Libertatem Magazine - Issue 35 [December 2017]

EDITION 35 DECEMBER 2017LIBERTATEM MAGAZINE www.libertatemmagazine.comCover StoryPadmavati: Politicsbehind InterpretingIndia’s HistoryEditor’s PickIntegrity of the SCin question- CJI andPrashant Bhushan’saltercations

LIBERTATEMLibertatem Magazine - Masthead MAGAZINE www.libertatemmagazine.com Edition 35 - December 15, 2017 Masthead Editor In Chief Ankita Ranawat Pubishing Editor Rahul Ranjan VP - Editorial Operations Ritisha Mukherjee (Institute of Law, Nirma University) Advisory Editors Prof. Dr. Howard Williamson (Univ. of South Wales) Prof. Dr. Ahmad Ghouri (Univ. of Sussex) Dr. A. Lakshminath (Chanakya National Law Univ.) Prof. T. Sathyamurthy (National Law School of India Univ.) Dr. Borbala Fellegi (Consultant, Social Policy, Hungary) Dr. Dabiru Patnaik (Jindal Global Law School) Shhaurya Sah (Associate, Inttl Advocare) Fr. Peter Ladis (Chanakya National Law Univ.) Editorial Associate Nada Faruqi (Aligarh Muslim University) Senior Editors Smriti Brar Swarnabh Dutta Madhav Kumar (LLM, University of Hong Kong) Associate Editors Rubel Bareja (Institute of Law, Nirma University) Rohit Yodha (Institute of Law, Nirma University) Amit Singhal (National Law Institute University, Bhopal) Apurv Taran Jain (National Law University, Odisha) Arushi Sheti (Amity Law School, Delhi) Mohd. Azeemullah (University of Al-Asmariya, Libya) Saloni Sharma (Institute of Law, Nirma University) Muskan Yadav (Institute of Law, Nirma University) Content Developers Khushbu Shah (Maharastra National Law University) Vaishakhi Mudanna (Damodaram Sanjivayya National Law University) Vaibhav Sharma (Rajiv Gandhi National University of Law) Nitya Jain (Instiitute of Law, Nirma University) Shreyan Acharya (Vivekananda Institute of Professional Studies) Shresth Vardhan (Institute of Law, Nirma University) Debajyoti Saha (School of Law, Christ University) Mohammad Azeemullah (University of Al-Asmariya, Libya) Chahat Mangtani (Institute of Law, Nirma University) Shashwat Tiwari (Institute of Law, Nirma University) VP - The Courtroom Swarnalee Haldar (Advocate) The Courtroom Reporters Jane Maria (National Law University, Odisha) Shweta Subudhi (Midnapore law college, Vidyasagar University) Desktop Publishing Design Ankita Ranawat & Rahul Ranjan © All Rights Reserved by Libertatem Media Group [2017]

Contents Contents of Edition 30 December 2017 Volume 3 Number 12 Edition 35Cover StoryPadmavati- Politics behind Interpreting India’s History (p.4)Editor’s PickIntegrity of the SC in question- CJI and Prashant Bhushan’s altercations (p.8)Legal News StoriesIndia after a Year of Demonetization (p.10)Privacy as Fundamental Right (p.12)Visionary Dream to free Politics from Crime (p.14)Sexual Harassment of Women: An Age Old Tale (p.16) 12 04 08 © All Rights Reserved by Libertatem Media Group [2017]Disclaimer - The opinion expressed in each article is the opinion of its author and does not necessarily reflect the opinion of Libertatem Media Group. Therefore, Libertatem Magazine carries no responsibility for the opinion expressed thereon.

Libertatem Magazine - Edition 35IPbneadhdiiamn’adsvHIanittsiet-orPproyrleittiicnsg By Vaibhav SharmaPage 4

