Analysing the Judicial Development of Privacy Law

Right to Privacy was never incorporated in the Indian Constitution nor has been provided by any Ordinary law in India. The Judicial interpretations, as well as the development of the law, has led to the emergence of this right, which remains ambiguous till date. Privacy still remains as subjective as it can be comprehended by one unless a law governs the same, which is highly unlikely as the Government is unwilling to take a step ahead. The cases portray shift of the judiciary in striking out Privacy as any right to providing Right to Privacy, which is inherent in the Constitution.

The Judiciary had initially looked through the Indian Constitution in a very rigid and  inflexible manner. The M.P. Sharma case[1] was decided merely by considering the American law and decision of the Constituent Assembly, without taking into account any other considerations whatsoever. Whereas the Kharak Singh case[2] went on to state that even late night periodical visits in house and unreasonable surveillance do not infringe any Constitutional rights and amount to the violation of Privacy ipso facto.

Both these decided cases can be clearly inferred to be based on the principles laid down in A.K.Gopalan case[3]. The Judiciary has not endeavoured at all to innovate or apply principles of Article 19 and 21 taken together, effectively. If it were done so, Right to Privacy would have been effortlessly recognised as an inherent Fundamental Right post-independence, subject to reasonable restrictions.

The later case of R.M.Malkani[4] laid down a bad law that phone tapping is not violative of Fundamental Rights merely because the communication cannot be distorted in any manner, which has been severely criticised. This was overruled in the much celebrated PUCL case[5] which guaranteed phone conversations as a Right to Privacy. Right to Privacy has been strengthened in the post-liberalisation era.

In a similar state, Rajagopal[6] and Gobind[7] case held that Privacy was intrinsic to Article 21 of the Indian Constitution but was not at all absolute and cannot be claimed without passing the State and Public interest test and also by public officials in the discharge of official duties. By this time, privacy had assumed an inherent role in our fundamental rights jurisprudence that helped us lead a dignified life without fearing surveillance.

The content of the constitutional right to privacy and its limitations have proceeded on a case to case basis, each precedent seeking to build upon and follow the previous formulations. The foundation of Right to Privacy rests upon M.P.Sharma, Kharak Singh and Gobind cases, further contributed by Rajagopal, PUCL, Selvi and ABC cases. The right to privacy has been traced in the decisions which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21 and the freedoms set out in Article 19. The Right to Privacy, partially, had been granted due to changing needs and circumstances and being the need of the hour.

The recent judgement has laid down that Right to Privacy is a Fundamental Rights inherent in Article 21 of the Constitution and includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.[8] It protects individual autonomy and power of individuals to make decisions for their life.

[1] (1954) AIR 300.

[2] (1963) AIR 1295.

[3] (1950) AIR 27.

[4] (1973) 1 SCC 471.

[5] (1997) 1 SCC 301.

[6] (1994) 6 SCC 632.

[7] (1975) 2 SCC 148.

[8] K.S.Puttaswamy v. Union of India, Writ Petition (Civil) No. 494 of 2012 (Supreme Court, 24/08/2017).


ABOUT THE AUTHOR

Devansh Saraswat

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Devansh Saraswat is a second-year BBA LLB student at Gujarat National Law University. Academy sound and possessing a keen interest in writing and being an avid researcher, he has presented papers on diverse issues in various National and International Conferences, and as well grabbed publications in various journals. He wishes to learn the law to transform the society in whatever way possible.

 

 

The Biggest Contribution of Legal Issues to Humanity

In the words of the legendary physicist, Albert Einstein “The strength of the Constitution lies entirely in the determination of each citizen to defend it”. It is us, the mere human souls of this world, that need to be the sole proprietor of every law binding constitution and its legitimacy. Though the government bodies are elected and run for redeeming the nation of its chaotic grievances, the judicial system is the neural network that maintains the livelihood of any living territory. Albeit the world’s partition on the evolutionary dogma of the origin of life, the unanimity for honoring the judicial system remains engraved in everyone’s mind and soul.

