Category Archives: News & Updates

Mike Okada has been Appointed as a New General Counsel and Senior Vice President, IP Licensing & Legal Affairs at Immersion Corporation

Immersion is a leading developer and licensor of the touch feedback technology, also called as haptics. Headquartered in San Jose, California with offices worldwide, Immersion provides with technology solutions for creating mesmeric and realistic experiences that enhance digital interactions by engaging users’ sense of touch. Immersion’s large portfolio of published patents and applications serves as a wide-ranging tutorial to the field. Having not less than 3600 patents, issued or pending, Immersion’s technology has been adopted in more than 3 billion digital devices, and provides haptics in mobile, automotive, advertising, gaming, medical and consumer electronics products. Immersion’s patent portfolio covers a range of innovations for enabling tactile feedback across applications and markets including those of computing, gaming, medical simulation, automotive, and industrial equipment. The mesmeric and expansive work and patent portfolio of the Immersion can be speculated by the following charts:

Immersion is recently in news for its proclamation of Mike Okada being the new General Counsel and Senior Vice President, IP Licensing and Legal Affairs. With this announcement, Mike Okada replaces Amie Peters, the outgoing General Counsel who worked for the Corporation for over a decade in a numerous roles and positions.

CEO of Immersion, Ramzi Haidmus, while acknowledging and praising the newly made General Counsel said that it is the substantial experience of Mike in the field of technology and corporate law that makes him ideally fit for the post. Further, his in-depth knowledge on IP licensing and other complex transactions that deals with global technology leaders will be an asset to the organization as a whole. Talking of Amie, the outgoing Counsel, Ramzi mentioned and praised her work, dedication and support she bestowed to the Immersion and its stakeholders. She also acknowledged Amie’s contribution to the Corporation over the timespan she worked for.

Before joining the Immersion, Mike was a part of Dolby Laboratories as the Vice President, IP Transactions and Legal Affairs. As a Vice President of Dolby, with over one thousand licensees across various segments like PC, mobile, broadcast and consumer electronics, he led a global team which supported the audio and imaging technology businesses of the company. Even before working in Dolby, Mike was a partner at Wilson, Sonsini, Goodrich &Rosati where being a member of Technology Transaction Group, his work focused on domestic and international commercial transactions including IP. Speaking of his qualification, Mike hold a JD from the University of Southern California and an AB in Economics from Columbia University.

Quoting Mike Okada on how he looks up at the new post and the company he is joining, he says, “I’m excited to be joining Immersion, a recognized leader in haptics. I look forward to working with the team to scale adoption of digital touch experiences in the market.”

With a vast experience in the field of technology and IP licensing with his previous works and achievements, and Immersion’s forte in licensing of technology, it is expected that Mike’s experience will be an aid towards further flourishing of the Corporation. It will be interesting to see how the Immersion builds with its new General Counsel and Senior Vice President after the end of Amie Peter’s tenure.

Author: Sonal Sodhani , Intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at ankit@iiprd.com



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Does Profiling Jeopardize Traditional Principles Of Law?



1. Living in an era of digitalisation and automated decision making has made access to services more effective, efficient and highly convenient. It is hard to ignore that e-commerce has essentially opened up an industry wherein the consumers have the privileged access to be spoilt for choice, at a cost of giving up personal data the value of which they don’t realise. This personal data which serves as attributes to help algorithms understand consumer behavior. In effect, by understanding consumer behavior the algorithm shows products and services that the consumer will be interested in. In the words of the corporations, this act of profiling helps discharge a more effective and satisfactory service.

2. From a legal standpoint, the act of profiling although on the face of it is not illegal1 but definitely poses a variety of threats to the traditional principles of law that have maintained a sense of order in the society . It is in this context I shall attempt to draw your attention to the imminent and continuing peril profiling holds if remained unregulated.

I. The Subtle Propagation Of Discrimination

3. Prohibition of discrimination is not just a nationally but is universally recognized as a right.2 It is important to understand that the act of profiling consumers is a potential tool to propagate discrimination through the digital world of the Internet. For example the access to data that understands the spending capacity of the consumer can lead to prices being listed differently for different people and thus result in price discrimination to a significant extent.3 Additionally, potential employers that employ HR analytical companies to scan through the pool of talent of potential employees can specifically choose a certain person not because he/ she is more qualified for the job but because the potential employee is part of the a specific gender, race, caste, place etc and deny the opportunity to a potential meritorious candidate. Further, if profiling remains unregulated and is deployed on information such as genetics, potential employers and insurance companies may not grant the job or the health insurance merely on the ground that they might have a gene mutation that causes or increase the risk of an inherited disorder, in result violating the principle of equality recognized under Article 14 of the Constitution.4 Thus, the act of profiling in the near future will evolve into a subtle but powerful means of propagating discrimination through several attributes of data obtained knowingly or unknowingly.

II. The Threat to Privacy and Freedom of Speech and Expression

4. It is well known that the right to privacy although universally recognized5 was only recently recognised through the judicial construct by the Hon’ble Apex Court in the case of Justice K S Puttaswamy v UOI6. The proponents of the right to privacy shall agree that consenting to the access and processing of information for a specific purpose is not a violation of the right to privacy. However, with profiling, although you agree to grant access to certain information, the adaptive algorithm can take decisions and the inferences derived may go beyond the purpose you originally consented to process your data. For example your professional networking profile such as LinkedIn mandates that you to link your social media handle (if any) such as Twitter. Since LinkedIn is accessible to HR analytical companies, they gain access to your Twitter account and profile you based on the Tweets you liked, re-tweeted and published yourself. Due to the lack of regulation, LinkdIn sells your data to an HR analytical company who profiles you not just on the basis of your professional profile but gains access to your social media handle as well and as a result of your Tweets and not your talent you could be deemed ineligible for employment to a class of potential employers. Does this go beyond the purpose for which you consented to disclose your information? Does this act amount to the violation of your right to privacy?

5. Further, it is seen that news received in the form of notifications not just on your phone but on your other devices as well is tuned according to your preferences. Once your preferences are understood by the algorithm, it will slowly restrict the access of your newsfeed to those that will suit your needs. On the onset this does not seem illegal, it actually sounds to be very convenient. In the long run it is reasonable to infer that access to information will be restricted without the conscious knowledge of the user since he will be shown what he wants to see. Highly tuned services if permitted to operate in an unregulated and if engaged by the state will restrict the right to access of information.

6. Moreover, It is a settled principle in law that the right to know is a sect of the freedom of speech and expression.7 Another growing concern is that in an effort to curb hate speech, fake news and propaganda through the digital world of Internet, algorithms just don’t identify information that qualify as such but also are slowly being empowered to recognize the individuals if any that effectively block any content generated by that user. Since recognizing content that threatens the order of society is very subjective, there must be a guided approach that must be adopted while coding such algorithms else it will lead to overboard censorship.

7. The Constitution of India envisaged that the people of India be governed by the rule of law. Further, the avoidance of arbitrariness is an integral part of maintaining the rule of law. Here it is to be noted that the normative foundation for advancing the rule of law includes Human Rights law (as discussed above). It is my understanding the algorithms that are deployed for profiling seem to know you better than you know yourself and thus effortlessly and arbitrarily manage to intrude on your rights. So long as systems such as profiling are permitted to operate on an unregulated playing field, it will continue to threaten the rule of law.

About the Author: Eashwari Nair, student of law at the Symbiosis Law School, Hyderabad, Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at swapnils@khuranaandkhurana.com

References:

[1] Recital 71 of the GDPR recognises the act of profiling.

[2] Art 15 of the Indian Constitution, Art 7 of the Universal declaration of Human Rights.

[3] Although a contentious issue and can be argued both ways.

[4] Discussed in the case of United India Insurance Company Limited v Jai Prakash Tayal ,  2018 SCC  OnLine Del 7415

[5] Art 17 ICCPR, Art 8 ECHR, Art 12 UDHR

[6] (2017) 10 SCC 1

[7] As discussed in the case of State of UP v Raj Narain (1975)4 SCC 42; M.P. Jain, “Indian Constitutional Law” Lexis Nexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 1081, 1083.