Cover Story The freedom of expression is one of the most cherished rights in a modern democratic state. India has been one of the first nation in the world to recognize the importance of this valued principle by incorporating it into her Constitution. The Article 19(1) (a) of the Con- stitution of India grants the freedom of speech and expression to all the citizens. It is though subject to the conditions of public health, mo- rality, security, integrity of India, defamation, incitement of an offence, etc.; but by and large, the right allows for the creative expression and dissemination of ideas. The judiciary has also played its cardinal role in upholding this right from the malicious attacks of skewed interests. Recently, this principle has been at the heart of the controversy surrounding the Sanjay Leela Bansali’s film Padmavati. The film which is supposedly based on the story of Queen Padmavati who bravely gave up her life by committing ‘Johar’ to save her honor, has been facing a lot of difficulty in securing its release. Various associations notably Karni Sena of Rajasthan has been demanding the ban on its release as it fears that the film tarnishes the prestige of their community. The allegations of blatant distortions of the truth in the name of ‘cinematic freedom’ have been levelled by the associations. Various political parties have taken up the said issue to milk votes in the Gujarat elections. The community associations emboldened by the support of the political parties (both ruling dispensation and opposition parties) have gone to the extent of issuing death threats to the actors of the film. The film theatres showcasing the trailers of the movie have been ransackedand exorbitant sums of money have been offered for the head of the director and nose of the actress. Unfor-tunately, both the state governments (particularly Rajasthan) and Union Government have failed to stop thisruckus and bring the culprits to book. It gets even murkier with vituperating and obnoxious remarks beingmade about the female lead of the film. This has brought ill-repute to the entire nation with many Hollywoodstars been surprised at this callous disregard by the government in checking the hooligans. What is mostsurprising is that neither the protestors nor the political leaders have seen the film, because it has not beenreleased till date, yet they are obstinately demanding a ban on the film. The Central Board of Film Certifica-tion which grants the requisite permission to the films under the aegis of the Cinematography Act, 1952 hasnot taken a decision on the fate of the film. The deeper question which is being discussed here is the tendencyof the political parties and leaders to selectively interpret India’s historic heritage for their petty gains and takeextreme positions without thorough analysis.Milking issue for Political MileageThe dispute regarding the film Padmavati has brought to the fore the unscrupulous tendency of the politicalparties to milk contemporary issues for their electoral profits. Many political parties have come forward insupport of the ban on the movie, but their backing seems to emerge more from the elections perspective, ratherthan a genuine concern for the distortion of historical facts. The main victims of this myopic tendency havebeen the writers and artists. There are many instances where the movies have been banned by governments Page 5

Libertatem Magazine - Edition 35 without proper scrutiny of the allegations. The political leaders must perform their task of airing people’s grievanc- es, but must not add kerosene to the issues without any serious thought. It must be remembered that if somebody has a bona fide claim against the contents of any film or art, he/she has the option to approach the courts to secure justice. The nation is to be governed by the rule of law and cannot be subjected to the caprices or fancies of anyone. Inherent Question of ‘Freedom of Expression’ The main contention in the Padmavati conundrum has been of the freedom of speech and expression that is guaran- teed to the citizens by the Constitution itself. Freedom of expression is one of the most important ideas that must be preserved in any democratic country. It is inscribed in the form of the ‘Fundamental Right’ in Part III of our Consti- tution. The question of the distortion of the historical facts by the filmmakers must be objectively perused. The prac- tice of demanding a ban on the film at the slightest allegation is indeed regretful. The feelings of every community must be respected, and any tampering with the history for commercial gains must not be allowed. But the decision on the misrepresentation of the historical facts must be taken by a competent authority established by the law. The observations of the Hon’ble Supreme Court of India in a similar petition seeking a ban on the film ‘An Insignificant Man’ is worth mentioning. The Court while dismissing the petition said, “Courts are to be extremely slow to pass any kind of restraint order in such a situation and must allow the respect that a creative man enjoys in writing a drama, a playlet, a play, a book on philosophy, or any kind of thought that is expressed on the celluloid or theatre.” The Apex Court has done a commendable job in upholding the freedom of expression and its sage remarks must be followed by the people. The artists need a certain amount of space for showcasing their talent and their creative freedom must be nurtured for the benefit of the entire society. Political Meddling with Historic Past The political interference of the historic past of the nation is bound to hamper national unity and create a commu- nal divide between the people. The political intercession in the historical events has been an attempt to earn petty brownie points from a certain section of the population by maligning or defaming some other segment of the people. In the Padmavati, the aggressor Alaudin Khilji is being interpreted as barbaric and immoral who tries to damage the honour of Queen Padmavati. Such a superlative explanation of history is not prudent and must not be accepted. The question of the linking of the ruler to his religion is also bad in taste. The socio-political situation of the Medieval In- dia was different from the present times and the idea of a secular nation was non-existent then. The political parties have tried to link the controversy to the religious identity of the king in order to attain petty political gains. The issue as regards the celebration of the anniversary of Tipu Sultan in the state of Karnataka was also a similar case. While some political parties have portrayed him as ‘Anti-Hindu’, it is also true that he was an extremely benevolent ruler. His inventions in warfare, especially rockets were the best in the world even in the eighteenth century. The political slugfest even tried to portray the Taj Mahal as an embodiment of repression and brutality. It was termed as a ‘foreign monument’ and not part of the Indian culture. The dispute arose when the Taj Mahal was removed from the Manifesto of the Tourism Department of Uttar Pradesh. But we must remember that the same Taj Mahal is one of the Seven Wonders of the World. It is a national pride for which all Indians voted in 2007 to secure the first place in the world in election that led to its crowning. Not just the Taj Mahal, but all the monuments of the Mughal Empire, Red Fort, Jama Masjid, Fatehpur Sikri, Agra Fort, Moti Masjid, etc. are world famous tourist at- tractions and an inextricable part of our shared cultural heritage. The contribution of the Mughal dynasty to India’s art and culture is unparalleled by any other dynasty, even not by any local king. The new styles of Indo-Saracenic architecture, music traditional like quawali, sitar and khayal, school of painting, Urdu language and uniform admin- istrative system are all part of the legacy of the Mughal dynasty. The practise of labelling the invading king as ‘evil’ is not wise as even Pallavas and Marathas invaded into the territories of other empires. Selective Interoperation of Historical Facts The use of historical narratives in politics to divide the people in the name of religion or community has been repeat- ed much time in the history of independent India. The political parties have taken an extreme position with respect to the historic events to placate a set of voters. The mix of contemporary politics with the misrepresentation of histor- ical facts leads to a dangerous concoction that tries to subvert the identity of a Modern India. The partial quoting of history to create cleavages in the minds of the people have led to communal tensions in various parts of the nation. The famous explanation to the skill of interpretation of history is given in the seminal work “What is History?” by historian E.H. Carr. He says that while interpreting the different events of the history, we must realize that there are different sides to the explanation of every event. Every historian has his personal biases and the same get inscribed in the writings. He also warns that since the socio-political scenarios of different periods in history are not same, it is naïve to take extreme positions and brand someone any ‘evil’. The history of India is an unique example of various influences working together while creating a new synthesis.Page 6