  • Social Stigmas

India has been honored with its due respect since the early 90s when the nation welcomed the digital technology era under the heartfelt guidance of Late Rajeev Gandhi. Since then the country has witnessed an eye-popping statistics drop in various societal discriminations as well. India was rendered with the orthodox mindset of the cases like untouchability, caste-ism, gender differentiation, purging of minorities, & child marriage since before the time of independence.

The issue of untouchability and caste-ism was so pronounced and the practicing results were so inhumane that the Father of the Nation-Mahatma Gandhi- came up with the term Harijan for the socially oppressed class which plainly translated to ‘God’s fellow’. Despite the life-consuming efforts, this stereotypical thinking prevailed amongst the countrymen and it was only in 1955 that the Untouchability Offenses Act was passed for safeguarding the civil rights of the socially oppressed class of India.

Battling the social stigma on somewhat the same ground, the Indian transgender community managed to acquire their deserving status in the society following the 2014 Supreme Court verdict of identifying the kinnar or hijra as the third gender section of India.

  • Marriage & Family

The legitimacy regarding marriage and family growth has remained yet another challenge for the nation and the country is still recovering from the regularly reported marital/family mishaps. Starting from the legal marriage age to the domestic violence cases, the judicial system has been acting beyond its enabled capacities & resources to ensure a healthy and prosperous marital/individual life to the Indians.

Following the illegitimate child marriage practices and subsequent exploitation of the underage children led the government and many activists to speak up for this evil ceremony. Following the marriage acts of 1955, the judiciaries of India specified the legal marriage for the bride and the groom to prevent the violation of child rights.

In addition, to rid the society of other marriage and family mishaps, various laws and acts subdued under the Indian Penal Code liberalized a quarter of women’s right with the Protection of Women from Domestic Violence Act 2005. The year of 2017 witnessed a historical reform where the legalization of the Triple Talaq Bill helped a huge chunk of the Muslim minority population to exhale a sigh of relief.

  • Child Protection Rights

Preventing the naïve mind and soul of the children to shape their life into a better future, the Child Labor Act of 1986 brought a ray of hope for millions of exploited souls across the nation. The bill was aimed at providing a better living platform to the underage section of the society, preventing them from various inhumane treatments and wiping out the child labor practice completely. Following the age limit constraints of the act, the bill was amended in the year 2016 as the Child and Adolescent Labor Act to safeguard the rights of individuals ranging from 14-18 years.

The POCSO (Protection of Children from Sexual Abuse Offence) Act 2012 was formulated in order to address the issue of child abuse and sexual exploitation with strict action course. The past decade has witnessed numerous inhuman acts of child molestation and murder cases following which the judicial system has worked breathlessly under the IPC & POCSO Acts to bring the sexual predators under the law enforcement custody and serve them with the deserved punishment.

  • International Relations

The international relations law is probably the most evolving law to be acted upon on a daily basis. Be it the trade affairs or the citizenship provident or even the medical treatment cases, international relations play an omnipotent role for each nation with their latent yet pronounced economic influence. No country can run a solo business in this era of globalization and prosper with at the same time. North Korea- potential in scientific advancements and cultural heritage could have had one of the most prosperous growth rates in the world. But the solidarity and the ignorance of the nation’s governing bodies have made the major economic forums of the world to cut its ties bringing the citizen’s life almost to a standstill.

Thankfully India is blessed with some of the most efficient trade and international relation laws in its constitution for the nation to maintain pleasant work-relationship with its peers. The GATT (General Agreement on Tariff and Trade, 1947) & the World Trade Organization trade arrangement are the major two players of the international trade market in India.

Be it the BC timeline or the AD running period, history has witnessed the very law establishment and its practice outcomes from ancient Romanians to the modern AI creators. Whether it is the Babylonian laws or the Draconian constitution, the legal system has been evolving as per the needs and priorities of the nation with the whole and sole aim of serving justice. Although the validity and moral code of conduct of the ancient constitutional laws are debatable, it is established beyond the shadow of a doubt that the existence of legal system has been reigning since the beginning of the times. From nature to nurture, every element of this world follows a centralized system.