Electoral Laws & Digital Media

Media, being considered as the fourth pillar of democracy is one of the most important weapons being used especially during elections. Of all the media, digital media in today’s digital world is the most used form of media, with the Loksabha elections currently being held all over the country, it is the responsibility of the Election Commission of India (EC) to keep a check on the candidate’s and party’s promotions and their means and limit of promotion and to ensure the same, the EC must be conferred with the essential powers to deal with the upcoming issues like propaganda spreading, fake news, paid news, et cetera for which the use of digital media and social media is being made. Are the electoral laws strong enough to deal with more contemporary issues like these? Is the EC having enough powers to deal with problems arising from use of Digital Media?

The EC currently is working under the powers conferred under Art.324 of the Indian Constitution and now, when the Model Code of Conduct (MCC) is already in place, this time; it has been instructed that the social media platforms too will have to follow the MCC. This step was taken mainly to tackle issues like online propaganda, paid news, et cetera.

The main base on which the propaganda is spread is the data collected from our social media platforms, the data which is personal to us and based on that, we see the content and the digital media platforms do not take the responsibility to monitor and verify the content which is posted on their websites. The present data protection law​has limited applicability to political parties or to data brokers that market personal data at a massive scale. This enables the creation, for example​, of WhatsApp groups based on voter lists coupled with phone numbers and caste, gender and other sensitive information to target voters with propaganda without their consent.

This time, the EC finally woke up to its powers and partnered with many digital media platforms including Facebook, one of the most used or to be more precise, misused platforms during elections. An official from Facebook had said, “Anyone

who wants to run an ad in India related to politics has to first confirm their identity and location, and give more details about who paid for or published the ad. We then run the ad with a ‘Paid for by’ or ‘Published by’ disclaimer and house it in a searchable Ad Library for seven years” The Facebook also agreed to give all the expenditure information to the EC.

Also, the EC had reportedly said, “All the provisions of model code of conduct shall also apply to the content being posted on the social media by candidates and political parties, ​For scrutiny, the district and state-level Media Certification and Monitoring Committees (MCMC), which vet all electronic and radio advertisements during the model code period, will now also have a social media expert on board.” Such social media platforms have to now take the responsibility to verify the content before allowing it to post. As seen above, the media content has to now go through a check by the MCMC and more recently, after the tie-upwith EC, platforms like Facebook and Sharechat using Artificial Intelligence have been successfully removing millions of fake accounts following the self regulations. Yes, the EC had recommended the Internet & Mobile Association of India (IAMAI) and other social media platforms to undergo self regulations.

They then presented the “Voluntary Code of Ethics for the General Elections 2019” in which the companies and the participants agreed to provide a mechanism for political advertisers to submit pre-certified advertisements only. The Code of Ethics also promises to facilitate transparency in paid political advertisements but the scope of the transparency and regulated content is very vague and in the absence of a clear legal basis, the code can be misused or used only in the favor of the participants.

Under S.126 of the Representation of the People Act, 1951; display of any election matter by means, inter alia, of television or similar apparatus, during the period of 48 hours before the hour fixed for conclusion of poll in a constituency is prohibited. But its application on social media platforms is not governed by any specific law and in that regard; a PIL was filed in Bombay High Court asking for a

similar blackout or silence period for social media platforms. The EC’s defence stood the self regulations to which the Hon’ble HC expressed its views and questioned why is EC hesitating to issue any such orders.

Contrary to that, the Supreme Court had expressed its happiness that the EC has finally waked up to its powers. The Statement came looking at the EC’s actions being taken against the senior leaders like Yogi Adityanath, Mayawati for making communal speeches but the powers of the EC with respect to regulation of media content over various social media and other platforms is still a big question mark.

Conclusion:

It is evident that the EC is empowered only under one provision of law i.e. Article 324 of the Indian Constitution. It is the only support for the EC to hold on to. To summarize the efforts taken by the EC to tackle digital media, it would not be wrong to say that the self regulations are not enough for the social media platforms to keep an eye over the content, the EC is having a hard time to enforce its powers not having specific laws to deal with the upcoming issues.

It is the need of the hour that the Electoral Laws in India must be drafted specifically into a new act giving powers to the authorities to deal with ever-growing area of digital media and its issues to ensure that the Elections are held in a truly fair and competitive manner and the true purpose of Democracy is served in a fair manner.

Author: Ashish Rohra, Intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at rishabh@khuranaandkhurana.com

References:

[1] https://economictimes.indiatimes.com/news/elections/lok-sabha/india/model-code-political-ad-rules-w ill-apply-to-social-media-too/articleshow/68350634.cms

[2] https://www.analyticsindiamag.com/indias-data-protection-bill-in-june/

[3] https://thewire.in/politics/indias-electoral-laws-are-ill-equipped-to-deal-with-digital-propaganda

[4] https://www.theweek.in/news/india/2018/10/27/sc-relief-madhya-pradesh-minister-accused-paid-new s.html

[5] https://www.business-standard.com/article/news-ani/sc-refuses-to-entertain-petition-seeking-prosecut ion-of-voters-indulging-in-electoral-malpractices-119042200475_1.html

[6] https://inc42.com/buzz/election-commission-seeks-ban-on-political-ads-on-social-media-48-hours-befor e-polls/

[7] https://inc42.com/buzz/general-elections-2019-social-media-to-follow-model-code-of-conduct/

[8] https://eci.gov.in/files/file/9509-general-election-to-17th-lok-sabha-2019-and-state-legislative-assembli es-%09of-andhra-pradesh-arunachal-pradesh-odisha-and-sikkim-2019-media-coverage-during-the-perio d-referred-to-in-section-126-of-rp-act-1951/

TikTok Controversy in India: Reasons behind imposing Ban and then Lifting up the Ban

The most popular video-sharing app TikTok, is presently trending in India for an altogether different reason. For those who dont know, TikTok is a Social Media Platform, owned by Byte-dance Company, the same company which also owned similar app named Musical.ly. TikTok grabbed a lot of eyeballs  last week, due to the Ban imposed on it by the Hon’ble Madras High Court on April 03, 2019.

TikTok has over 5.4 Crore users in India and globally, it has been used by more than 800 Million users presently. According to Google Play Store download stats, TikTok was downloaded 9 million times over October 2018. TikTok brought in $3.5 million in revenue over 2017, 42% of which came from the US, 39% from China (excluding Chinese Android users).[1] Also, it has been ranked third in the World as of 2019 and the fourth most downloaded app in the world.

 What is TikTok?

TikTok is a video-sharing app that allows users to create and share 15-second videos, on any topic. TikTok users use the app largely to create, share, and view content based around lip syncing, dancing, comedy skits, and other physical activities. Clearly, this is something that appeals to young people (and quite a few older ones) around the world.

Partnerships by Celebrities, making the app popular:

This App is liked and also used by numerous celebrities, such as Jimmy Fallon, Cardi B, Nick Jonas, Aashika Bhatia, Jannat Zubair, etc. The App also offers paid partnership to celebrities, to encourage or boost the App to the local audiences.

In November 2018, Celebrity Jimmy Fallon started a Challenges section following his paid partnership with TikTok. He started the Tumbleweed Challenge on TikTok, in which a person has to roll like tumbleweed. The challenge went viral within a week and it grabbed 10.4 million engagements.

The Celebrity Partnership has been a key strategy to expand the business around the world. It uses celebrities to promote the app as well as the content of TikTok. These celebs not only post the content on this app, but also stimulate the app on other social media platforms such as Facebook, Instagram, etc.

Reasons on Imposing the Ban:

In the past few days, TikTok has been on fire due to some gross incidents that took place around the world. First in this list is the case of Mohammad Salman, a 19- year- old boy from Delhi, who was shot by his friend Suhail Malik, while making a video for TikTok. Another incident which is reported and also increased the anger for the video sharing application is, in the Month of February three students of Tamil Nadu while riding a scooter met with an accident and rammed into a bus. It eventually turned out that the accident occurred, while the making of video for TikTok.

Furthermore, in Punjab, a man  who was trying to make a video on the platform during which he attempted to get on a moving tractor. But as fate would have it, his foot slipped and he ended up under the tire of the tractor and then eventually lost his life after getting stuck in the cultivator machine stuck to the tractor. Another incident happened in Chennai, where a man was trying to act of (slitting of throat) on camera and accidentally he ended up actually slitting his throat in real. That man also tried to stop the bleeding, but eventually lost his life.