Cover StoryIndia has seen the rule by various kings and dynasties. It has been subject to foreign invasions and colonial tyranny,thus, it is very difficult to describe someone any evil or bad.An example of Ashoka of the Mauryan Dynasty is apt to quote. While he is revered throughout the nation as a greatking who cared for his subjects and devoted his life to welfare of the people, he may be seen as an aggressor in someparts of modern day Odisha where he conquered various local tribes by force. We should remembere that the ideaof ‘India as a nation’ has developed only in the last two centuries through our struggle against the British. Beforethat period, India didn’t exist and there were a multitude of kingdoms and states which existed independently. Thenational consciousness had arisen largely due to the shared struggle of Indians of varied castes, religion or linguisticaffiliations against the British colonialism, which finally culminated into the birth of ‘New India’ of common aspira-tions and dreams of the citizens.Global Phenomenon: Troubling Colonial PastThe difficulty of interpretation of the history in the contemporary sense, with varied identities and strong nation-alism is a global problem. Recently, there have been violent protests in the United States of America against thesymbols of White supremacy. The protests have been largely organized by the black people rights organizations ina bid to remove the statutes and facilitation of White leaders from various academic institutions. The agitators evendefaced the statutes of civil war generals which suppressed the local people in their times. The colonial past of thenation is a disturbing baggage of emotions which a nation must carry even after its independence. The people mustlearn to deal with the differences and past atrocities is a benevolent manner. The shared idea of the nation must notbe tarnished by skewed interpretation of history.Interpreting India’s History through ‘Colonial Prism’The problem of the idea of the ‘evil foreign invaders’ having conquered the local kings to rule over the nation wasoriginally perpetrated by the British historians who tried to malign the image of the rulers by portraying them asbarbaric and indifferent. British also introduced the notion that Mughals or their predecessors were outsiders. Britishfollowed the vicious policy of ‘Divide and Rule’ to sow the seeds of enmity in the hearts of people of different com-munities. It is indeed startling to see that though the political leaders are ready to attack Mughals for their rule, thesimilar contempt of the imperial British is absent. The truth is that while the Mughals conquered the nation throughbattles; the English unscrupulously captured the power in the disguise of the trading community. They made use ofthe local rivalries to create tensions between different rulers and acquire territories. The colonial legacy of viewingsomebody as ‘outsider’ in terms of India’s cultural heritage is erroneous. While Mughals assimilated into India’sculture and influenced it as well, British destroyed India’s rich heritage and followed a policy of racial superiority.They subjected the people to inhuman brutalities and indignation through their regressive policies. The very idea of‘Modern India’ originated through the nationalist struggle of the countrymen against the tyranny of the Britishers.The long and gruelling Independence movement crystallised people belonging to various religions, castes and lin-guistic backgrounds into a common identity. ‘India as a nation’ was born in the consequence of the freedom move-ment which culminated in India attaining the beloved Independence on 15th August 1947.Need of ‘Indian Ethos’The practice of interpretation of history for the political mileage in the elections has disastrous consequences for thenation’s unity and integrity. The leaders must show restraint in indulging in placating one community at the costof another. The history must be dealt cautiously and any selective application of the chronology is bound to createproblems in the society. The idea of a shared nation of people having diverse religious, caste and traditions must becherished by the political representatives, for the ‘unity in diversity’ is our strength. The nation faces grave problemsof poverty, corruption, poor healthcare, pollution, sanitation and hygiene, etc. which need a concerted effort by allthe citizens for their amelioration. The Padmavati controversy highlights the importance of the freedom of expres-sion which is a starling feature of the Indian Constitution. The words of Voltaire, a famous French Revolution philos-opher are poignant to quote, “I may not agree with your words. But I will defend to my death, your freedom to doso.” This statement sums up the gist of the freedom of expression which must be guarded against any unwarrantedrestraint. It is indeed ironic that while Voltaire advocated defence of the cherished freedom even to the cost of one’sdeath, the political leaders and organisations have issued death threats to the film actors for the roles in the said film.The need of the hour is to give up the narrow mindset and seek recourse to the law in case of any grievances. Only ifwe are able to rise above the politics of misrepresentation of historical facts for trivial gains, then we as Indians willbe able to progress and herald a golden future for ourselves. ******** Page 7

