer objectively. Some tests like the Legal Turing test have been proposed to address the same, but they somehow fail when it comes to practical applicability. The best bet would be to consider this issue on a case-to-case basis, depending upon the facts of the case like the intention of the designer, foreseeability of the damage et cetera.

Legal liability of AI

Now that we have an answer of sorts regarding the legal personhood of AI, we can proceed to discuss the legal liability of artificially intelligent devices. And Gabriel Hallevy from Israel makes the job easier for us with his work. A little background for non-law people here: criminal liability has two basic prerequisites: mens rea (the criminal intent, or the guilty mind) and actus reus (the criminal act)In other words, a man, or any person, can be said to be criminally liable only when both the elements are present – that is, he has criminal intent and commits an act to actualise that intent.

There can be a number of instances of various combinations of these elements, and each of those instances calls for different degree of liability. Of those many, Gabriel points out three possible scenarios that can be applicable to the AI; the first one being perpetrator via another. Perpetrator via another is the situation when a mentally deficient person or an animal, who inherently lacks mens rea and is hence innocent, commits a crime under the instructions of someone else. The instructor here is held liable. The second one is natural probable consequence which relies on the possibility that the programmer could naturally see the probable consequence and decides liability accordingly. The third one is direct liability, and this one is special: under this set of circumstances, the AI itself is liable – not the owner.

AI liability is no longer just a theoretical discussion or philosophical deliberation. Way back in 2008, the Indian judiciary faced the case of Avnish Bajaj v State (famously known as the Bazee.com case, wherein the courts recognised the automation involved in codes and software for which the owner could not be held liable. Time and again courts across the globe have come across cases where they have admitted that certain things aren’t ripe for a decision yet, unfortunately.

So, if the AI is liable in certain cases to the exclusion of all other stakeholders, including the owner himself, the next big question that arises is, whom to punish? Whom to give judgements to? Whom to accuse? The conventional theories of punishments obviously aren’t going to apply to AI – we can’t think of retribution or reform by punishing an AI system. So, whom to punish?

Well, nobody knows the answer for now.

This post first appeared here.


ABOUT THE AUTHOR

ANSHUMAN SAHOO

Seminar address

‘Passionate!’ That’s the only word he uses to describe himself. Questioning assumptions. Challenging hypocrisies. Making the planet a better place to live in. Can be found at www.anshumansahoo.com.

Posted in AI Law

Part I: Automation & Ethics – Applying Trolleyology

Consider the following situation:

You are a trolley driver, driving a trolley on a nice sunny day, when you notice five men working on the street in front of you, in your way. You blow the horn multiple times, but then notice they all are wearing earphones while working and hence can’t hear you approaching. Frustrated, you reach out to the brake, and to your shock, you find out that the brake isn’t working at all. Your mind goes blank, and frightened, just at the thought of what’s going to happen to the five workmen when the trolley hits them shortly.

However, suddenly you notice that there’s a small diversion just before the workmen whichto you can divert your trolley easily and quickly, thereby saving the five workmen! What a relief!

But the relief was only momentary – as you consider taking the diversion, you find out that the diversion isn’t all clear, either. There’s one man working thereon, and if you turn the steering to take the diversion, his death is certain.

There you sit, on your speeding trolley, with a failed brake, with two roads to choose from: one that will kill five men, and another that’ll kill one man, but with an active choice involved from your side.

What’ll you do?

The above hypothetical problem presents before us a millennia-old debate: the same as that between the pro-life and pro-right activists, that between the supporters and critics of utilitarianism, and also, that between the public interest and private rights, in some way. The question here, in one sense, tests utilitarianism in its extremity: by pushing the pleasure and pain element thereof to questions of survival and death, the death here being caused deliberately.

This particular hypothetical situation is a philosophical thought experiment introduced by Phillippa Foot in 1967 – and the two probable courses of action here signifies two different viewpoints of moral reasoning. One course of action, that saves the five men by killing one, subscribes to or signifies a ‘consequentialist moral reasoning’. However, there’s another viewpoint, called a ‘categorical moral reasoning’, that upholds that killing even a single person is wrong, no matter how grave the situation is which dictates such killing.