ABOUT THE AUTHOR

Crystal J. Pace

Happy businesswoman with colleagues in the background

Crystal J. Pace is a Professional legal writer worked with many companies. She is currently associated with West Coast Trial Lawyers, Car Injury Law Firms. She loves to share her views regarding law.

Personal Guarantee and the issue of Moratorium under Insolvency and Bankruptcy Code, 2016

Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘Code’) was enacted with the aim of consolidating multiple legislations dealing with insolvency and bankruptcy and ensuring time-bound adjudication on the subject. Since the enactment of the Code, courts have made important rulings on a plethora of issues under the Code. Recently, a conflict of opinion has surfaced between the NCLT and the Allahabad High Court on the applicability of moratorium under section 14 of the Code vis-a-vis personal guarantee given by the guarantors of the corporate debtor.

Moratorium is an authorization provided to the debtors to postpone payment of debt. According to section 14 of the Code, it is a period during which institution or continuation of suits, execution of any decree or order, or alienation or transfer of the assets of the corporate debtor is prohibited.

Recently, in the case of Sanjeev Shriya v. State Bank of India[1], the Allahabad High Court ruled on this issue. In the concerned case, the directors of the company (corporate debtor) were guarantors against the loan taken by the company from the State Bank of India. After the declaration of the company as ‘sick’ by the Board for Industrial & Financial Reconstruction, SBI approached the Debt Recovery Tribunal (‘DRT’) for the recovery of the due amount. Following this, the company approached the National Company Law Tribunal (‘NCLT’) under section 10 of the Code for the initiation of corporate insolvency resolution process. The NCLT admitted its application and declared moratorium against the Company. Consequently, the directors approached the DRT for the stay of recovery proceedings. The DRT by its order granted stay on proceedings against the corporate debtor but not against the guarantors (petitioners). This order was, therefore, challenged by the petitioners in the High Court on the ground of a lack of jurisdiction of the DRT.

The issue, in this case, was whether the declaration of moratorium under section 14 of the Code vis-a-vis the Company bars proceedings against guarantors under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

After analyzing the arguments of both sides, the High Court ruled that since the proceedings are in a fluid stage and the liability of both guarantor and the corporate debtor has not yet crystallized, parallel proceedings in different jurisdictions must be discouraged in order to avoid complexity. The Court considered proceedings in the DRT to be without jurisdiction as once the proceedings have commenced under the Code and moratorium is applicable, the proceedings against the guarantors is per se bad.

This decision of the High Court in Sanjeev Shriya stands in stark contrast to the earlier decisions of NCLTs. One such decision was taken in Alpha and Omega Diagnostics (India) Ltd. v. Asset Reconstruction Company of India Ltd[2] wherein, personal property of the promoters was given as security against the loan taken by the Corporate Debtor. The issue was whether moratorium under the Code would be applicable on the property of the promoters or not. The Tribunal placed reliance on section 14(1)(c) of the Code, which states that the adjudicating authority shall declare moratorium for prohibiting “any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.” It held that the use of the word “its” is of significance in that sub-section. It took recourse to a strict interpretation of the statute and ruled that the corporate debtor has applied for “its” own insolvency resolution proceedings and the assets would only include the assets of the corporate debtor and not of any third-party including the promoters.

Another such decision was taken by the NCLT (Delhi) in the case of Schweitzer Systemtek India Pvt. Ltd. v. Pheonix ARC Pvt. Ltd[3] and was later upheld by the National Company Law Appellate Tribunal (‘NCLAT’). As in the above-mentioned case, the issue here too was whether personal property given as security to the creditor bank would fall within the scope of moratorium or not. The tribunal ruled that recognized canons of interpretation must be used in the present case as the language of the Act is so simple that no other form of interpretation is necessary. The tribunals followed the reasoning of Asset Reconstruction Company Case and held that the use of the word “its” in section 10 relates to the property of the Corporate Debtor. The section talks about books of accounts of the corporate debtor and under no circumstance can such use of the word “its” be expanded to bring within its scope property or books of accounts of the guarantor or any third party.