Libertatem Magazine - Edition 35 aqtanhuIldeBnetehtPsSertCurucigasooparshunrithteiar-yoatmnCnoni’JenssftI By Chahat Mangtani A few months ago, an FIR was filed with respect to a case relating to a medical college. It was alleged that the bench dealing with the matter was being bribed for manipulating the decision. The FIR invoked Section 8 of the Prevention of Corruption Act (PCA), 1988, which section deals with provisions against “Taking gratification, in order, by corrupt or illegal means, to influence public servant”. Subsequently, CBI started to investigate the matter, and the case of taking gratifications was to be heard by the Supreme Court. The bench deciding this case included CJI Dipak Misra, or, so to speak, was headed by him. Justice Chelameswar, who is the second in terms of seniority in the Supreme Court, had referred and recommended that the case be heard by a five-judge Bench comprising of the senior-most members of the Apex court. However, the loophole was that he did not expressly exclude the CJI from hearing this case, despite a lot of pleas on behalf of Dushyant Dave, Senior Advocate and Petitioner in the given case. In a statement given by Nikhil Borwankar, Advo- cate in the Supreme Court, “Perhaps implicit in the fact that the CJI was not excluded from the bench constituted by Justice Chelameswar, is the recognition of the fact that it is the CJI who is master of the rolls.” The Constitution Of The Bench There was a petition made by Mr. Prashant Bhushan on November 10 asking for an independent investigation in this case of the medical institution, allegedly involving corruption in the Supreme Court, the Apex court of justice in India. The case filed on behalf of the Campaign for Judicial Accountability and Reform (CJAR) came up as a matter of ur- gent hearing by a seven-judge bench of the SC, two of whom were later removed. Henceforth, the bench comprised of only five judges (a Constitution Bench), comprised of CJI Dipak Misra, and Justices Arun Mishra, R.K. Agarwal, Amitava Roy and Khanwilkar. The whole controversy arose when Justice Misra took charge of the case, there being a clear conflict of interest, as the CJI was indeed the head of the bench which delivered the verdict in the case of the medical institute, and could be subject to the investigation himself.Page 8

