Liberty in Africa: Peculiar Challenges

Social ills have been part of Africa for a number of years now, and though there have been several efforts made to curb such thematic issues, all hope seems to be lost. Africa seems to be bound in chains due to a number of factors such as lack of good leadership and gender issues, and many more. However, such issues can only be resolved when there is a partnership between the stakeholders and the young people.

Furthermore, despite the above mentioned thematic issues which are common in African countries, there are other social ills which are a high concern to many, which not only affect the people within a community but also act as an impediment to progressive development and prosperity within a certain country. These issues include:

  • Cronyism
  • Over-Criminalization
  • Lack of free market
  • Restriction imposed to Property rights
  • Intolerance

CRONYISM

This is one of the biggest challenges in Africa which has affected many lives and has led many to poverty. Therefore, with the high rates of poverty increasing, there is a dire need for awareness to be raised. Therefore, I believe that the only solution to such an issue is the near-perfect implementation of the rule of law which will not only increase the living standards of others but also ensure that the humanity of individuals is not challenged and their individual rights are respected.

OVER-CRIMINALIZATION

Evidently, over-criminalization has tripled in South Africa in the last decade, therefore many are placed in situations where rights are being challenged or limited. This can only be resolved by good leadership as well as raising awareness on the respecting individual rights. The more the leaders are able to learn from other young people and more aware of the situations other people are facing, the more we overcome such impediments.

LACK OF FREE MARKETS

This issue can be resolved only when government institutes do not restrict individuals from trading with each other. By doing so, this encourages the spirit of free market in order to increase wealth and also accelerate development.

INTOLERANCE

This is one of the issues that acts as a hurdle to development. Therefore, there is need to increase more awareness about tolerance and respect towards cultural diversity. Therefore, I believe that in order to resolve such an issue, awareness should be raised in schools, in order to raise a generation of tolerance.

The latter are a few examples or rather a few factors which are an impediment to Liberty in Africa. Many African citizens are denied not only the full enjoyment of human rights, fundamental freedom but also have their Liberty challenged. In order to have all these enjoyed, it has to start with good governance; and good governance starts with zero corruption, zero marginalization, the effective enforcement of the rule of law, equal opportunities availed and harnessing on youth involvement. This would rather contribute to individual growth as well as economic growth, hence contributing to creating a better Africa for all, and also progressing to economic development.


ABOUT THE AUTHOR

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LESEGO GAETWESEPE

Lesego Gaetwesepe is a law graduate and she is intrinsically passionate about human rights, community building and empowering young people. She is a participant at the YALI Regional Leadership Center in Southern Africa and was also part of the #ageofconsent project. She was also part of a project facilitated by NACA (NATIONAL AIDS COORDINATING AGENCY). Ms Lesego is currently a volunteer at Gogontlejang Phaladi Pillar of Hope Project and also represents the organisation at the UNESCO Pan African Youth Network for building a Culture of Peace, and she is also taking up training as an ASFL (African Students for Liberty) Local Coordinator.

 

Eye for an Eye, “Blinded by Revenge”

For many years, the death penalty issue has created controversial debates and even to date the debates still remain unabated. This is because justice has become a relative term and people term incidences that are contrary to their self-will and desires as injustice.[1]  Therefore, with that, the thirst for vengeance is so evident that states find it difficult to ignore;[2]  particularly because of the eye for an eye concept that has been upheld for so many centuries.

However, what people seem to forget is that two wrongs don’t make it right. Yes, the offender needs to be punished, but do we necessarily have to punish the offender by taking his/her own life? What about the rights of the accused, isn’t the law made to give others a second chance to reform and do what is right for their communities? Most of these questions may seem irrelevant to most people because they are so centred on vengeance, that they forget that everyone’s rights matters.  This concept has relatively been one of the top reasons why most countries still remain to retain the death penalty, slowly ignoring the corrosive effect it causes both to the offender and the community.