What would you do? Save the five workmen by diverting the trolley, right?

Statistically, when asked the above question, people tend to subscribe to a consequentialist moral reasoning, and go for saving five lives at the cost of one life. However, when the above hypothetical situation is somewhat modified to represent another situation where the required degree of active involvement is significantly more, people do seem to change their mind:

Suppose you’re a doctor, specialising in organ transplantation. One day, five road-accident victims were sent to you who’re in immediate need of organ transplantation. You have everything, but some healthy organs which can be transplanted. All of the five persons need five different organs: one needs a liver, another a heart, another a kidney, and so on.

While pondering over how to arrange five healthy organs in such a short span of time, you suddenly remember you have a healthy person sitting in the visiting room who just came in for a routine check-up.

Would you kill the person in the visiting room so as to use his organs to save five persons?

The above variation of the trolley problem was introduced by Judith Jarvis Thomson in 1985, and makes clear the distinction between the two choices: the point that the choice is NOT between killing five and killing one, but between ‘letting five die’ and ‘killing one’. And here it becomes difficult to stick to the consequentialist moral reasoning, for most of the people, statistically speaking – because even though we have this notion of higher good being the right thing to do, at the same time, on the other hand, we also have this deep rooted conception that there are certain basic inalienable rights of a human being that cannot be, under any circumstance(s), snatched away from him.

The above set of problems highlighting ethical dilemmas in decision making are informally, and loosely, termed as ‘trolleyology’, or the ‘trolley problem’, in general. Although originally a philosophical thought experiment, it finds extensive applications in number of cases, starting from court room situations, to policy drafting and legislation, to the designing of automated vehicles.

The trolley problem poses a specific significance to the automation industry, inter alia. Automation, by its very nature, requires things to be predetermined – pre-coded by way of predefined algorithms. And a predefined algorithm means and implies a predefined course of action – which directly translates to the requirement of sticking to a precise ethical code. And sticking to an ethical code, in a programmed way, isn’t really easy when it comes to the real-world situations. What should self-driving cars do when having a choice to bump into an old man and a young man? Five people or one bystander? Traffic rules or car safety? These are some of the difficult choices that the AI designers are faced with while designing automated devices.

Some MIT students and academicians came forward recently to design a simulated platform for this issue, and the result was the ‘Moral Machine’. Moral Machine presented before the users a set of hypothetical situations which represented ethical dilemma and required them to make choices – and the result was further distracting.

The opinion of the users was as diverse as it was 2000 years ago.

People from various backgrounds went for various choices – people from eastern countries majorly went for saving the innocent, people from western and American countries went for inaction, and people from Latin American countries went for saving the young and potent. People often went for saving humans over animals, and lives over property. Social sensitisation played a role, but not so uniformly.

The point is, individual opinion varies a great deal when it comes to making ethical choices – choosing between holding on and letting go – deliberating over the meaning and purpose of life and human action. Does that mean designing artificial intelligence shouldn’t have a uniform guide of conduct as well? Should AI and automation ethics be allowed to vary from place to place and society to society as well? And importantly, in this era of globalisation, is it even possible to afford such differences when geographical and societal difference has been proved to be nothing but an illusion merely.

This particular debate, between that of consequentialism and categorical moral reasoning, has been alive since Greek times, probably – and we still aren’t over it. The fact that this debate has persisted so long definitely signifies its level of difficulty – but more than that, it signifies its continued relevance for the society. And now in the wake of automated devices and artificially intelligent computers – and the multitude of policy and legal changes it calls for, it’s relevant more than ever before.

Read the second part here.

This post first appeared here.


ABOUT THE AUTHOR

ANSHUMAN SAHOO

Seminar address

‘Passionate!’ That’s the only word he uses to describe himself. Questioning assumptions. Challenging hypocrisies. Making the planet a better place to live in. Can be found at www.anshumansahoo.com.