Editor’s PickWhat Went Wrong That Day In The HearingOn November 10, 2017, the altercation between Justice Deepak Misra, the current Chief Justice of India, and Mr.Prashant Bhushan, a Public Interest lawyer, led to an intense clash between two of the mightiest of Indian Judicia-ry. It is relevant to note here that the altercation was a result of another matter heard in Justice Chelameshwar’scourtroom the previous day. The case presented before Justice Chelameshwar was regarding an FIR filed by the CBIagainst Justice Quddusi, a retired judge of the Orissa High Court, and others, on charges of corruption in the case ofPrasad Institute of Medical Science, Lucknow. The petition for this case was filed by Kamini Jaiswal, Advocate-on-Re-cord, and was argued by Senior Advocate Dushyant Dave, who has also been the President of the Supreme Court BarAssociation.It is claimed that Mr. Bhushan was not provided with a fair opportunity to present his case before the five-judgeConstitutional Bench. By citing a judgement of 1998, it was ultimately held by the bench that the CJI is the “Mas-ter of Rolls”. According to that judgement, the Chief Justice of a High Court is the Master of Rolls, and hence thesame principle shall be applicable to the Supreme Court as well. The CJI also stated that the power to assign casesto different benches and to decide the composition of benches rests solely with him. The argument between the twoarose when Mr. Bhushan insisted that the CJI be barred from hearing the matter since he was a party in the case andhad his name included in the FIR. On this, the Chief Justice threatened Mr. Bhushan to charge him with contempt ofcourt, to which Mr. Bhushan reciprocated by welcoming the notice against him, and stormed out of the courtroom.In furtherance, Mr. Bhushan also shared his views on a social media platform and accused the CJI of ‘very seriousmisconduct’, indicating a ‘conflict of interest’ in the current cases against him. He primarily stressed the fact that thishindrance violated the very basic principle of natural justice which states that “no man shall be a judge in his owncause.”Opinion Of The People Directly Involved In The Case• “He [Mr. Bhushan] was not allowed to make his submissions while all and sundry in this courtroom were given a chance,” Advocate Kamini Jaiswal told the Bench.• “You are the lords and masters of the country. You can pass any orders.” - Senior Advocate Prashant Bhushan yelled at the five-judge Bench led by Dipak Misra, the Chief Justice of India.• The court proceedings were extraordinary in that the CJI was asking all kinds of lawyers who were not parties to say things against the order of Court 2, w/o hearing petitioner. He tried to justify his role in the medical college case & speak against ‘impropriety’ of Court 2- Mr. Bhushan tweeted.• Extraordinary proceedings in SC today in the case seeking SIT Investigation in medical college bribery case in- volving the CJI! CJI presided over a hand-picked bench to override yesterday’s order referring this case to top 5 judges. This despite having a direct conflict of interest- Mr. Bhushan tweeted.• Commenting on the clash, Senior Advocate Jana Kalyan Das said, “The entire situation is highly unfortunate. It reflects badly on the judicial system not only in the country but also internationally.”• In another tweet, Mr. Bhushan said, “The brazenness with which the CJI has ridden roughshod over this has brought SC to disrepute.”ConclusionIf Mr. Bhushan can be attacked inside the Supreme Court of India by fellow advocates, we can only say mobocra-cy has stormed even the SC. Earlier such ugly scenes were witnessed in District courts. Why wasn’t he allowed tospeak? If the counsel- senior, or junior, isn’t allowed to speak, who should? Let’s then go to Audi alteram partem,since nobody is allowed to speak. How can CJI hear a matter where he is a party? It defeats the Principles of Naturaljustice which are recognised basic laws all over the world. The very basic norm of any decision that nobody can be ajudge in his own case was evidently violated by the CJI. The crisis regarding this politics and bribery comes from anauthority responsible for deciding and penalising others doing such acts. The CJI definitely has the power to decidewho is to hear a case but what can at aleast be expected of that power is that it’s exercised fairly, especially whenthere is such an obvious and evident conflict of interest.“Why did Chief Justice Misra insist on hearing the matter? What was wrong with Justice Chelameswar’s order re-ferring the matter to the five senior-most judges of the Supreme Court? What is the fear and why the panicky haste?And why violate the basic principle of law: Nemo judex in causa sua, that no one should be a judge in his own case?Certainly, today was a black day in the history of the Supreme Court as its institutional credibility took a hit,” wroteNeha Rathi, a Advocate in the Supreme Court, as published in Newslaundry. The bar within itself is debating theseissues. Page 9

Libertatem Magazine - Edition 35India after a Yearof DemonetizationBy Debajyoti Saha On November 8, 2016, the Prime Minister of India, Shri Narendra Modi announced that all the 500 and 1000 rupees notes would cease to be a legal tender. According to the reports, it was applied to the 86% of the cur- rency in circulation. During that time, up to 95% of the transactions were made in cash and the demonetization resulted in hardship for the traders who had no other means to accept payment except cash. Over that, 85% of the labourers were paid in cash and nearly half of the population did not have any bank accounts. The objec- tives were to curb terrorism, to eliminate fake Indian currency from the market etc. Apart from the said objec- tives, the main aim was to promote digital economy increasing the transparency in the money transactions. The effects of Demonetization As a result of the above, the tax base widened in the form of increase in the number of income tax returns by 25% in the year 2016-17. The main advantage was that the tax evasion comparatively lessened due to more people coming under the tax radar. It became easier to analyse the willingness of the people to comply with the tax laws. The mobile payment users increased enormously since the reports showed a surge of 105% subscrib- ers in the Paytm app. The Government also introduced BHIM app for the easy transfer of money. Around 50 lakhs labourers opened bank accounts and 1.03 crores employees got themselves registered with the Employ- ment State Insurance Scheme. The terror activities in the Naxal-related areas got down by 45%. Some econo- mists opined that initially, there will be less growth, loss of jobs etc. but stated that the drive is for a long-term goal. Arun Jaitley, the finance minister said that the move had met its objective of reducing cash in the econ- omy, ending anonymity of cash, bringing in more individuals in the tax net and dealing a body blow to black money. Therefore it was termed as anti- black money day by the NDA Government. Page 10