We have become so blinded by revenge, that we have forgotten our obligations as individuals, government entities, as well as members of a civil society; moreover forgetting the obligations entrusted upon us by International treaties, covenants such as the Universal Declaration of Human rights. These international laws were adopted in order to guide states in respecting individual rights and states signatory to such treaties are obligated to adopt these laws within their national Constitutions.

Retaining the death penalty goes far beyond than reducing crime. It causes trauma on the side of the accused, also creates tension between states particularly in situations where another state has abolished the death penalty; and above all, it infringes the most important fundamental rights, which are the rights to life and to liberty.

Therefore, it is important that normative edifices that guard against human rights violations adequately ensure that everyone’s fundamental rights are protected and respected because respecting individual rights and freedoms is the only way to inclusive development.

According to the World Economic Forum of 2015, development is very much possible, when individual rights and freedoms are respected; this also includes the rights of the offenders or the accused. Therefore, this should be a wakeup call to retentionist countries to outlaw death penalty and respect the rights of individuals.  The death penalty should be replaced with alternatives such as life imprisonment so as to reduce the cruelty imposed upon offenders.

To deny them human rights, is to challenge their humanity[3]. With that, I believe that the rights of each individual should be maintained regardless of their status or regardless of the situation they have imposed upon their fellow community members; rights do matter.

[1] K.N Bojosi, ‘Commentary on recent constitutional challenges to the death penalty  in Botswana http://www.biicl.org/files/2292_bojosi_ recent_constitutional_challenges.pdf (2015 September 20)

[2] O.B.Iveren, ‘Justification for and the abolition of capital punishment under human rights la, Nigeria(April 2011)   https://www.unilorin.edu.ng>law  (2015 September 30)

[3] Nelson Mandela quotes


ABOUT THE AUTHOR

Picture1

LESEGO GAETWESEPE

Lesego Gaetwesepe is a law graduate and she is intrinsically passionate about human rights, community building and empowering young people. She is a participant at the YALI Regional Leadership Center in Southern Africa and was also part of the #ageofconsent project. She was also part of a project facilitated by NACA (NATIONAL AIDS COORDINATING AGENCY). Ms Lesego is currently a volunteer at Gogontlejang Phaladi Pillar of Hope Project and also represents the organisation at the UNESCO Pan African Youth Network for building a Culture of Peace, and she is also taking up training as an ASFL (African Students for Liberty) Local Coordinator.

 

Election, Religion, and Indian politics

Politics is a sideshow in the great circus of life…

Politics is derived from the Greek words ‘Polis’ which means community and ‘Poli’ meaning many. Politics can be defined as the laws, methods and practices of a group which makes decisions (i.e. a government over a community).[1]

According to Robert A Bahal, a Political scientist, Politics is a sideshow in the great circus of life. The main aim of a political system is to provide all-round growth to a society which in turn will lead to a rise in status of each individual and providing a strong foundation to the nation.[2]

Earlier in primitive society people were living brutish, nasty, and chaotic life according to the Leviathan of Thomas Hobbes. To overcome the difficulties of the circumstances they felt the need of a political system to govern themselves in some well thought-out way so that the Life of the people would be smooth, simple and easy. But today’s reality doesn’t meet with such vision and convictions of the people of that time. The Political system, are getting more complicated with every passing second in its aims and objectives and its ways to full fill the same.

Religion means a lot…

“Religion is that set of symbolic forms and acts which relates man to the ultimate conditions of his existence”

– Robert Bellah.

“Religion is a system of beliefs and practices by means of which a group of people struggles with the ultimate problems of life”

– J. Milton Yinger

“Religion” is “a system of beliefs and practices by which a group of people interpret and respond to what they feel is sacred and, usually supernatural as well (Johnstone, 2004:13).”

– Ronald Johnstone

“A religion is a unified system of beliefs and practices relative to sacred things, that is to say, things set apart and forbidden – beliefs and practices which unite into one single moral community called a Church, all those who adhere to them.” (Emile Durkhaiem . It can be modified by adding, temple mosque, Gurudwara et cetra.)