Posted in Others

Debunking Myths About Criminal Lawyers

While the media frequently highlights the importance of protecting minority groups, it still seems acceptable in our culture to denigrate criminal defence attorneys. Apparently, although individuals of particular religions, races, ethnicities, sexual orientations, gender identities or political views are perceived as worthy of protection, criminal defence lawyers are still fair game, targeted in jokes and cartoons, on talk shows and at private and public gatherings. Let’s set the record straight.

The Mythology of Criminal Defense Lawyers

The following myths are fairly persuasive which is bad on at least two fronts: (1) criminal defence lawyers suffer unfairly tarnished reputations and do not receive the respect they deserve; and (2) accused and arrested individuals feel that they are being forced to deal with unsavoury characters they should not trust when they must consult with criminal defence attorneys. The following four myths about criminal defence lawyers lay the foundation for many other misconceptions.

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  1. Criminal Defense Lawyers Don’t Care About the Guilt or Innocence of Their Clients

    Criminal defence attorneys, unlike other members of the judicial system, serve their clients’ interest. Because they represent those accused of crimes, they review the government’s evidence, gather their own evidence if needed, determine its admissibility and, after a thorough investigation of the facts, determine – based on their experience – whether the government can prove their client committed the crime beyond a reasonable doubt. If the government cannot, the lawyer fights with all their power and knowledge to bring that reasonable doubt to the attention of the judge or jury.

    It’s not the defence lawyers’ job to determine guilt or innocence. Do we often have a feeling one way or the other, probably? However, any experienced defence attorney has at some point been wrong despite a strong feeling one way or the other. So you learn to question that initial instinct and not let it affect your job – which is doing everything possible to meet or exceed your client’s goals.

    What also often happens is the accused being overcharged by the government. In those instances, guilt may not be in question, but guilt as to a different, often less serious charge. Don’t forget, the criminal defence lawyers’ job is to defend their clients as ardently as they can, whatever their own personal opinion of the case. Our justice system is designed to let only the judge or jury make the final decision.

  2. Criminal Defense Attorneys Are Liars

    Talented criminal defence attorneys learn to phrase facts persuasively enough to sow doubt in the minds of judge or jury. The truth has a way of rising to the surface, however, so lying is not only unethical but unlikely to be a successful tactic. Good criminal defence attorneys are well-schooled in raising questions. Through carefully worded suggestions or propositions regarding the conditions of the arrest, the validity and purity of the evidence presented, and the possible misinterpretation of motive or need, highly skilled criminal defence attorneys have the verbal acuity to navigate the courtroom without having to resort to lying. Everyone should remember that in the United State, any accused is innocent until proven guilty in a court of law – not the other way around.

  3. Criminal Defense Lawyers Hide Evidence or Use Manufactured Evidence

    Those who believe that criminal defence attorneys routinely make up actions or verbiage to win their clients’ freedom are usually guilty of watching too many courtroom dramas. The truth is that criminal defence attorneys work exceptionally hard, examining all available data with a metaphoric microscope to find details that will aid in a positive interpretation of their clients’ actions. They have nothing to win and everything to lose by introducing false evidence that could ruin their reputation and result in disbarment and/or a prison sentence.

  4. Criminal Defense Lawyers Are Only Focused on Making Money

    There is a pervasive myth in our culture that criminal defence lawyers work at this painstaking, emotionally wearing job only because they are looking for financial reward. For this reason, a great many individuals believe that you need not seek out a criminal defence attorney if you find yourself in trouble with the law — that you might as well hire a general practice attorney or a public defender. The latter, after all, presents an advantage to you because he or she charges no fee.

Nevertheless, when your life is on the line — reputation, financial stability, freedom — you want to choose the attorney with the very best chance of winning your case. No matter how competent a general practice attorney may be, he or she only works part-time on criminal defence. Like other specialists, criminal defence lawyers become more proficient by practising exclusively in their area of specialization.

This is why engaging the services of someone who is laser-focused on criminal defence is going to be savvier, as well as more experienced in the discipline than someone who spends a large percentage of his/her time on civil litigation, bankruptcy law, or estate planning. By working at criminal defence law exclusively, a criminal defence attorney will have more finely honed skills in this area than a lawyer who plays the field.