Another major  reason to ban this app was, it encouraged the inappropriate or sexually explicit content. It is a known fact that TikTok is very famous amongst youngsters and it will and it is harming the mental status of children.

Due to these reasons, Google and Apple stores also pulled out the TikTok App from their respective app stores.

What made the Hon’ble Madras Court lift up the Ban?

After the decision of putting the ban on TikTok, the owner of this app Byte-Dance Company filed an appeal to reverse this decision. TikTok owner stated that, after the ban, the company suffered the losses of $500,000 in a day and putting more than 250 jobs at risk.[2] He also stated that, there was a titchy portion of inappropriate content on the app.

On behalf of the company, a spokesperson stated that, there are certain steps which they will take to revamp the app in an appropriate manner and in accordance with the law. Three very important steps adopted by the company are Filter Comments, Anti-Bullying Guidelines, and Vigil App integration.

The filter comments part deals with a proprietary filter for every user, who could choose up to 30 customized words to ban such terms from being used by other users, as comments on their content. The anti-bullying guidelines, meanwhile, fall under the purview of general user guidelines and easy to access helplines that TikTok extended to its users, after questions about its impact on mental health came to the fore. Alongside offering general user guidance for conduct on the platform, TikTok also introduced an easier way for users to report content, and claimed that it increased the level of vigilance in terms of quality control on its platform.

The third step is linked to the ongoing Lok Sabha elections in India, where politically inclined hate speech, propaganda and other messages could be reported and taken down on the platform. This, too, was put in place to help users and authorities report on political content, as the platform looked to increase its credibility. 

Eventually, The Madras High Court bench on Wednesday lifted its ban on Chinese social media app TikTok with the condition that the platform should not be used to host obscene videos.

Conclusion:

In a nutshell, with the ban now lifted, this video sharing Application will now be available on platforms like Google and IOS. This app was always available from the third party websites, even during the ban; people were able to download and share the content on the app. Apps like Viva video, Dubsmash, Snapchat, Vigo video, TikTok,  video streaming platforms like Dailymotion, and games like PUBG and GTA are very famous amongst the Youngsters. These apps are two faced, on one side they provide unlimited entertainment and craziness and on the other they are actually encouraging the inappropriate content, violence, abuse, harassment and also political propagandas, by making it accessible it on the app. This type of contents are eventually harming the mental health of the youngsters and even  expands the possibility of all sorts of crimes. While Games like PUBG and GTA have all sort of violence which are ideally not fit for children below a certain age (not capable of understanding the difference between real life and Games), unaware of the consequences that they could suffer if they do in real life what they do in Games. On same page  video apps like TikTok, Vigo Video are encouraging nudity , sexually explicit content as content which should ideally be treated as ( Adult) is shared freely across the world, seen by everyone without any age filter. There are also instances of under age children sharing their obscene content on these platforms. This is a issue much more important than what it is actually considered. Such apps could be used to spread all kinds of nuisance for eg. Blasphemous content, seditious content, content spreading religious violence and also political propaganda. From our viewpoint, it has been suggested that it is high time that these Apps realize the consequences of thir actions and instead of finding cheap ways to gain popularity, should adopt  self regulation process such as Auto-Filter, Report as Abuse, and Report as inappropriate content, so that such content video, image etc can be eliminated from the list.

Author: Mr. Shubham Borkar, Senior Associate – Litigation and Business Development  and Co- Author- Vaishvi Khare  , at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at shubham@khuranaandkhurana.com or at www.linkedin.com/in/shubhamborkar.

References:

[1] Mansoor Iqbal, TikTok and its Usage Statistics 2019 (April 29, 2019 and 09:54 P.M), https://www.businessofapps.com

[2] Prabhjote Gill, TikTok Ban lifted in India (April 29, 2019 and 3:01 P.M), https://wwwbusinessinsider.com

Asian Innovation Surge



Patents have an incorrect notion of secrecy attached to them. Patents do not provide secrecy, for the same reason Coca Cola recipe till date has not been patented. As the lore goes, the original formula was patented in 1893 however the modified one has not been patented simply because patents provide protection for a limited time period.

Having said that lets have a look at the brief overview of benefits of patents and what motivates or demotivates innovators towards a patent protection. Patents provide the applicant or the inventor certain rights over their invention, these rights are legal and financial in nature. Legal enforcement of these rights prohibits others from copying, manufacturing, selling or importing the invention whereas financial enforcement lets the applicant or the innovator derive some sort of Licensing deal or financial gain in terms of royalty being paid to them for use of their patented innovation. Patents however additionally embolden the innovators in terms of strengthening the innovators market position, negotiation power and also a positive image to their organisation/company as patented innovations project an image of expertise, strong technological capacity within the company.

In addition to the registration/application/filing of a patent being a financial cost for the innovator, one of the disadvantages which might not even be considered as one by some is that in return for these rights, protection offered is limited to 20 years. An innovator might also need to be ready to defend their patent and remember to timely process the additional cost of patent annuity fee, also the cost incurred while enforcing rights on the infringer is again a slight disadvantage for some smaller businesses.

If we look at the number of filings from year 2007 to 2017, we can calculate the average growth rate, which shows the trends of patent filing in terms of the different regions. As per the “World Intellectual Property Indicators 2018” report, Patent applications filed worldwide reached 3.17 million in 2017.

As per the report the patent filing in numbers has increased every year since 2003, with the exception of 2009 when there was a decrease of about 3.8% as a result of the financial crisis. The office of India granted 50% more patents in 2017 than in 2016.

It is also noteworthy that China has changed the system followed for counting the total number of patent applications filed, hence their data after 2017 is not comparable to the data from prior years. Since 2017, China has started to count only those applications for which the office has received the necessary application fees. This type of change though causes some minute discrepancy, however the long term growth from 2007 to 2017 is not affected by this as much as the impact is very limited. Chinese telecommunication giant Huawei filed a behemoth number of patents in one year, patents filed by Huawei were 5,405 in 2018.

As per the recent trend in filings, Asia has shown the highest increase in the average growth from 2007 to 2017. Broadly speaking one can say that there is  a new shift of innovation from the west to the east. Higher number of patent applications filed by an organisation like Huawei showcases Huaweis’ higher R&D investment. More focus on R&D for organizations promotes innovation and growth. Patents also help bring investments, economic growth and sharing of knowledge, these factors ultimately lead to economic benefits along with the promotion of innovation.

In the words of Mark Blaxill and Ralph Eckardt -Innovation without protection is Philanthropy. The quote above is an apt description of the necessity of patents and the reason why much more competitive Asian countries have shown such higher growth rates over the course of the past decade. Such a paradigm shift promises better economic benefits for the Asian region as a whole. Countries like India, Republic of Korea have shown tremendous growth in terms of patent applications and grants. Few of the fields with the most number of patents filed are Medical Technology, Digital/Computer Technology, Electrical machinery/apparatus, Energy and Transport, Biotechnology and Pharmaceuticals. These fields help understand the direction of innovation as a long term phenomenon for mankind and what we can expect in the near future to come. This increase in competition from the east to west if nothing acts like a healthy competition fueling both sides for further innovation and its vast benefits.

Author:  Dhruv Verma, Associate at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at dhruv@iiprd.com.

References:

[1] https://www.epo.org/news-issues/news/2019/20190312.html

[2] https://www.wipo.int/sme/en/ip_business/importance/reasons.htm

[3] https://www.wipo.int/edocs/pubdocs/en/wipo_pub_941_2018.pdf



Whether state is an abettor in Alcohol related crimes ?

The State As An Abettor In Alcohol-Related Crimes

The Hon’ble High Court of Madras is currently dealing with a very interesting issue “Whether the State Government is an abettor in the alcohol-related crimes or not?” Let’s see what the judges had to say about this thought-provoking issue,

Justice N Anand Venkatesh  highlighted in an order that, “the State cannot wash its hand from the adverse effects of its policy of selling liquor to its own people” and suggested the government should pay the compensation to victims of offences committed, under the influence of alcohol. 

With the same token, the other judges commented that, there should be immediate steps to curb this peril. Likewise, the court wants to make the government also responsible for each and every one of the offence that is committed under the influence of alcohol. Before going into the details, let us first understand some of the terms which are discussed hereinabove:

Who is an Abettor?