While the opinion of the legal authorities is divided on the issue, it appears that the purposive approach taken by the Allahabad High Court holds good. The decision was taken while keeping in mind the object and motive behind the enactment of the Code. If the property of the guarantor is excluded from the scope of moratorium, then it could potentially affect the financial position of the corporate debtor once the creditor satisfies its debts out of the property of the guarantor. Moreover, it will cause complexity in the corporate insolvency resolution process and consequent resolution plan that the Committee of Creditors (“COC”) may formulate under the Code. In order to avoid this uncertainty, it seems pragmatic to not conduct proceedings in two distinct forums simultaneously. It, thus, becomes imperative that the ambiguity around this legal issue is settled by the appropriate authority conclusively.

[1]2017(9)ADJ 723.

[2]Company Appeal (AT) (Insolvency) No. 116 of 2017.

[3][2017]140 CLA 128.


ABOUT THE AUTHOR

Amrit Singh

Amrit Singh

Amrit Singh is a fourth-year student of the West Bengal National University of Juridical Sciences. He is deeply interested in Corporate law and likes to follow the developments in the area closely.

Megha Tiwari

Megha Tiwari

Megha Tiwari is a fourth-year student of the West Bengal National University of Juridical Sciences. She is going to become a corporate lawyer and likes to write about the subject in her free time.

The Constitutional Vision of Inclusive Growth: Challenges and Strategies

The Indian Society has suffered from the menaces of social and economic inequalities, caste-based discrimination, and purging of minorities for centuries. But the nation’s independence struggle and its ultimate triumph remains the greatest testimony to the world of the power of a people united in the spirit of nationalism.

The Constitution of independent India is a manifestation of the ideals of liberty, equality and fraternity. An inclusive society was the vision of the makers of our constitution. But even after independence the perils of inequality and discrimination lingered on. The post-independence era witnessed the re-emergence of these vices which had subsided during the independence struggle. Although attempts at tackling these were made in the form of social reform legislations, economic and social disparities continue to plague the society.

Over the past two decades, India has made a successful transition from an economy that was growing at best at a moderate rate to one that has become one of the principal drivers of the global economy in the post-crisis phase. The GDP growth rate, the investment rate and the savings rate have steadily increased.

The charm of high growth is, however, obliterated by the fact that the distribution of benefits arising from the growth dynamics is highly skewed. Large sections of the population are precluded from partaking in the benefits of the economic growth which is evidenced by the rising economic disparities.

The lack of inclusion has two broad dimensions, economic and social, which analysts have pointed out, mutually reinforce each other. The most obvious manifestations of economic imbalances are the high incidences of poverty, wide income inequality and high rates of unemployment. These can be attributed to the inequality in access to essential services, particularly those related to education and health, which in turn is the result of social exclusion, “the process through which individuals or groups are wholly or partially excluded from full participation in the society in which they live”[1].

Exclusion is thus both the cause and the effect. It is antithetic to ‘inclusive growth’, which is the “process that yields broad‐based benefits and ensures quality of opportunity for all”[2] as envisioned in the constitution particularly in the preamble, in chapter III and in the Directive Principles of State Policy.  Inclusive growth is to be primarily achieved at the levels of Reduction Of Poverty, Reducing Unemployment, Social Justice And Empowerment, Environmental Sustainability, Gender Equity, Access To Essential Services and Governance.

Basely et el (2007) considers inclusive growth as the “growth that has a high elasticity of poverty reduction”, i.e., higher reduction in poverty per unit of growth. The ability to generate an adequate number of productive employment opportunities will be a major factor on which the inclusiveness of growth will be judged. Rapid growth focused on labour-intensive industries and small and middle enterprises will create employment opportunities in the manufacturing and services sectors. The ability to create jobs will be enhanced by greater labour flexibility which may require some changes in labour laws.