Give yourself the Best Chance of a Successful Outcome – Make Sure to Use a Sharp Criminal Defense Attorney

It is important to remember that when your career, your freedom, and your life as you know it hangs in the balance, there is no substitute for having an accomplished criminal defence attorney at your side. You don’t want to depend on someone who occasionally works on criminal defence or someone who is fresh out of law school. As far as paying for the best criminal representation possible, there is always a way to arrange a payment plan or financing. Don’t short-change yourself in one of the most significant decisions you will ever make. The stakes are too high to settle for the store brand.


ABOUT THE AUTHOR

Antonio F. Valiente

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After his graduation from American University’s Washington College of Law, Miami attorney Antonio F. Valiente, Esq. began his legal career at the Miami-Dade Public Defender’s Office. There, he gained valuable insight and extensive experience over the course of six+ years. Between his time at the Public Defender’s Office & since founding Valiente Law, he’s tried close to 50 felony jury trials as lead counsel, dozens of misdemeanor jury trials, taken over one thousand depositions, & dozens of juvenile trials/adjudicatory hearings. Mr. Valiente’s experience encompasses everything from minor traffic-related misdemeanors to serious first-degree murder charges. Since 2015, Mr. Valiente has expanded his practice to handle all types of family law matters – from divorce and child custody cases to paternity and same-sex adoptions. Having the opportunity to work with & learn from some of the best and most experienced family law attorneys in the State, Mr. Valiente now provides his family law clients with the same excellent representation he is known for providing his client’s accused of state & federal criminal offenses.

Posted in Opinion

Intervention of Supreme Court in Religious Matters: A Debate Against the Motion

Well, what will be the consequences if the Supreme Court passes a judgment restricting the Digambar Jain Monks from practising the nudity or the Hindu Naga Sadhus from travelling anywhere without any cloth?

Section 294 of Indian Penal Code, 1860 restricts the obscenity in public place by calling it an annoyance to others. But at the very same time, the Constitution of India under Article 26 allows the citizen to manage its own religious matters. Now, the same constitution in its Article 13 also promises that laws inconsistent with or in derogation of fundamental rights shall to a certain extent, be declared as Void. When we analyse this legal triangle, this can be understood that fundamental rights are higher than other statutory laws and nobody can stop one from practising them; and that is why we have the full liberty to practice and manage our religious rights without the intervention of any institution or body and that’s a principle held sacrosanct within the Indian constitutional framework.

But yes, in spite of all the rules and principles, the Supreme Court and its cousins, ‘The High Courts’, tried to intervene in the religious matters – and they have passed orders and judgments to that effect also. The judgements have no doubt been went on to be referred to as landmark ones, but the consequences and implications of the judgements have been more significant (and ‘landmark’) than the judgements themselves, interestingly!

In the year 2015, the Hon’ble Rajasthan High Court in the case of Nikhil Soni V. Union of India[1] declared the Jain process of achieving salvation ‘The Santhara’ as illegal and declared it as equal to suicide. Later, the judgment raised silent protests all across the globe from the Jain community and the followers went on ‘silent marches’ in their respective cities. The unacceptability was not from the end of society only, but it was also seconded by the democrats and bureaucrats as well. The judgment was widely criticized and was believed that the judicial mind was not applied.

The bench was apparently ignorant of the historical beliefs and the reasoning behind it. When the matter was appealed in the Apex Court, the judgment was reversed and a stay was imposed. This incident showed that the judgment was a landmark one, but the response of society to it was more than just a milestone – that religious interference is not acceptable by society.

The alteration in the religious process will not allow a religion to be religious anymore. Religion works on faith. Court works on the judicial mind. In order to justify the faith, the mind will be lost in the oblivion, and judgments will no more be justified. And anything which is unjustified is something unacceptable for the society. Can a law still be effective when it’s not at all acceptable to the very society it intends to control?