According to Section 108 Indian Penal Code, 1860 (herein referred as IPC): An abettor is a person who abets either the commission of an offence or the commission of an act, which would be an offence, if committed by a person capable by law committing that offence with the same intention or knowledge as that of the abettor.

In layman terms, an Abettor can be understood as a person who directly encourages another person to commit a crime and is guilty of provoking the other person.

I would like to cite a judgment to clarify the concept of “Abettor”:

The Hon’ble Madras High Court passed an order in a bail plea arising out of the drunken state of a person, who committed suicide. The Hon’ble Court quoted that “Section 107 IPC which talks about instigating a person to commit an offence, will precisely apply to the Government in this matter.” This verdict was based upon a rationale that, the Government is very well aware of the repercussions of alcohol upon its citizens. Hence, the principle of Res Ipsa Loquitur[1] must be applicable in these kinds of matters.

So, the analogy that is drawn from the above verdict is thatthe State can be an abettor who is instigating or encouraging the citizens in an indirect manner, by selling liquor in an unprecedented way. The government exactly knows the cons of the consumption of alcohol, and still, the State is availing the liquor to the public.

What do you mean by Alcohol -related Crimes?

Alcohol plays a major role in the commission of the offences and violence. The habit of excessive drinking has the ability to lower apprehension, and impairs a person’s judgment which increases the aggressive behavior. This is the main reason for an increase in the rate of alcohol- related crimes.

Alcohol offence is Jaqen, H’gar ( aka the faceless man[2]) and can therefore surface in many faces only common thing “ Valar Morghulis”  influence of alcohol .

  • Robbery
  • Rape
  • Assault
  • Murder
  • Domestic Violence
  • Child Abuse
  • Kidnapping

Recently in Raipur, Over 1,500 women and men attended the state-level convention on the Harmful effects of drinking alcohol. The speakers of the convention recite the data of National Crime Records Bureau (NCRB), and stated: “70-85% women are addressing the alcohol-related crimes, due to the excessive intake of liquor by people.”

A survey conducted by the NCRB shows 2,026 girls and women in 2014 were sexually exploited, 1,423 were kidnapped, 1,286 were raped, 11,206 faced different form of violence and crime.[3]

As you all are now aware of the above two concepts, let us discuss and understand how strong the argument is “State is an abettor in the commission of alcohol- related crimes”:

State Government has the authority to sell liquor under List II, Seventh Schedule of the Indian Constitution. The State Government is very much relying now, on the revenue coming from the sale of liquor. Also, roughly one-fifth of most State government budgets are funded by booze.[4]

The alcohol revenue takes the second, third or fourth position in terms of contribution in Government’s cash box, with the anomaly of Gujarat, Mizoram, Nagaland, and Bihar, where the alcohol is officially banned. Take, Tamil Nadu, for instance; in the last financial year, the Tamil Nadu State Marketing Corporation (Tasmac), the government-owned IMFL monopoly, alone paid a whopping Rs 21,800 crore into the government kitty. In Kerala, where 22 percent of the total government revenue came from the bottle, the total excise and commercial tax revenue from alcohol were close to Rs 8,000 crore.

In States such as Tamil Nadu, Kerala, and Delhi, where the wholesale and retail liquor business is under government control, alcohol revenue is relatively easy to reckon. In Andhra Pradesh, Orissa, Bihar, Chhattisgarh, Rajasthan, Uttarakhand, Uttar Pradesh, Karnataka and Bihar, governments run the wholesale business, leaving retail to private players. Maharashtra’s liquor business is in private hands. Liquor provides 20 percent of the share of the government’s own revenue in most States. In Kerala, it is now 22-23 percent, rising gradually from 15 percent over the past quarter century.[5]

In Karnataka, where the government is in the wholesale business, Excise revenue is currently 20 percent of State revenue. West Bengal’s Excise revenue in the last financial year was Rs 2,600 crore, up from the previous year’s Rs 2,100 crore. Viewed against the State’s total revenue collection of Rs 32,000 crore in 2012-13, the Excise collection was only around 7 percent. However, the Excise figures alone do not show the whole picture as industry estimates that the sales tax on potable alcohol last year was Rs 1,400 crore.

Thus, from my viewpoint, India could be considered as a heavy drinking Country, due to the fact, more than one-fifth of alcohol produced in the world is consumed by Indians. As the sale of liquor is controlled by the State Government, the State could have been more diligent in the distribution of alcohol, rather than increasing the collection of revenue.

Suggestions:

After realizing the amount of Tax that is collected on Alcohol, we clearly understand banning alcohol ( as already done by some states) would never be a economically viable option, then what, we can still stil check and regulate the present heavily unregulated, loosely controlled sale. The State Government should regulate the distribution of liquor in a meticulous manner, by providing Alcohol ID Cards, which could be only availed by the people, who is above the prescribed drinking age. Likewise, the Army canteens provide an Identity card to their officers for the purpose of purchasing goods and even liquor, the Army has put a check in purchasing of alcohol, so that the officers can maintain their capability and fitness. Then, why can’t the Government apply this system in the process of selling liquor to the people?

The State should regulate the timings for the sale of liquor and put the check on availability of liquor, beyond the prescribed timings. Additionally, the State should modulate the shops of liquor on highways, so that they cannot provide the alcohol to people who are travelling. It is also suggested that, there should be a parameter in providing liquor to the people, meaning thereby, whenever a person is approaching the shopkeeper for the purpose of consuming liquor, that person should be tested through some device as to know, how much the person is drunk and accordingly, he/she will be provided with additional liquor.

These are some of various simple implementation methods of controlling Alcohol Related Crimes, We are always open to suggestions, please provide methods which as per you are better ways to achieve the goal.

Author: Mr. Shubham Borkar, Senior Associate – Litigation and Business Development  and Vaishvi Khare
– Intern, at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at shubham@khuranaandkhurana. om or at www.linkedin.com/in/shubhamborkar.

References:

[1] Mere occurrence of some types of accident is sufficient to impose negligence.

[2] Game of Thrones

[3] Times of India, 85% crime against women due to alcoholism: NCRB (April 25, 2019), https://www.timesofindia.indiatimes.com

[4] The Hindu, The Alcohol Economy (April 25, 2019), https://www.thehindubusinessline.com

[5] The Hindu, The Alcohol Economy (April 25, 2019), https://www.thehindubusinessline.com



Step by Step Guide to Crash a Flying Jet ( Lessons not to be Learnt)

Saints, Pastors, Gurus have toiled their whole lives to reveal this secret, but after few hours of thorough studies, immaculate research, and unprecedented hard work, we have done it! We present to you “ A Step by Step Guide to Crash a Flying Jet”. Yes folks you heard it right, not just a plane you can even crash a complete whole airline service using these steps, all thanks to our superior enlightening Indian roots and circumambience. Crashing an airline business is a cooperative effort and takes a lot of hard work, and hence each player should perform their part correctly otherwise an airline business might just survive and we don’t want that do we!

Steps to take as a government

1. Make sure that the Airlines regulation process is as opaque is possible because if its transparent, people will see you change your clothes and they can object to what you decide to wear or suggest something better to wear. Hence, just give too much discretion to DGCA, civil servants, and politicians, sit back and enjoy.

2. Ensure you don’t have enough land infrastructures by keeping your already existing airports under capacitated and certainly forget about building new ones. One runway for Mumbai Airport and three for Delhi are more than enough to handle the aviation market in a country with population of 1.3 billion. Leave the market underpenetrated with less than required commercial aircrafts, 565 is the present number. They are waste of time and resources anyway. You know why?[1]

3. Because as a government you should still be under the impression that civil aviation is a luxury market as we should strive to live in the era we achieved independence it was clearly a better time than the present.[2]

4. Air travel is a luxury that’s utilised by rich capitalist pigs ( who doesn’t give a damn) so aviation fuel should be taxed at a higher rate, as should be the case with air tickets to ensure these capitalist pigs have to pay more. [3]

5. You can allow the other associated industries such as hotel industry, taxi industry, catering industry, airplane manufacturers, and oil co, airport co. to get rich but ensure airlines keep getting poorer.[4]

6. Make sure you bail out only PSUs engaged in aviation business but not any private airline. Otherwise, Armageddon could present it upon us.