Access to essential services is an indispensable aspect of equality of opportunity. Copious theoretical studies have demonstrated that the idea that both the pace and pattern of growth are critical to accomplish a high, sustainable growth record, as well as poverty reduction, is consistent with the findings in the Growth Report, Strategies for Sustained Growth and Inclusive Development[3].

The vision of inclusiveness must be taken beyond the conventional objective of poverty alleviation to embrace equality of opportunity, as well as economic and social mobility for all sections of society, with greater focus on  SCs, STs, OBCs, minorities and women. There must be equality of opportunity to all with freedom and dignity, and without social or political obstacles.

The Commission on Growth and Development, in the report found that inclusiveness, a concept that incorporates equity, equality of opportunity, and protection in market and employment transitions is a vital element of any successful growth strategy. The Commission regards systematic inequality of opportunity “toxic” as it will disturb the growth process through political means or conflict.

Another strategy of achieving inclusive growth must be one that not only preserves and maintains natural resources, but also provides equitable access to all.  This requires international co-operation to develop forms of burden sharing for alleviation as well as adaptation that are just and equitable to all nations.

Recognizing the depth of the problem of social exclusion based on gender, an integrated approach towards gender equity is also the need of the hour. Identifying and rectifying the flaws and drawbacks in the previous schemes and programs and improving the governmental machinery for implementation and expansion of strategies for inclusive growth through is the most crucial aspect in our stride towards inclusive growth. The need of the hour, thus, is a comprehensive and balanced approach in achieving inclusive growth and distributive justice as part of it.

[1] 1 11 European Foundation for the Improvement of Living and Working Conditions (1995), “Public Welfare Services and Social Exclusion: The Development of Consumer Oriented Initiatives in the European Union”, The Foundation,Dublin, quoted by De Haan, Arjan, and Simon Maxwell (1998), “Poverty and social exclusion in North and South”,IDS Bulletin, 29 (1): 1‐9

[2] 2 7 Govt of India (2008), “Inclusive Growth: Vision and Strategy”, Eleventh Five Year Plan, Planning Commission, New Delhi, p. 2.

[3] Commission on Growth and Development, 2008


ABOUT THE AUTHOR

Treesa Ann Benny

2018-01-12_09-57-08

Treesa Ann Benny is a third-year student pursuing B.A LL.B(Hons.) course at the National University of Advanced Legal Studies, Kochi. She enjoys writing, particularly on contemporary issues. She finds legal research extremely interesting as well as rewarding and has a particular liking for corporate and constitutional law. She has interned at various law firms in the country, participated in various moot courts, essay-writing and policy-framing competitions and authored several law research papers. She is a volunteer at the Kerala chapter of Increasing Diversity by Increasing Access (IDIA). She is a music lover and also enjoys cooking.

 

Legal Issues Surrounding Cloud Computing

With the explosive growth of innovations in the Information Technology industry, the Legal provisions are currently lagging behind and desperately looking for ways to cope up with the never-seen-before advancements. Cloud computing, being one of such recent advancements, have raised a number of legal issues including privacy and data security, contracting issues, issues relating to the location of the data, and business considerations.

The abovementioned issues are the primary ones faced by almost all the nations across the globe. However, when it comes to the Indian scenario, a number of additional complicated issues are faced by India owing to lack of awareness and lack of resources. With the ‘Digital India’ initiative in the news, it is obvious that more and more individuals and organisations will be using online services and infrastructure via the Cloud in the near future; and it is, therefore, necessary to analyse our position thereon and discuss whether our legal system is ready for such a revolutionary change.

The legal issues that frequently arise in the cloud are wide-ranging. However, attempting a broad generalisation, mainly four types of issues arise therein:

  1. Privacy of data and data security
  2. Issues relating to contractual relation between the cloud service provider and the customer
  3. Complex jurisdictional issues, or issues relating to the location of the data and the set of laws applicable
  4. Commercial as well as business considerations

At the outset, it may very well be clarified that though cloud computing enables the customer access to computing, networking, storage resources just like traditional outsourcing services and Application Service Providers (ASPs), it has a legal nature quite different from these two owing to its distinctive features like ‘on-demand access’, and ‘unit-based pricing’ (pay-per-use).