News StoryThe AftermathIndia is still a cash based economy. The agricultural sector in the rural areas has been hit most by the demoneti-zation drive. The debts started mounting and the prices of the goods started collapsing. The rates of the vege-tables like potatoes and tomatoes etc. were nearly half the price as compared to what had been in the previousyears. The results could be derived from the reports of farmers committing suicides in the states like Maha-rashtra, Gujarat etc. According to the reports, there were loss of nearly 1.5 million jobs in the first four monthsof this year. The growth in economy was also less than the previous year i.e. 5.7% in the first quarter of 2017-18vis-à-vis 7.1% in the same quarter of 2016-17. The expectation was the disclosure of the black money by the peo-ple. The demonetization drive removed out $240 billion USD worth of the notes but the banks received around$220 billion USD. This meant that either there was no black money in the economy or the peoplemust havefound newer legitimate way to evade tax. On a later juncture, the Government introduced 2000 rupees notesafter the drive. But there are already reports of fake 2000 rupees notes and 10 rupees coins. The cost of printingof the new currency was also the double of that of the last year.There is 21% rise in the imports from China inthis one year. In the first one month of the demonetization drive, there were around 720,000 deaths, as reportedby Forbes on December 8, 2016. There were news report of the labourers leaving Delhi due to deficit in receiptof wages. In the early part of the year, the people went for the digital economy but on a later juncture decreasedaccording to the reports. There was loss of nearly 1.5 million jobs in the organized sector. With respect to theunorganized sector,a same decline was found..The former Prime Minister Shri Manmohan Singh opined November 8 as the black day in the history of India;terming the demonetization as an organised loot by the ruling Government. He also said that there is no oth-er democratic country in the world which has taken such a gross step. The economic, social, reputational andinstitutional impact are enough to show the results. The GDP has slowed down after the drive and it can bewitnessed through the adverse impact of demonetization on the weaker sections of the society. The drive alsoattacked on the credibility of the Reserve of India. But undoubtedly, this drive did leave a mark in the WorldBank, IMF and European Commission.According to the author, it is very difficult to infer from the effect of demonetization drive over the Indianeconomy. Our country consists of different sectors of economy. The impact of demonetization effected all thesectors. This step was not a sudden in any manner. The ruling Government warned in various ways beforeannouncing the above drive. It would be better for us to be patient and give time to the NDA Government toachieve its objects. ******* Page 11

Libertatem Magazine - Edition 35 Privacy as Fundamental Right By Khushbu Shah The K.S. Puttaswamy v. Union of India judgement has upheld privacy as Fundamental Right. This is the most conse- quential judgment of this decade. It works in favour of the liberal and feminist movement demanding decriminal- isation of homosexuality (along with recognition same-sex marriage) and criminalisation of Marital Rape. Both the demands, prima facie, may seem antagonistic to each other as the former demands no State interference whereas the latter demands State interference in the 4-walls of the private sphere. However, this apprehension is based on a misguided understanding of Privacy and its facets. There are various facets of privacy like decisional privacy, bodily privacy, informational privacy, data privacy, medical privacy, among others. Homosexuality and Right to Privacy In India, same-sex marriage is not only deprived of any legal recognition but sexual intercourse between the per- sons of the same sex is criminalised under the Section 377 of Indian Penal Code. Section 377 has been brought into force to cover within its ambit the following aspects. • To criminalise homosexuality. • To criminalise certain acts between heterosexuals: This means that all acts are against the order of nature un- less they do contribute to the process of reproduction. e.g. anal sex and oral sex. • To criminalise sexual activities between humans and animals. i.e bestiality. An analysis of this section brings forth the fact that there is unfettered State interference in the personal matters of a person. Something as private as choosing the partner for marriage has been regulated by the State without any discernible State interest. Thus, this section is used as a tool to impose majoritarian understanding of sexuality, gender and marriage. Such unwarranted interference is in violation of Right to Privacy. Two important facets of the Fundamental Right to Privacy are ‘Marital privacy’ and ‘Decisional privacy’. Marital Privacy limits the extent of Government intrusion into private life, such as those involving sexual relations between married persons, family planning, etc. Thus, it gives freedom to couples to decide and act according to their will. This fact of privacy was the driving force behind the landmark US Supreme Court judgement of Griswold v. Connecticut (1965). In this case, Court set aside the legislation which criminalised the use of contraceptives by couples. This was considered to be a private marital de- cision of the couples, and not an issue for State to impose its perspective. Whereas, Decisional Privacy entails free- dom to make life-defining choices and act autonomously. Section 377 violates the Marital Privacy as couples are not free to make intimate family decisions relating to the choice of a partner for marriage. Also, the lack of freedom of a person to decide his/her sexual partner violates the Decisional Privacy. In the NAZ Foundation Judgement, a major concern for striking down the entire Section 377 was that bestiality would also be decriminalised. In a civil society, an act of bestiality cannot be permitted. Except for the part which criminalises bestiality, the rest of the section should be read down as it violates the Fundamental Right guaranteed by the Constitution. Using Section 377 of IPC, the State restricts two consenting adults from making their autonomous decisions. The social norms are legally enforced in the private spheres of life. This is violation of the Right to privacy as a person’s private life is regulated and scrutinised by the public at large and not a modicum of privacy left. Criminalising Marital Rape Rape in India is considered as one of the most heinous crimes against women. What possibly could be less logi- cally consistent than a statue that legalises a non-consensual sexual relations between the survivor and assailant if they are married? This is precisely the effect of the exception 2 of the Section 375 of IPC. This exception not only fails to classify marital rape as an offence but also grants a statutory immunity to the husband from prosecution. The exception 2 in the Section 375 of IPC undermines privacy i.e bodily integrity and sexual autonomy of married women.Page 12