     Steps to take as an Airlines Service Industry

1. Despite having unprecedented annual growth of 20% in the Indian aviation market in the last 4 years have reckless competition and paper thin margins due to high cost of aviation turbine fuel along with high taxes and surcharges imposed by the government. See government is helping you.

2. Make sure you focus on short term growth rather than economic viability. Despite having high functioning cost due to factors like ATF prices, landing and navigation charges etc., reduce the fares to increase stimulate growth.[5]

3. Incept the minds of whole airline service industry Christopher Nolan style to induct around 800 airplanes in next 5-6 years so they are interested in increasing market growth by cheap fare rates even if it means barely breaking,

4. Give out bonuses, perks, hefty pay checks and all sorts of luxury to your staff, even though you are drowning in debt.

5. Without even first clearing your aircrafts from DGCA, import and recruit Expert foreign pilots ( expensive)in order to expand your international flight business, Planes are configured or not, All permissions are taken or not, these points should hardly bother you[6]

6. So don’t aim for profits aim for profits are a sham!

Steps to take in your specific airline policies

1. Focus on international flights rather than domestic flights despite having terrible Rupee to Dollar currency exchange rate. We repeat DO NOT!!! Do not increase ticket fairs despite steady rise in Aviation fuel prices and operational costs just to follow low cost model (that you need to follow because of entry of low-budget airlines since 2000s).

2. Remember “ADAPT OR PERISH!” is fake news so adapting to changing circumstances is for the weak. So, keep being full service airlines offering free meals and on-board entertainment while consumers refuse to pay for them in case of other budget airlines. Also, keep the first class seats in your aircraft, there is a reason other airlines are getting rid of them, the reason is they all are dumb. Indians will appreciate your superior quality, it’s not just about saving money that’s important for them (LOL).

3. Government schemes like UDAN-RCS, UDAN (Ude Desh ka Aam Naagrik scheme) are for noobs ignore them. Have fewer flights in those routes included in the scheme, because incentives and exemptions are for amateurs.

4. History doesn’t repeat itself. So, don’t learn anything from the past experience of airlines that crashed like Kingfisher, Air Deccan, and Air Sahara. Follow their footsteps and expect different result, as only then people would appreciate you.

5. We have known from ancient times ‘Money is the root of all evil’ and ‘paisa to haath ka mail hai’ as they say, so engage in wasteful spending. Make sure that to crash your airlines you buy other crashing airlines at an inordinate price. If you doubt this method just look at proven instances where Kingfisher bought Air Deccan and now Jet Airways purchase of Air Sahara.

6. Don’t pay the salaries of your employees on time or rather better don’t pay them at all, they should be just glad that you have given them the gift of employment. This will increase their moral, they will work harder, and won’t leave your company to join others as nobody needs to feed their family, pay their rent, school fees for kids, or house loan instalments such things are myths.

7. Focus just on corporate consumers common people can either walk to their destinations or be consumers of other airlines. No compromises!

8. Despite having small fleet, have a mixed fleet of aircrafts rather than having aircrafts of same make as it will increase the cost of resources required, you should constantly try to increase your cost of resources.

9. Build palace of wings rather than a cottage, Indians love grandeur. So, be stubborn and have much less seats in your airplanes than the international standards.

Steps to take as management of Airlines

1. Be a good entrepreneur but confuse being a good entrepreneur with being a good manager. Let’s call this entrepreneur as Garesh Noyal. Mr. Garesh Noyal shouldn’t listen to his financial advisers and other expert management as they just have the degrees and experience in the relevant field, always listen to your heart as business is all about making emotional decisions.

2. Mr. Garesh Noyal must be control freak and should kick every opportunity of reviving the airlines into dustbin like how Germany kicked Brazil 7-1 in 2014 FIFA World Cup. Say you get an opportunity to offload costly A330-200s to several potential buyers, kick it straight to dustbin, boom GOAL!!! *DJ Airhone flares*[7]. Say you get an opportunity to sell your entire ATR fleet causing you annual loss of over $100 million, kick it straight to dustbin, boom GOAL!!! *DJ Airhone flares again*[8].

3. Have an investor for example let us give them a fictional name Etimad Airtrays who is unwilling and disinterested to invest as they don’t trust in the profitability of oldest private airlines in India. This can be ensured by Mr. Garesh Noyal deliberating moving airlines global hub to let’s say Amstradam from Brussels.

4. Make sure that such Garesh Noyal tussles with other investor like Etimad Airtrays for control of company even when the future of company is at risk.

5. Mr. Garesh Noyal should ensure that his promoter’s share doesn’t decrease even if it means losing investors. Mr. Garesh Noyal shouldn’t resign till the very moment Titanic hit the iceberg and holes have been drilled in all life boats.

6. Mr. Garesh Noyal should also ensure that he fails to find a strategic investor to pump money into the carrier extended the airline’s losses and ensure you fend off any interested investors let’s call them aTaT group.

Disclaimer: The story, all names, characters, and incidents portrayed in this production are fictitious. No identification with actual persons (living or deceased), places, buildings, and products is intended or should be inferred.

Just kidding, of course infer it, we don’t care it’s a news analysis piece for God Sake.

Author: Mr. Shubham Borkar, Senior Associate – Litigation and Business Development  and Nitish Daniel – Intern, at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at shubham@khuranaandkhurana.com or at www.linkedin.com/in/shubhamborkar.

References:

[1] Major Airports in US have 6-7 Runways each, they have over 7000 commercial planes , by the way  population of US is just 32 Crore.

[2] ( major low cost airlines) Indigo and Spice Jet have 85 and 70% domestic flights respectively

[3] A combined State and Central tax on Aviation Turbine Fuel ( ATF) is between 35 to 40% whereas the maximum GST rate is only 28%.

[4] A major share of you ticket ultimately goes to the Airports.

[5]  Jet Airways( full service Aviation company) facing reckless competition significantly reduced it cost to match ( low cost airlines)like Spice, Indigo etc.

[6] Kingfisher Airlines did the same

[7] https://www.youtube.com/watch?v=OFr74zI1LBM

[8] https://www.youtube.com/watch?v=OFr74zI1LBM

FSSAI Regulations With Respect To Statutory Warning On Liquors



FSSAI REGULATIONS WITH RESPECT TO STATUTORY WARNING ON LIQUORS

Recently a draft with respect to Food Safety and Standards (Alcohol Beverages Standards) Regulations, 2016 was published as the requirement mentioned under sub- section (1) of Section 92 of the Food Safety and Standards Act, 2006. 

The Food Safety and Standards Authority of India is the apex body as far as food laws in the country are concerned which has initiated several strict measures in order to implement proper food safety regulations and policies in the food industry. The main objective of FSSAI is to regulate the food business in such a way as to take care of public health and safety for all purposes. FSSAI has been involved in routine inspections of food businesses in order to check registration and license with respect to FSSAI. The Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 has standard for only toddy in the form of alcohol beverages which is mentioned in clause (1) of the sub regulations 2.10.5 which has been related to the alcohol beverages. As various alcohol beverages have their different requirements with respect to their standards and labeling patterns, a separate regulation for alcohol beverages was proposed and notified. 

In a report published in the year 2017, World Health Organization stated that Labeling of alcoholic product can be considered as one of the important component of public health strategy in order to reduce the harm caused by alcohol. In order to establish a better social understanding it is very important to state the health related issues in the form of labels on the alcohol beverages. BMC Public Health department conducted a study in the year 2014 in which it has concluded that “Cancer warning statements on alcohol beverages increases awareness among the people consuming it”.

There are laws with respect to safeguards and health measures for all citizens in the country. Article 47 of Indian Constitution under Directive Principles of State Policy states that the state has a duty to raise the standard of living, level of nutrition and improvement with respect to the public health as it is the primary duty of the state. It has also been stated that the state shall endeavor to bring prohibition on the consumption except in the medical cases of intoxicating drinks and drugs which are considered to be injurious to health.