Privacy and data security issues:

Seemingly, the main privacy/data security issue relating to the cloud is ‘data breach’. Data breach may be in the generic sense defined as the loss of unencrypted electronically stored personal information (Buyya, Broberg, & Goscinski, 2015). A data breach can cause loss to both the provider as well as the customer in numerous ways; with identity theft and chances of debit/credit card fraud to the customer, and financial harm, loss of customer, loss of reputation, potential lawsuits et cetera for the provider.

The American law requires data breach notification to be issued of affected persons in such case of a data breach. Almost all the states in the United States now require notification of affected persons upon the occurrence of a data breach.

Talking about the Indian scenario, most of the providers are seen to attempt at lessening their risk liability in case of a data breach scenario. However, as more sensitive information is entering the cloud every passing day, businesses and corporations have started negotiating the contracts so as to insert terms that expand the contractual obligations of the providers.

Problem arises when the data is subject to more than one jurisdictions, and the jurisdictions have different laws regarding data privacy. For example, the European Union Data Privacy Directive clearly states that ‘Data cannot leave the EU unless it goes to a country that ensures an “adequate level of protection”.’ Now, although such statement makes the EU provisions easily enforceable, but it restricts the data movement thereby reducing the data efficiency.

Contracting Issues:

Clearly, licensing agreements are fundamentally different from Service agreements. Cloud essentially, in all its permutations (IaaS, PaaS, SaaS), is a service, and therefore is governed by a Service agreement instead of a Licensing agreement.

However, the main issue regarding the Cloud Service agreements is ‘contract of adhesion’. Owing to the limited expansion of Cloud Services in India, most of the time the ‘Click-wrap agreement’ model is used, causing the contract to be one of the contract of adhesion. It leaves no or little scope for negotiation on the part of the user/customer.

With the expansion of the Cloud computing, gradually the negotiation power of the large corporation will cause the Cloud Contracts to be standard and negotiated ones. However, at an individual level, this is still a far destination.

Legal provisions clearly cannot force the cloud providers to have a negotiating session with each and every customer. However, legal provisions may be made to ensure that the liability and risk responsibility clauses follow a standard pattern which compensates the user for the lack of negotiation during the formation of the contract.

Jurisdictional Issues:

Jurisdiction is the authority of a court to judge acts committed in a certain territory. Jurisdiction in case of legal issues relating to the Cloud services becomes difficult and critical because of the features of Cloud like ‘Virtualization’, and ‘Multi-tenancy’.

While virtualization ensures the requirement of less hardware and consumption of less power thereby ensuring computing efficiency, it also on the other hand makes it difficult for the cloud user or the cloud provider to know what information is housed on various machines at any given time.

Multi-tenancy refers to the ability of a cloud provider to deliver services to many individuals or organisations from a single shared software. The risk with this is that it makes it highly possible that the data of one user may be accessed in an unauthorised manner by another user since the data of various users are only virtually separated and not physically. Also, it makes it difficult to back up and restore data.

The cloud enables a great deal of flexibility in data location, which ensures maximum efficiency in data usage and accessibility. However, it creates a number of legal issues as well. It makes it quite possible a scenario that the same data may be stored in multiple locations at a given time. Now, if the multiple locations are subject to different jurisdiction and different legal system, there arises a possibility that there may be conflicting legal provisions regarding data in the two aforementioned different locations. This gives rise to most of the jurisdictional issues in Cloud computing.

Also, laws relating to confidentiality and Government access to data are different across different nations. While the Indian laws manage to strike a balance between national security and individual privacy, most of the nations do not prefer a balance and have adopted a biased view on this. Problem of conflict of laws arises herein, in such cases.

Commercial and Business Considerations:

Other commercial and business considerations like the urge to minimize risk, maintain data integrity, accessibility and availability of data as well as Service level Agreements have also significantly shaped the present as well as future of Cloud Computing in India. It also creates a number of foreseeable as well as unforeseeable issues that needs to be addressed by dedicated legislations therefor.