News StoryWhy is Marital Rape not considered a rape?The absence of consent on the part of women is the crux of the offence of rape. Marital Rape is not considered arape under Section 375 because this essential ingredient of the offence is not fulfilled. There is a postulation ofan absolute and binding consent on the part of the married women. The formation of this theory finds its rootscontract law and the conception of irrevocable ‘matrimonial consent’. The ‘implied consent theory’ states that thewomen have given her irrevocable consent to the husband for sexual intercourse at the time of marriage. The infa-mous statement made by Sir Matthew Hale, in brief, explains the theory, “the husband cannot be guilty of a rapecommitted by himself upon his lawful wife, for by their mutual matrimonial consent and the contract the wife hathgiven up herself in this kind unto her husband, which she cannot retract.’ The strict irrevocable principle providesa window to withdraw her implied consent only when the marriage is suspended either temporarily or perma-nently. Consent becomes a concomitant phenomenon in a continuing legal marriage. This theory is widely accept-ed in the contemporary Indian context as the amendment of 2013 of IPC revokes the exception 2 under Section 375of IPC and allows for prosecution of a husband once they are granted Judicial separation as the marriage standstemporarily suspended. Thus, the temporary suspension of marriage overturns the consent of the wife to havesexual relations with her husband which is otherwise implied.Violation of Bodily IntegrityThe issue with implied consent theory is that it undermines the privacy. The privacy of women includes her bodilyintegrity. Bodily integrity is the ability of an individual to have one’s body to be treated as sovereign, i.e. to besecure from different kinds of assault. The exercise of bodily integrity must entail the ability of self-determination,self-governance and to act authentically. At its heart, the principle of bodily integrity claims that every individ-ual should be able to decide for herself. The ability to give or withdraw her consent to have sexual intercoursebecomes an essential part of the bodily integrity of a woman. With the presumption of irrevocable consent, thewomen no longer have control over her own body.Denying Sexual Autonomy to Married WomenAutonomy provides for leaving a person alone to fulfil his/her desires. And in sexual autonomy this desire mightbe to indulge or abstain from having sexual relations with others. It does not require one to fulfil other people’s de-sires. This amounts to the imposition of a burden. The Indian State took upon itself the responsibility to impose theautonomy of the husband to have sexual relations with the wife on a very different understanding. Justice Wilsonin the Phulomoni case of Queen- Empress v. Hurree Mohun Mythee said: “...that the law regards a wife over tenyears of age as a thing made over to be the absolute property of her husband, or as a person outside the protec-tion of the criminal law.” The status of the wife is reduced to the status of a chattel or property which he is free toappropriate. This forms the basis for ‘Property Theory’ of marital rape. Under this theory, the wife is deemed tobe the property of husband once they are married. With this understanding, no amount of independent identity,sexual autonomy and privacy exists for married women. This denies the natural right of privacy to them, which isguaranteed by the Constitution. Thus, the exception 2 of Section 375 violates the Constitution.ConclusionRight to Privacy is not an end in itself, it is a means of enjoying the cherished principles of liberty, freedom andequality enshrined in the Constitution. Upholding the autonomy of person in cases of choosing a partner anddeciding whether or not have sexual relations in the institution of marriage is of paramount importance to privacy.By imposing unjustified restriction, the exception 2 of Section 375 and Section 377, IPC hinders one’s enjoyment ofthe liberty and freedom endowed by the Constitution under Article 21.In the words of Justice Chandrachud, “privacy must not be utilised as a cover to conceal and assert patriarchalmindsets”. Any instance of rape jeopardises the self-respect of the women. It becomes imperative for the law topunish the rapist and dispense justice to the women. It must be realised that in case of Marital rape, there is merelyan addition of the prefix to the nomenclature. The experience of women in Marital Rape is no different. The lawin marital rape cases undermines the seriousness of rape by not considering it a crime at all. It fails to account thatthe perpetrator women have to continue a domestic relationship with her rapist. The gross miscarriage of justiceof the widespread violation of basic human rights that is not curbed owing to social norms and customs can beoverturned using this judgement. Page 13