As per the guidelines of WHO the spirits have a maximum alcohol content of 42.8% but on comparison the country spirits are said to be stronger as its alcohol content is said to be around 50%. The FSSAI as per now didn’t have any standards to regulate the country spirits alcohol strength. Alcohol is not the only product which is required to carry statutory warning. The Cigarettes (Regulation of production, distribution and Supply) Act 1975 makes it mandatory for the cigarettes manufacturer and tobacco companies to provide a clear statutory warning on the packets containing cigarettes. In Murli S Deora v. Union of India[1] the Supreme Court prohibited smoking of cigarettes at public places such as hospitals, auditoriums, schools, colleges etc. Furthermore the Hon’ble Supreme Court stated that ‘Tobacco is regarded as one of the most dangerous public health hazards universally which is responsible for approximately 8 lakh deaths annually.

STATUTORY WARNING LABELS ON ALCOHOL BOTTLES IN INDIA

The Food Safety and Standards (Alcohol Beverages) Regulations, 2018 make it mandatory for the manufacturers of alcohol to carry a statutory warning that “Consumption of alcohol is injurious to health”. Along with this the liquor bottle must also carry “Don’t drink and drive” on its label. The direction has been passed under Section 16(5) of Foods Safety and Standards Act. The new rule will come into enforcement from 1st April, 2019. This development follows an order passed by Delhi High Court on petition filed by the NGO community against drink and driving. Drinking and driving is considered to be an intentional crime and it must be treated as a pre-mediated criminal activity as the person who is driving the car is very well aware of the fact that in such case accident can be caused which can lead to significant harm to him and others also. The data of India’s Union Ministry of Road, Transport and Highways stated that the drunk and drive accounts for approximately 4.8% of total accidents in every year. It has been observed that in such cases more than 70% of victims are said to be perished. The same shall apply to all distilled alcohol beverages which includes rum, vodka, whiskey, brandy, country liquor and gin. A six month time period has been provided to the manufacturers for use of both “printed cans and unused labels”. It has been also been provided that there must be specific requirement for labeling of alcohol beverages in addition to the labeling provided and mentioned by Food Safety and Standards Regulations, 2011. If the alcohol content is more than 0.5% then in such case the specific labeling will have to included to mention  the volume of the alcohol content, labeling of standard drinking, and the same must not include any nutritional information and health claims and restrictions imposed on the words such as ‘non-intoxicating’ or synonyms of such meanings.

Many wine bases products have mandatory regulations which indicates the country of origin, its sugar quantity, the type of grape or fruit which has been used along with the name of residues of preservatives or additives added or present in it.  Also some other labeling requirements of alcohol beverages include the description of the generic name of the variety of grape and raw material used in making the final product. If in case any food product contains alcohol within it then in such cases it must be represented accurately that the product contains alcohol. All liquor bottles need to comply with the specific labeling requirements along with the general labeling provisions which had been specified by the Food Safety and Standards (Packaging and Labeling).

ALCOHOL STATUTORY WARNING REGULATIONS IN OTHER COUNTRIES

India is not  the first country which has implemented such mandatory labeling provision with respect to Alcohol labeling. In Australia, the manufacturers of alcohol are required to put warning labels with respect to drinking alcohol during the period of pregnancy[2]. In Ireland due to the influence of Irish Cancer Society the government is required to put warning labels describing the alcohol’s carcinogenic properties[3]. Since 1989, USA has laid several emphasis on the warning labels on alcohol beverages[4]. The alcohol manufacturers in USA are required to warn about the risk of drinking and driving, operating some kind of machinery while drinking, and the harms of drinking when pregnant. In Thailand, under Section 32 of the law, the alcohol beverages are not required to be advertised in such a manner that it directly or indirectly claims the benefits arising from having alcohol. According to their law, the declaration which is issued as per the order of the act needs to be accompanied by at least one out of five predefined statutory warning[5]

CRITERIA REGARDING STATUTORY WARNING

The notification issued by FSSAI has mandated the liquor industry to carry

  1. Such warnings in a square shaped box on the same lines as that of the tobacco industry.
  2. The font size for the same must not be less than 3 mm,
  3. It must be  in English language.

(In the 13th meeting of Scientific Panel on water and beverages, a recommendation was being made by the panel with respect to the font size of statutory warning on alcohol beverages and according to the regulators specifications, the bottles of up to 200 ml must carry a labeled warning in capital letters and the same should not be higher than 1.5 mm, on the other hand the bottles which are larger than 200 ml must carry letters 3 mm high.)

 It has also been stated that if any state wishes to print such statutory warning in their respective local or regional language then the same must be allowed and in such cases there is no need to repeat the English version of the statutory warning. This is an attempt in order to make people more aware of the harmful effects of drinking alcohol beverages on their health. However as the manufacturers used to follow the excise laws and standards which are set up by the Bureau of Indian Standards due to which no label were been created by the act.

  • Alcohol beverage which contains less than 10% of alcohol that are other then the wine must mention the date, month, and year of expiry on the label.
  • In case if the wine contains more than 10mg sulfur dioxide per litre then the label must need to declare that it contains sulfur dioxide or contains sulfite.
  • Furthermore if the wine contains ingredients such as egg white or any processing aid of animal origin then it must be mentioned in the form of label with a non vegetarian logo. 

The notification that has been issued by FSSAI has also stated that it has been decided to defer implementation of parameters with respect to yeast in certain categories of beers. There are also certain modifications with regard to various specific provisions for alcohol beverages such as the tolerance limit prescribed for ethyl alcohol, the regulations which are specified for the low alcohol beverages, the entry of new type of Indian Brandy, regulations with regard to malt whiskey and dry wine etc. In the year 2017, a PIL was filed by Prince Singhal against the drunk and drive scenario in which Delhi High Court seeking direction from FSSAI with regard to the mention of the statutory warning on the alcohol beverages. Countries such as USA, South Africa, Mexico, Turkey etc had implemented such regulations.

TREATMENT OF EXISTING LIQUOR LABELS

The regulation with respect to statutory warning has been enforced by the FSSAI on the liquor bottles. A prescribed time limit of 6 months has been provided to all the liquor manufacturers for using the labels which are still in existence and printed cans of existing alcohol beverages. FSSAI has stated that the alcohol that has been manufactured before 1st April, 2019 can be allowed to be sold in the market up to 31st March, 2020. This decision has been taken purely in the interest of public health and safety. All the liquor manufacturers and dealers must need to posses registration or license of FSSAI with respect to their scale of operation.

CAN THIS BE EXTENDED TO PLAIN PACKAGING IN NEAR FUTURE

Plain Packaging means selling of a products in the form of standardized or generic packets without adding any kind of attractive trademark, logos or brand names or colours. The brand name must be substituted by some sort of health warnings. Australia is the first country which has passed the plain packaging law in the form of Tobacco Plain Packaging Act, 2011. In India 75% of tobacco products are sold without any enforcement mechanism to check implementation of such type of practices. The concept of plain packaging can be applied in the cases of alcohol as well, but the introduction of plain packaging, will definitely lead to violation of the rights guaranteed under the Trademark Act. One of the biggest cons of plain packaging on IPR is that it will led to the increase of counterfeiting products in the market because there will be no brand recognition on the products. It can lead to the sale of more poor quality products which will in turn cause more harm to the consumers as compared to the original one. Also the amount spend by the Alcohol manufacturing companies on advertisements and publicity of the products and there brand names will be relinquished and further it will lead to the IPR attorney without clients. Not only this, the plain packaging deprives the manufacturer of their Intellectual Property Rights which will further violate the International Standards which are associated with Intellectual Property Rights.. Therefore, there is a clear No No as far as Plain Packaging is considered

CONCLUSION

There are statutory warnings on both alcohol and cigarettes, but it only mentions that ‘Alcohol consumption is injurious for heath’ and ‘Smoking is injurious’ to health. The users who are having it most probably know that consumption of such products is likely to be injurious to the health but it is not a sufficient step in order to reduce its consumption. In order to reduce the consumption of alcohol it must be shown in the statutory warning that which parts of the body it affects the most, which major disease it can cause, death toll in the country, and some pictures of the affected people or their body parts. As sometimes visuals can do what words could not.

Author: Mr. Shubham Borkar, Senior Associate – Litigation and Business Development and Manuraj Parmar – Intern, at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at shubham@khuranaandkhurana.com or at  www.linkedin.com/in/shubhamborkar.

References:

[1] (2001) 8 SCC 765; AIR 2002 SC 40; 2002 (1) ALD 88 SC; 2001 (6) ALT 35 SC

[2] “Mandatory warning labels to be introduced on alcohol”. Food & Drink Business. 15 October 2018.