Summing up the entire definitions and the self-observation , I have come to a conclusion that the religion is set of particular practices and beliefs about some unseen natural powers whose blessing and guidance which are just alike our shadow. Religion plays a crucial role in any person’s life. The way of thinking, living and attitude towards anything have a huge influence of the religion practiced.

Hinduism, Islam, Sikh, Christianity has been historically secular…

India’s own past is far more relevant in this context, for, unlike Europe, India does not have a history of theocratic state.  As far as Hindus are concerned, there is no treatise on politics that is regarded by them as infallible. In fact, the tradition of Raja and Rishi represents a clear distinction between a spiritual and temporal role. The two roles were inter­connected but autonomous. Then why rightist people are claiming the Patriotism and Hinduism should go together. The religion is no proof of any kind of Patriotism. The Patriotism is abiding by the constitution, working for the development of the nation to lead the nation to its highest civilizations to where it belongs.

Eight hundred years of rule by the Muslim Kings in India is equally marked by its pluralistic characters. Though the king and ulema interacted, secular authority always reigned supreme. A third dimension of the Muslim polity, viz. Sufis carved out their own autonomous domain, often in defiance of both the king and the ulema. But the recent trend is ostensibly much varied from the ethos of the Islam. The fanatic followers of the religion desire to make the beliefs as the lifeline of the political system. They want the Aayat of Koran should be the law of the land. Does it really make sense? No, definitely not, It’s terribly embarrassing and nothing else. The politicians of the muslim community or the Politicians whose vote bank consists of muslim voter tries to manifest such agenda and mislead the innocent people of the nation to grind their own axe. Resultantly and ultimately the sufferer will be people not the politicians. So, the voter should cast their vote not to vote their caste.

The lesson of the Sikh history is no different. The fact that spiritual and temporal affairs were conceptualised in the Sikh tradition by two distinct terms peeri and meeri, respectively, symbolised by two swords of the gurus and two separate forums of Harmandir Sahib and Akal Takhat, clearly implied duality. Sikh religion and politics though closely related were autonomous. The autonomous character of their religious and secular leadership and institutions became more pronounced after the gurus.

Indian Constitution is Secular in its Ethos…

The term “secular” is eloquently expressed in the preamble of the constitution. And preamble is the mirror our constitution. The Supreme Court of India held that the Preamble is part of the constitution in Keshavananda Bharti case. And it was also held that the basic features of the constitution can’t be amended. Hence, any statute, legislation or any law needs to pass the test of constitutionality for its implementation or enforcement. The duty of interpretation of statute, or law rests with the judiciary. Whenever such situations come they do the same.    And the same happened with Sec123(3) of the Peoples Representation Act. .

Election laws that has been debated widely across the nation…

The Section 123 (3A) says: “The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.] 8[(3B)   The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

 For the purposes of this clause, “sati” and “glorification” in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987 (3 of 1988).]” The Section 122 (b) of the Act also considers as bribery “The appeal by a candidate or his agent or by any other person with the consent of a candidates or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols…”

The Election Commission is not only to conduct elections but also to prepare the roadmap for the future reforms. A vibrant, election commission is necessary to ensure that basic structure of the Constitution is not eroded by declining politics. The attitude of Government towards developing decent conventions towards a vibrant democracy is not only playing mayhem with the democratic values but threatening to spoil the expectations of people. 

Supreme Court guidelines  

Supreme Court recently ruled that “religion, race, caste, community or language would not be allowed to play any role in the electoral process” and that election of a candidate would be declared null and void if an appeal is made to seek votes on these considerations.

The genesis of the case lies in the 1990 Assembly elections to the Maharashtra State Legislative Assembly. The appellant Abhiram Singh, a candidate of the BJP, was elected from Santa Cruz constituency. The respondent, a candidate of the Congress party came in second. It led to an election petition alleging that the appellant had appealed for votes on the basis of Hindu religion. The election petition was allowed by the Bombay High Court in 1991.Singh went to the Supreme Court in appeal. The limited question that the Court considered in its judgment today was the interpretation of Section 123(3) of the Act.