A very recent example can be taken of the case of Indian Young Lawyers Association & Ors. V. The State of Kerala & Ors[2], better known as the Sabrimala Temple Case. The judgment of the case has given the women’s a right to enter into the temples but at the same time, it has questioned the fundamental belief of the Lord Ayyappa himself. Lord Ayyappa, according to local beliefs, is considered a lord because he practised celibacy – the determination brought him the stature of a God. He distanced himself from women. That is why if women really believe in him then they must not go to him or not made her viewing to him. Their attention to him will disrespect his principles. Staying far from him is the absolute faith for women. This is what the scripts say. Now, once again the Supreme Court’s judicial mind equated the entry of women to men but attracted the hatred against the judgment nationwide.

Now, the matter is under review petition as the whole of society is protesting against this judgment. That is why I say ‘Judicial mind cannot go with faith’. Ironically, the ratio of judgment was 4:1, 4 males and 1 female, the only lady judge in the bench Justice Indu Malhotra agreed that women must not enter into Sabrimala temple because she understood the gravity of this nuisance. She quoted “To entertain PILs challenging religious practices followed by any group, sect or denomination could cause serious damage to the constitutional and secular fabric of this country”. And the reasoning behind this given by her in the judgment is the ‘applicability of Article 25’.

Going a little back, we come to the case of Shayara Bano V. Union of India[3]. The SC held Triple Talaq unconstitutional. Now it is important to understand that the concept of Talaq-Ul-Biddat was introduced for the betterment of society itself. To resolve the disputed marriage for the sake of the troubled couples in an efficient way was the objective of this system. But again, the Supreme Court applied its judicial mind and as a consequence, the step was struck down. But still, if I quote the records then the Islamic Women are also protesting against this decision as the Hon’ble Congressman from Hyderabad Mr. Owaisi quoted this statement in the Lok Sabha himself.

Do we still think that SC will be able to pass a practical judgment which will bring tomorrow when Shankaracharyas will be appointed democratically? Will there be any possibility that the biases on the basis of different grounds in religious matters will come to an end through the judgments?

  • Jains do not allow women to touch idols during religious ceremonies.
  • Hazi Ali Dargah allows women in the tomb of Pir Hazi Ali Shah Bhukhari but only in December.
  • Patbausi Satra Temple in Assam does not allow menstruating women.
  • Lord Kartikey Temple of Haryana does not allow women.
  • Nizamuddin Dargah has certain restrictions for women.
  • Shree Padmanbhaswamy Temple has certain attire for women.
  • Jama Masjid Delhi does not allow women after sunset.
  • Ranakpur Temple Rajasthan does not allow menstruating temple.
  • In Kashi Vishwanath, only hindus are allowed.
  • In Puri temple, only hindus are allowed.
  • In Bhairvi Temple, men are not allowed.
  • This is a very small list of instances which are happening across the nation and the judgments won’t be able to do anything instead of hurting societal faith, religious beliefs and the mythical concepts. We cannot apply Law Everywhere.

This does not mean that Sati Pratha or Johar can be resumed, those were evil tactics and were also stopped by society but yes, SC never adjudicated that matter. Faith can be countered by faith only. Our constitution is about 70 years old, our laws are made by colonial rulers who followed west in their culture. Those laws cannot go with our society because we are not practitioners of westernization. The discipline behind the laws does not match with the roots of our nation.

The law derives from society, society follow morals and religion tells us about morality. Laws are the results of holy scripts and these legal bodies cannot interfere with the religious matters.

There are other conflicts left to deal with like UCC, Section 66A, CBI and etc. but intervention in religious matters will only raise chaos because the judicial mind cannot go with faith.

[1] Civil Writ Petition No. 7414/2006. Decided by Sunil Ambwani, C.J. and Veerender Singh Siradhana, J.

[2] Writ Petition (Civil) No. 373 Of 2006

[3] Writ Petition (C) No. 118 of 2016


ABOUT THE AUTHOR

Anchit Jain

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Anchit Jain is pursuing law from the ICFAI University Dehradun. He is a third-year law student in B.B.A. LL.B (Hons.). He is interested in ADR, RTI and Consumer Laws. Debating, Dramatics and Chess are the hobbies he carries with him.