[3] Finn, Christina. “Irish Cancer Society urges minister not to drop proposed cancer warning labels on alcohol products”. TheJournal.ie.

[4] Boyle, Peter; Boffetta, Paolo; Lowenfels, Albert B.; Burns, Harry; Brawley, Otis (2013). Alcohol: Science, Policy and Public Health. Oxford University Press. p. 391. ISBN 9780199655786.

[5] Alcohol Control Act B.E. 2551 (2008)” (PDF). The Office of Alcohol Control Committee. Government of Thailand. Retrieved 12 September 2017.



Fate of PM Narendra Modi



Directed by Omung Kumar, this upcoming Indian biographical movie ‘PM Narendra Modi : Story of a Billion People’ which has been produced by various Producers namely, Suresh Oberoi, Sandip Ssingh, Anand Pandit, Archana Manish and Zafar Mehdi is currently facing controversies  during Lok Sabha Elections, 2019.

It all started when the official trailer of the movie was released on 20 March 2019. The oppositions strongly oppose the release of the movie in theaters till the elections are completed as they call this movie a ‘Political Propaganda’ and that this mainly violates the Model Code of Conduct (MCC) issued by the ECI (Election Commission of India).

MCC is the guidelines by the Election Commission of India. This directs the conduct of political parties and candidates during elections mainly with respect to speeches, polling day, polling booths, portfolios, election manifestos, processions and general conduct. This is done to ascertain that the ruling parties whether at the Centre or at the State do not abuse their position of power to get an unfair advantage. The MCC comes into force instantly after the announcement of the election schedule by ECI. And for the 2019 Indian general election, the code came into effect on 10 March 2019 and will remain so till the end of the electoral process.

Petitions were filed in many of the High Courts of India either for postponing the date of release or for banning the movie saying that  due to this movie, the “Bharatiya Janta Party”(BJP) can get  unfair advantage in general elections which is prohibited as per the electoral laws. Delhi High Court and Bombay High Court rejected the petitions filed against the release mainly on the grounds that the CBFC (Central Board of Film Certification) is the authority responsible for approval of movie releases and the ECI had already issued a notice to the producers warning them not to violate the MCC. Having no option left, the doors of the Supreme Court were knocked.

The Special Leave Petition was filed and on 4 April 2019, it was contended that the Hon’ble High Court has not considered all the important factors. Senior Advocate Abhishek Manu Singhvi while mentioning the Court said that the movie is not a separate commercial program but a politically motivated propaganda spreading medium. An attempt was made to show that how the movie is made in close allies with the ruling party (BJP) as three of the four producers are members of the party. It was further argued that the movie was being promoted by the Mahrashtra CM and also by Amit Shah, the President of the BJP. Also, with regards to the certification by the  CBFC, it was contended that it’s Chairman, Prasoon Joshi is a part of the movie.

Its further contentions were that the trailer and advertisements are violating Rule 7(3) of the ‘Cable Television Networks Rules, 1994’ in which any advertisement of any political or religious nature are prohibited. Also, violation of S.126 (1) of the ‘Representation of the People Act’ is involved as the ‘silence period’ is going to start on 11 April and there is a restriction on display of election matter by any means which includes cinematograph film.

The Petitioners were seeking a direction to delay the release of the movie and also that the movie trailers and advertisements are in the violation of the MCC and other electoral laws.

The matter was next heard on 8 April in which the Hon’ble SC said any kind of order from the court will be possible if the petitioner states and pleads what the film is seeking to depict and his objections on this count, The bench said, there is no cause of action for challenging the film’s release by now to which Singhvi said, “There is no level playing field and allowing the release of the film would be a direct assault on the structure of the Constitution”. But, the matter was finally disposed off on 9 April and the court told that even if the film is released on April 11, as claimed by the Congress activist, it will be appropriate for him to seek a redressal from the Election Commission and that happened.

Election Commission on the next day deferred the release of the film till ‘further orders’. In a separate order, the poll panel also imposed a ban on public screening of “any biopic material in the nature of biography/ hagiography” which could serve the interest of a political party or candidate, while the Model Code of Conduct is in force. The EC also has stopped the screening of two more biopics, Lakshmi’s NTR on TDP founder, N T Rama Rao and Udyama Simham on Telangana Chief Minister K Chandrashekar Rao’s struggle for the separate state of Telangana. It is being said that the ‘umbrella order’ of the EC will also affect the 10-part web series Modi: Journey of a Common Man which is currently being streamed on Eros Now platforms.

The EC in its order highlighted that “under Article 324 of the Constitution, superintendence, direction and control of elections are bestowed upon the Commission and it is the duty of the Commission to take necessary measures to create a level playing field and provide a conducive electoral environment to all the stakeholders.” It also reiterated “in catena of judgments, Hon’ble Supreme Court has held and acknowledged that the Model Code of Conduct, which ensures free and fair electoral process, which is sin[e] qua non for the electoral democracy”, and said that it was of “the considered view that there is an emergent need for intervention in the matter of those ‘political contents’ which are intended for benefitting or discrediting the electoral prospect of any candidate or/ and any political party, for ensuring a level playing field”.

The EC with regards to the future complaints for violation of MCC said that a committee headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court would vet them and the names will be announced soon.

Hang on; the controversy doesn’t end here, what next can you think could have happened? Yes, the producer Sandip Ssingh has now approached the SC under Article 32 against the EC’s order contending that the order is a violation of their freedom of speech and expression. Hitesh Jain, the lawyer for the producers says that “A five-judge bench of the Supreme Court has already held that although the EC has plenary power under Article 324 of the Constitution, these powers have their limitations. When Parliament or any state legislature has already made a valid law then the EC should act in conformity with that law and it cannot transgress it. As far as film release goes, CBFC is the appropriate authority to take decisions under law.”

The question to be determined here is, “Can the EC issue such an order even if the film is certified by the CBFC?” The Supreme Court heard the matter on 15 April 2019 and had asked the EC to watch the film first and then take any decision. The EC has watched the film as of now and they had to submit their decision to the SC in a sealed cover by today i.e April 19, 2019 and the case will be heard next on 22 April.

The fate of PM Narendra Modi, the movie is looked for.

Conclusion:

The matter of concern in the current case revolves around how strong are the electoral laws and its enforcement with regards to regulation of movies, which will further open up to the laws governing digital media with respect to paid news or fake news during elections. As in one of the cases in 2018, the Delhi High Court set aside the EC’s order disqualifying one of the BJP’s Cabinet Minister on the grounds of paid news. The Hon’ble High Court held that the EC’s power is limited to Poll expenditure incurred by a candidate and not content of speech. It further observed that “the content of a media article, or a news feature or series of features on particular candidates should ordinarily not be regulated indirectly through the directives of EC; there essentially fall within the domain of free speech”. 

With this, it can be seen that the limited powers given to the election commission are being curtailed due to the lack of specific laws with respect to digital propaganda or fake/paid news and the effect of the same can be seen in the case of PM Narendra Modi.

The fate of future electoral laws is also awaited.

Author: Geet Valecha , Intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any  queries please contact/write back to us at shubham@khuranaandkhurana.com

References:

[1] https://eci.gov.in/mcc/   

[2] THE REPRESENTATION OF THE PEOPLE ACT, 1951

[3] https://www.civilserviceindia.com/current-affairs/articles/powers-of-election-commission-under-article-324.html

[4] https://www.livelaw.in/top-stories/sc-dismisses-plea-to-stay-modi-biopic-144161

[5] https://barandbench.com/blatant-disregard-for-electoral-laws-congress-spokesperson-calls-for-delayed-release-of-film-pm-narendra-modi/pm-narendra-modi-petition/

[6] https://www.businesstoday.in/lok-sabha-elections-2019/news/lok-sabha-election-2019-election-commission-blocks-release-of-pm-modi-biopic/story/335898.html

[7] https://www.asianage.com/india/all-india/110419/ec-ban-on-modi-biopic-namo-tv-to-go-off-air.html

[8] https://www.deccanherald.com/national/north-and-central/modi-biopic-sc-to-hear-on-april-15-plea-agnst-ecs-ban-728277.html

[9] https://www.thehindu.com/news/national/watch-modi-biopic-fully-this-time-sc-tells-eci/article26842031.ece



Glorification Of Stalking In Bollywood

Bollywood is world’s largest film industry in terms of films being produced per year in a  particular country which is 364 films being annually featured(2017). Since its inception from Raja Harish Chandra in the year 1913, it is the only industry in India which has never suffered losses.