Justice Thakur noted that the Constitutional ethos forbids mixing of religions or religious consideration with the secular functions of the State and that religion remains a matter personal to the individual with which neither the State nor any other individual has anything to do. The main thrust of its politics is ‘Hindutva’. Following the SC judgment in 1995 declaring ‘Hindutva’ a way of life, the pro-Hindutva forces have exploited this judgment to an extent that has no precedent.

“An interpretation that will have the effect of removing the religion or religious considerations from the secular character of the State or state activity ought to be preferred over an interpretation which may allow such considerations to enter, effect or influence such activities,” Justice Thakur said.

Conclusion

In present scenario politics smells like rotten fish and the politicians sound like fish market. They creates ruckus over so sensitive issues, where they are needed to contemplate and find out a way to overcome the problem. Sometimes they manufacture new issues in the factory to grind their own axe. Propaganda and deceit always go together, and the Indian politicians are well versed at this.

The violence in Muzaffarnagar riot, Babri Maszid demonstration, and beef ban are the highly debatable issues but of very least importance in respect of the growth and the development of our nation. But none of our so called leaders live each other behind in spreading hatred amongst the different sections of the society professing different religion even many a times they go on provoking the people to serve their own means. In fact, members of every community need to associate with those of other communities to promote their class, professional and cultural interests through, say, organisations of workers, peasants, occupational groups, writers, artists, etc

Recently Uttar Pradesh is going to elect its new government. The politics of UP is well known for its communal colour. In this regard, the judgement of the Supreme Court is a slap on the face of such hatred spreading politicians. But we will also come to know of its implementations and the power, function and loyalty of the Election commission either to the people of India or the politicians. State elections are also due this year for Punjab, Uttarakhand, Goa and Manipur. Let’s see the new way our  dear politicians and also the new abbreviated or invented politics.

According to the social scientist Plato Societies aren’t made of sticks and stones, but of men whose individual characters, by turning the scale one way or another; determine the direction of the whole”. So, we need a free fair election, where people are not enticed on basis of religion, race, and caste rather they should be influenced by the political, economic, and industrial policies. If this had happen our country would have been all great again in all fields.

Politics and religion should not be separated in its primitive stage but in the prevailing circumstances it should be stopped to be mingled and a good step has been taken up by the SC….

[1] http://www.spaceandmotion.com/Philosophy-Politics-Globalisation.htm

[2] behallaw.com/robert-j-behal



ABOUT THE AUTHOR

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KOMAL

Komal has done her schooling from Jawahar Navodaya Vidyalaya , Birauli, Samastipur, Bihar. Currently, she is pursuing BA.LLB at Chanakya National Law University, Patna. Intrinsically passionate about News paper, Books and Basketball, her interest extends to understand the intricacies of the current legal issues. She yearns to be a renowned lawyer.

Intersection of NJAC and Separation of Power

“The basic premise of the Constitution was the Separation of Powers and a system of checks and balances because man was perceived as a fallen creature and would always yearn for more power.” – Roy Moore

The early theorist Montesquieu on the doctrine of separation of powers, said:

“When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, they execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man, or the same body, whether of the nobles of people, to exercise those three powers, that of exacting laws, that of executing the public resolution, and that of trying the causes of individuals.”

Brandeis J. while laying accentuation on the principle of separation of powers said that the inspiration driving the separation of powers precept is not to propel viability in the association yet rather to hinder the act of optional power. He furthermore highlights that its inspiration is not to keep up a key separation from grinding among various organs of the state by keeping them segregated yet to shield people from autocracy by technique for certain contact in light of exacerbation of strengths. It is to gap administration against itself by making unmistakable concentrations of drive so they could keep each other from undermining oppression.