It is an accepted truth that Law always lags behind technical innovations, and the complexities of the Cloud innovations and related Cloud Services like Software as a Service (SaaS), Platform as a Service (PaaS), and Infrastructure as a Service (IaaS) will force the law and legislations to catch up in order for an effective legal system that provides legal remedies to prevent and redress the resultant harms.

Raising awareness, ensuring universal access to information, and resource mobilizing are complimentary solutions that’ll never go wrong for the Indian scenario in order to add to the effectiveness of an effective legal system.

Note: This post first appeared here.


ABOUT THE AUTHOR

ANSHUMAN SAHOO
Founder, Editor-in-chief

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‘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.

 

Muslim Women’s Rights and Media Coverage

This is an issue covered by an article by Flavia Agnes, which addresses the issue of how the Indian Media refuses to acknowledge the variety of rights that Muslim Women have gained [in the field of divorce] through various judgements and legislations. [1]

The author uses the case of Shayaro Bano, who suffered abuse at the hands of her husband and finally gave her a talaqnama. Now, any woman in this situation has two choices. The first option she has is she can claim that the talaqnama was invalid and remain as his wife. She can rely on many precedents like Shamim Ara v State of U.P[2] and claim that the arbitrary talaq was invalid. Alternatively, she can also accept the talaqnama, thus ending her abusive marriage while also netting a settlement amount through the Muslim Women (Protection of Rights upon Divorce) Act, 1986.

However, we can see that Shayaro Bano chooses to file a PIL instead in the Supreme Court which challenged triple talaq on the ground that it violates the fundamental rights of a woman. This choice is an interesting one since Muslim women already have countless cases like Shamim Ara and Danial Latifi[3], who have clearly set down a number of rules to be followed before declaring a triple talaq valid.

The author argues that the Indian media portrays a Muslim Woman as an entity who is completely stripped off of her rights. Shayara Bano has been placed on the same level as Shah Bano by the media despite the fact that legal recourses already existed in her case.

Experts like Syeda S Hameed believe that a judgement on the Triple Talaq issue (which has come out) will only provide further ammunition to the media for targeting Muslims. This will, in turn, help right-wing nationalist groups such as the RSS to use this to fuel their hate rhetoric. This will only strengthen the cycle of hate with the media as a facilitator and can in no way serve the higher purpose of the unity of the country.

Thus, it is the author’s argument that a declaration by the Supreme Court on this issue will only serve to destroy the average Muslim’s public image and provide no substantial legal benefit.

This is an intriguing stance taken by the author, but I believe it is not without fault. Sanjukta Basu in a critique of Agnes’s article points out that the entire practice of triple talaq is unilateral and at the option of the husband. [4]Thus, any defence of the same would be futile. Basu also questions the reason why Agnes criticizes such a move taken by Shayara Bano. She believes that a court order is a massive endorsement for women’s rights and the fact that Muslim women are reaching out to the Supreme Court to seek their constitutional rights is something that the author should respect.

[1] Agnes, F. (2016, May 14) Muslim Women’s Rights and Media Coverage. Retrieved from http://www.epw.in/journal/2016/20/web-exclusives/muslim-womens-rights-and-media-coverage.html

[2] Shamim Ara v. State Of U.P., KLT 2002(3) (SC) 537

[3] Danial Latifi v. Union of India (2001) 7 SCC 740

[4] Basu, S. (2016, September 19) Triple talaq: Why Flavia Agnes’ position on Shayara Bano’s SC petition is anti-women. Retrieved from http://www.firstpost.com/india/triple-talaq-why-flavia-agnes-position-on-shayara-banos-sc-petition-is-anti-women-3010878.html


ABOUT THE AUTHOR

Ashwin Ajimsha

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Ashwin is currently in the second year of B.A.L.L.B. in Jindal Global Law School, Haryana. Interested in research/writing and loves movies, especially if they are law related.