But as we all know every coin has 2 sides to it, similar is the case of Bollywood. With the profits being earned by them not only is benefitting our economic status of our country but also its affecting our Social Culture. The biggest problem faced by our country is its illiteracy. Therefore, bollywood is considered to be one of major influences of societal behavior of people due to its wide reach to public. And hence alcoholism, misogyny, patriarchy, commodification of women, etc are the gift given to us by the largest fraternity of film producers in the world.

But the most dangerous amongst them is “STALKING”

The informal way in which stalking is regularly portrayed on display increases alarming questions. If the makers of Toilet feel that the film has a sturdy message against open defecation, can one expect its message is as a lot about making stalking regular or even a favored manner of wooing a female? Specifically, a movie like this one is extra than ‘entertainment’, it’s miles Entertainment-Education

As many would argue, stalking is an old Bollywood trope. The popular number ‘o laal dupatta walli, tera naam to bata’ from Aankhen was the stalking song of the 1990s.

But many popular movies from that era which had stalking as its central plot – such Darr, Anjaam, Daraar and Jeet – still maintained the semblance of a moral compass: the stalkers were accepted as villainous ‘obsessed lovers’ rather than heroes. The compass, it seems, has shifted in the last quarter.

For example in Raanjhanaa, starring Tamilian superstar Dhanush, and the 2003 film Tere Naam, starring Salman Khan. In these films, the stalkers torture and ruin their victims’ lives due to their morbid infatuation before choosing their own passionate end. Ironically, the audiences lapped up the message of selfless love and honesty of the ‘heroes’ and rooted for them. The actors’ craft created a deep sense of sympathy among viewers, edging out the fact that stalking is a purely criminal act.

Legal Aspect

Stalking is considered to be the pre- cursor to many other crimes. In California stalking was recognized as crime back in 1990 but it took us almost 68 years of Independence to recognize it was a mere crime. The Criminal Law Amendment Act, 2013 not only recognized it as a crime but also defined it in the widest way possible under section 354D of the Indian Penal Code which is as follows:

Stalking[1]

Any man who—  

  1. follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
  2. Monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking.[2]

The section as mentioned is quite wide and also describes about the punishment which can be extended up to 3-5 years of imprisonment. The main issue regarding the section was that it is a bail able offence if it is first offence. Justice Verma committee was set up to check whether the validity of the section was present or not regarding the bail ability of criminal to which the committee supported the view of Mr. Shashi Tharoor who was opined that it shouldn’t be bail able because this so called simple offence can be the root was of many other heinous crimes like murder, acid attack, rape, etc. but due to the opposition pressure the first offence was recognized to be bail able.

With development of technology this crime is not only limited to physical stalking but had also added one more facet to it which cyber stalking. In other words “Whoever monitors the use by a person of the internet, email or any other form of electronic communication that results in a fear of violence, or interferes with the mental peace of such person, commits the offence of cyber stalking.” Under section 67, 67A, 66A and 72 of the IT Act, 2000 deals with stalking and its implication and punishments.

Sandesh Baliga Case

In a sensational case from Australia in 2015, an Indian man, Sandesh Baliga, accused of stalking two women in Tasmania, successfully argued that he believed the patient pursuit of a woman would make her fall in love with him since that’s what he’d seen in Bollywood films. He also stated that he learnt the art of stalking from Shah Rukh Khan’s character in the movie Darr. This shows how much impact movies make and have in the lives of people living in not only in Indian society but also in other countries.

Pryadarshini Mattoo Case

The deceased was an aspiring lawyer studying in the prestigious Delhi University where she first met the accused Santosh Kumar Singh, who was her senior in college. He was since his first meeting with was besotted by her beauty and also made many attempts of indecent proposals to her. After sometimes her family lodged FIR against him but still he stalked her every possible where. One day her body was found strangulated at her uncle’s place. After autopsy it was found that she was raped and then murdered and the direct accuse went to her senior. But since he belonged to an influential family residing in Delhi where the incident took place he was granted parole in the year 2012 which is still continuing.

NCRB Report

According to the National Crime Records Bureau, the number of stalking cases in 2015 was 6,266. Yet, these figures likely do not capture the entire scale and horror of stalking. It has been four years since stalking was recognised as a form of violence against women under IPC Section 354D. But the crime is punishable with rigorous imprisonment for a term up to three to five years. The lack of diligent law enforcement is evident in these horrific stalking crimes. According to the NCRB a study was conducted in the Geena Davis Institute on gender media. It was concluded in that, that India is ranked very high in world cinema when it comes to sexualizing women. Also is was stated that the highest number of crimes committed against women in India is in Uttar Pradesh with about 38467 per year and the lowest being in Uttarakhand and Lakshwadweep.

Theories

In social learning theory, Albert Bandura (1977) agrees with the behaviorist learning theories of classical conditioning and operant conditioning. Individuals that are observed are called models. In society, children are surrounded by many influential models, such as parents within the family, characters on children’s TV, friends within their peer group and teachers at school. These models provide examples of behavior to observe and imitate.[3]

Cultivation theory was founded by George Gerbner and is positivistic. Cultivation theory examines the long-term effects of television. “The primary proposition of cultivation theory states that the more time people spend ‘living’ in the television world, the more likely they are to believe social reality aligns with reality portrayed on television.”[4] The images and ideological messages transmitted through popular television media heavily influence perceptions of the real world.[5]

Recommendations

  1. Filing Complain to National Commission for Women and the commission will take up the complaint to the police. The commission has been bestowed by the power to form committee in case of urgency. They can also issue summons to accused, witnesses and police reports, to facilitate inquiry. They have also provided their contact numbers at public forum so that, in case of emergency the victim can contact them as soon as possible.
  2. “Atithi Devo Bhava”- it is the slogan followed by the Ministry of tourism in India but its so shameful for us that not only Indians but also foreigners are victims of stalking. In order to protect them the ministry of Tourism in collaboration with Tata Business Support services launched Infoline in 12 different languages for making it user friendly for the foreign tourists.
  3. Online registration complaint by victims.
  4. Zero FIR- this kind of FIR can be filed at any part of India irrespective of its Jurisdiction.

Conclusion

In India stalking can either be physical or electronic via mail, social media profile, etc irrespective of the medium used it constitutes to a criminal offence with an imprisonment of min. 3 years.

Regardless of whether one is working professional or student or housewife- many women in India get stalked on regular basis. Due to the fear of being stalked many women avoid getting out of their house and become pardanashin. In order to avoid stalking women are asked to dress so called “modestly” so that they don’t cater unwanted attention or either are asked to have a male company along with them. Even after independence of 72 years why are still women being caged? Isn’t it the duty og the government to make them feel save? Isn’t duty of the Entertainment industry to make sensible movies? Isn’t the duty of CBFC to take into consideration as to what will affect the social behavior of people?

The problem isn’t that stalking is being shown on the big screen but the root cause is that it is being promoted as heroic gesture.

As discussed above in movies like Darr, Anjam, Tumsa nahi dekha,etc the stalker were shown as the villainous character in the film but from the early 2000s in movies like Sultan, Tere Naam, Raanjhanaa, Ae Dil Hain Mushkil, Rehna Hai Tere Dil mein, Toilet, etc the compass has totally shifted from villains to heroes of the movie. Therefore the rise in number of stalking cases can be seen from the early 2000s.

Hence, it is the duty of the entertainment Industry as a whole to act responsibly because they are not only the world’s biggest film fraternity but also play an important role in educating the society.

Author:  Poulomi Goswami, Intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any  queries please contact/write back to us at swapnils@khuranaandkhurana.com.

References:

[1] Criminal Law (Amendment) Act, 2013

[2] Section 354D, Indian Penal Code, 1860

[3] https://www.simplypsychology.org/bandura.html

[4]  Riddle, K. (2009). Cultivation Theory Revisited: The Impact of Childhood Television Viewing Levels on Social Reality Beliefs and Construct Accessibility in Adulthood

[5] https://en.wikipedia.org/wiki/Cultivation_theory