The National Judicial Appointments Commission (NJAC) tried to blur this line of separation of power between legislature and judiciary. It was a body entrusted with delegating judges to the higher Judiciary in India. Article 124 of the Constitution was altered through the 99th Amendment to mirror the adjustment in the arrangement of arrangements from the collegium framework, in which an assortment of judges would be counselled by the President to designate the judges, with the judiciary’s feeling being last. The body of the NJAC incorporates as the Chief Justice of India, the two senior-most judges of the Supreme Court, the Law Minister and two “prominent people”. A sub-council was further constituted to designate the “prominent people”. The synthesis of the sub-council incorporates the Prime Minister, the Chief Justice, and the Leader of the Opposition.

A historic judgement by the Supreme Court has held the National Judicial Appointments Commission (NJAC) Act 2014 unconstitutional. Article 13 of Indian Constitution announces that all “laws” that is conflicting with or in criticism of any of the fundamental rights is invalid and void. This force of “legal survey” is given on the Supreme Court (Article 32) and the high courts (Article 226) that can announce a law unlawful and invalid. The Constitution all in all verifiably focusedon that “the Supreme Court of India is the overseer of Indian Constitution”. Governments have tried to form the NJAC in order to extend the presence of the executive in the judiciary. The Indian democracy values Separation of Power and it cannot be overruled in any circumstances. When the judiciary doesn’t interfere in choosing executive appointments then the same is expected from the executive. The Supreme Court is the custodian of the Fundamental Rights of the citizens; it needs to have full discretion on such matters.

However, there is need to bring more transparency and accountability in the collegium system. In the striking down of the Constitution’s 99th Amendment furthermore the NJAC Act by holding the same as being violative of the fundamental structure of the Constitution, the Supreme Court has viably re-established the autonomy of the higher legal. The decision has demonstrated that the NJAC can’t supersede the privilege of the higher legal to decipher the laws. This additionally re-builds up that demonstrations of the governing body, right now overpowered by the numerical quality of the decision gathering, can be considered responsible in courtrooms.

“The judiciary and the press must be allowed their inviolate space and protected from increasing disdain and intolerance of the other pillars of the Constitution.”- Anonymous

Recently, in Madras Bar Association vs Union of India (2014 (10) SCC 1), the Supreme Court quoted the following excerpt from the Privy Council decision in Hinds vs The Queen, 1976 All ER (1) 353:

   “What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members… a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.”

The lawmaker class of the decision party depicts the judgement as oppression of un-elected over chosen. Despite the fact that they have their right to speak freely which is a principal right, it is not the route pushing ahead. Presently, the parliament ought to locate all conceivable approaches to work with the legal framework subject to the sway of legal and also parliament. In a constitution where “Equivalent insurance by law and Equal security of Law” (Article 14) is the establishing guideline, the straightforwardness in Judicial arrangements is an unquestionable requirement.

To conclude the words of Dr. A.S Anand, CJI stands true,

“…the Supreme Court is the custodian of the Indian Constitution and exercises judicial control over the acts of both legislature and the executive.”



ABOUT THE AUTHOR

prerna-deep

PRERNA DEEP

Prerna Deep is currently a first-year student at Campus Law Centre, University of Delhi.  She has completed English Honours from Miranda House, DU. Literature gave this forever bibliophile the wings to follow her heart and Law gave her the strength to believe that she too can change the world. She considers receiving an award for her essay on ‘Women and Law in India’ from Mr Ram Jethmalani a treasure. When not writing she’s probably binge-watching sitcoms.  She believes nothing describes her best than Virginia Woolf’s words:
“I have a deeply hidden and inarticulate desire for something beyond the daily life.”

Legal backing to rent a womb in India

This article has been written by Miracline Paul SusiMiracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University.

Surrogacy is a practice by which surrogate mother becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children. While countries including Italy, Spain, Germany and France prohibit all forms of surrogacy, countries like Australia, the United Kingdom and Denmark, allow only altruistic surrogacy. Commercial gestational surrogacy, in which a woman who has no genetic link is paid to have a baby, is a growing trend in countries like India, Russia, Thailand, and Ukraine. After the first surrogate delivery in India in June 1994, India has steadily emerged as an international destination for commercial surrogacy. A study backed by the United Nations in July 2012 estimated the business at more than $400 million a year, with over 3,000 fertility clinics across India[1]. Though the ethical issues started at an early stage, the legal complications with regards to commercial surrogacy came only in the year 2008. A Japanese couple contracted an Indian woman to serve as a surrogate. But before the woman could deliver the child, the couple got divorced. The genetic father wanted the child’s custody, but Indian law barred single men from it, and Japanese law didn’t recognize surrogacy. In this landmark case the Supreme Court held that commercial surrogacy was permissible in India and the baby was ultimately granted a visa[2]. Surrogacy (Regulation) Bill 2016 proposed by the Health Ministry, banning commercial surrogacy came as a solution to this problem. The bill was cleared by the Union Cabinet on the 24th of August 2016 and is set to be introduced in the Parliament soon.

The draft bill provides for surrogacy as an option to parents who have been married for at least five years, either one of couple must have proven infertility. The age limit for the married couple ranges from 23-50 for female and 26-55 for male. Couples who already have biological or adopted children cannot commission a surrogate child. The bill clarifies the legal position of a child born of surrogacy by ensuring all legal rights as a citizen for the child. The bill bans egg donation. The surrogate mother has to be a married woman who herself has borne a child and is neither a non-resident Indian (NRI) nor a foreigner. Women can be surrogates only once and a married couple can only have one surrogate child. The couple should employ an “altruistic relative”, i.e. the surrogate mother should be a relative who is sympathetic to the situation. The bill restricts overseas Indians, foreigners, unmarried couples, homosexuals, and live-in couples from entering into a surrogacy arrangement.

Although the bill was passed with the intention of regulating the surrogacy, some of the clauses had outraged both the medical community and the general public. By allowing surrogacy for select classes of citizens the bill would violate citizens Fundamental Rights as laid down in Article 14 of the Indian Constitution. The idea of “altruistic surrogacy” expressed in the Bill greatly limits both potential surrogate mothers as well as couples wanting children.

The bill has ignored to discuss the issue of consent in detail. If a woman willingly consents to being a surrogate mother, is assured of a safe delivery; and the baby is assured of a safe home, why should she be limited to only one surrogacy? After the surrogacy industry boomed, a lot of women were dependent on the same. The issue here seems to be that the woman is “exploited” for her body. Surrogacy laws should be set out in such a way that full consent of the woman in question is assured. Here, instead of regulating the ways and policies in which a woman’s exploitation is prevented, what the bill has done is eliminate the idea entirely. The ban on egg donation in order to curb child trafficking and illegal surrogacy racket is only a blanket.  This situation cannot be resolved without censoring the entire industry[3].

Gay rights are still an evolving issue in India. While the Supreme Court is sitting on a review petition on Section 377 of the Indian Penal Code, pertaining to the status of gay rights, no clear legal stand on the issue has emerged. At this point the explicit stating of the ban of surrogacy to homosexual couples clearly shows the uncertainty of gay couple status in India.

The main issue is the question of disallowing commercial surrogacy and restricting foreigners from availing themselves of surrogacy in India. Since the inception of commercial surrogacy, a number of incidents have sparked unpleasant legal questions surrounding commercial surrogacy involving foreigners. In 2012, for example, an Australian couple who had twins by surrogacy arbitrarily rejected one while selecting the other. Such issues reveal the complexities that surround commercial surrogacy. There is need for discussing such complexities in the bill.

The draft Surrogate (Regulation) Bill seeks to comprehensively address the issue of surrogacy in India. This is indeed a step in the right direction. But the aim of bill will reach its fulfillment only when the above mentioned controversies are addressed.

[1] The Growth Of Surrogacy Industry In India And The Issues Surrounding It, 3rd October 2015, viewed at https://thelogicalindian.com/story-feed/awareness/the-growth-of-surrogacy-industry-in-india-and-the-issues-surrounding-it/

[2] Baby Manji Yamada vs Union Of India & Anr (2008) 13 SCC 518

[3] Malavika Ravi , A Critical Analysis Of The Surrogacy Regulation Bill 2016, 31 August 2016, viewed at http://feminisminindia.com/2016/08/31/critical-analysis-surrogacy-regulation-bill-2016/



The December book bucket

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The punishing hand of the court: Apex court upholds the constitutional validity of defamation as a criminal offence

This article has been written by Torsha Sarkar. Torsha is a third-year law student in National Law University Odisha.

In 2014, the Supreme Court of India upheld the constitutional validity of section 499 of the Indian Penal Code (IPC), whereby defamation is touted a criminal offence. This judgment was in response to the petitions filed by Subramaniam Swamy, Rahul Gandhi and Rajdeep Sardesai. Interestingly, the judgment is remembered more for its vivid, obscure linguistic constructions, and less for its legal precedence, for the obvious reasons.

This judgment was given by the Hon’ble Justice Prafulla C. Pant, and Justice Dipak Misra, who by now (and in light of the recent judgment of making it mandatory to play national anthem in movie theatres), must be one of the most government-friendly justices in the history of Apex Court judges, with the exception of Justice Bhagwati in his ADM Jabalpur judgment.

Yet again, liberalism and freedom of speech had to take a backseat in an India where dissent is increasingly being curbed and blind obedience of the authority is sought after. Historically, in Lord Macaulay’s Penal Code, section 499 was inserted as a counterpart of the English offence of libel. However, with our legislature determined to imbibe the colonial hangover in its true sense, chose to retain it even seventy years of independence. Interestingly, English libel provided truth as a comlete defence, while the Indian law has put conditions on that defence. Only when the truth is used to further public good, the defence can be invoked. Now with the discretion of deciding what public good is left on the court, one can only imagine the effectiveness of this defence.

International stance on the law of defamation.

The International Covenant on Civil and Political Rights (ICCPR), recommends that restrictions to freedom of speech be strictly necessary and proportionate. India is a party to it, and in light of the same, the fact that a private wrong like defamation entails criminal liability stands in blatant violation of ICCPR[1].

In 2014, Amnesty International also made a representation to the Law Commission of India, regarding the widespread exploitation of journalists and curbing of media freedom. Also, the opinion of United Nations Special Rapporteur on the Promotion and Protection of Freedom of Opinion and Expression, Frank La Rue becomes relevant. He coins a term called ‘judicial harassment’, whereby accused, charged under section 499, are kept for long time in custody, having an overall fettering effect on the freedom of speech and expression[2].

Many counties are recognizing the pointlessness of this particular piece of law. United Kingdom, from whom India had borrowed the law so joyously, have abolished it.

The Court’s view in Subramaniam Swamy vs. Union of India.

The judgment handed out has a vivid, obfusciating linguistic construction, and is rife with many, many loopholes. The Court rushed to hold that firstly, defamation was not merely a private wrong, but did not point out the manner in which the damage to one’s reputation by another becomes a public matter, and one that entails criminal liability.

Secondly, the Court also fixed a strict liability standard to the crime of defamation – one that has already been held unconstitutional by the 1995 judgment of R.Rajagopal vs. State of Tamil Nadu[3]. The Court also added a ‘public interest’ aspect to the restrictions to speech and expression, as given under Article 19(2). But this too, has been held unconstitutional in the case of Sakal Papers (P) Ltd. vs. Union of India[4], a judgment that went as back as 1962. However, if the judgment writing trend of Justice Dipak Misra is to be taken into account, precedents do not matter to him. So, this judgment, despite facing raging flak from law scholars, would persist in its glorious 268 pages.

[1]     Vrinda Vinayak, ‘Why The Supreme Court’s Ruling On Criminal Defamation Is An Insult To Free Speech'<http://www.huffingtonpost.in/vrinda-vinayak/why-the-supreme-courts-ruling-on-criminal-defamation-is-an-insu/> last accessed 21st December, 2016

[2]     Id

[3]     R. Rajagopal vs. State of Tamil Nadu, [1994] SCC 632

[4]     Sakal Papers (P) Ltd. vs. Union of India, [1962] SCR 3 842



The December book bucket

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