Libertatem Magazine - Edition 35VDirseiaomnatroy freePCorilmitiecs from By Shreyan Acharya Inextricable Bond between Crime and Politics The relation between politics and crime has grown even more stron- ger with the increase in the lust for power, money and muscle. To safely undertake criminal activities, politics was often idealised as a safe haven to protect oneself from the wrath of the authorities. The infamous gangster of Mumbai “Arun Gawli” entered politics and contested elections. He was convicted for the murder of Shiv Sena corporator and is presently serving life imprisonment. This brings us to the prevalent issue of “Criminalisation of Politics”. The politics in India has transformed from selfless work to self-centred work i.e. politics used as a platform to fulfil one’s personal ambitions. Under the pretense of social work and political activities, the presence of people with criminal background in politics has been on a sharp rise. According to the data of the Association of Democratic Reforms in 2014, 1,581 of total legislators have criminal cases pending against them. The staggering number depicts the dreadful condition of politics in India. This trend has many implications for Indian democracy. The use of money and muscle power has been a major cause of manipulating vulnerable electorates. The politicians with influence in any manner are regarded dangerous and are unhealthy for a democratic institution. They are like- ly to use their influence to get things done as per their whims and fancies which ultimately affects the people at large. It is said that the voter has the freedom to vote anyone, but the voter is also restricted to choose a lesser evil who would inflict mild harm as compared to the other option. But, there is optimism to counter this men- ace. Many public-spirited individuals and organisations have taken the issue to the Hon’ble Supreme Court of India. Through the recent move to establish special courts to try criminal cases against MPs and MLAs and a lifetime ban on convicted politicians, a roadmap could be set to move towards the decriminalisation of politics in India. Roadmap to Decriminalisation of Politics The Guardian of the Constitution have unfailingly performed its responsibilities to do social welfare and shown activism to cleanse politics off crime. The first such hit by the judiciary was when it ordered to disqual- ify sitting MPs and MLAs convicted of a crime. This masterstroke was applauded and viewed as a dawn to a new India of the 21st Century. But, there are other issues that need urgent attention. The disqualification was a welcoming step, but one should not be satisfied with a small achievement when there are other challenges standing at the doorstep. To further take the step of cleansing politics, there is a need draw the attention on the petition filed by Ashwini Upadhyay in the Hon’ble Supreme Court of India. The petition centres on the roadmap that can be created to completely free politics from crime. This can be done by the “establishment of special courts to try MPs and MLAs for criminal cases” to “lifetime ban on a convicted person or to form political parties or become its office bearers”. The matter is pending in the court to which the Centre and Election Commis- sion of India have been directed to find a viable scheme for the implementation of the same. The moot point here is: whether establishing special courts to try criminal cases against politicians is a viable option.Page 14

News StoryThe viability of putting a burden on establishing new courts in already overburdened judiciary needs to be evalu-ated. There are issues ranging from relocating of courtrooms to try special criminal cases and shifting the pendingcases to these newly established courtrooms. The administration would have to demarcate the accused personson the basis of association in politics. Further, the monetary aspect would also be an impediment in ensuring thefunctioning of the courts. The budget allocation would be revised on its basis, and finally, Judges must be care-fully appointed to try these cases. These could be some of the hindrances that may jeopardize the process, butthese challenges must be addressed expeditiously. It may cause a little inconvenience but it will definitely reap thefruit of the all the labour and hard work. There are special courts to try company matters, administrative matters,therefore, establishing special courts shall not be much of a tedious task. There are bigger gains than losses here.If these courts are established and worked efficiently with transparency and no influence whatsoever then it willachieve milestones to create a crime-free politics. The legislators would also feel obligated to dissociate themselvesfrom any criminal misconduct. Fast track courts are established to try heinous offences to ensure speedy dispos-al of cases and quick and judicious dispensation of justice. These special courts would work as fast-track courtswhich will also reduce the burden of the pending cases languishing in courts.A Hope for ChangeThere are other factors as well that is the empowerment of the electorates. The people in politics would awakefrom their dream of having a sense of ownership. The masses would feel empowered to directly report any caseagainst politicians for any criminal misconduct. Earlier, the common belief or apprehension prevailed amongst thecitizens that politicians are immune from any action. But, special courts can be an answer to this. The fast-trackcourts with a set deadline would make a person think before indulging into any unscrupulous activity. This senseof fear would be instilled only when the trials are conducted in these courts efficiently. Now, the ball is in Centre’scourt. It is upon the Centre to show their commitment to free politics from crime and take initiate to come with aframework to execute this ambitious and foresighted vision which may ultimately result into a greater good forthe entire nation. Page 15

Sexual HarassmentLibertatem Magazine - Edition 35 of Women: An Age Old Tale By Vaisakhi MudannaIntroductionSexual harassment is a frequent occurrence in today’s world. There isn’t a day where one doesn’t come across asexual harassment case either through electronic or print media. Most of the women don’t explicitly voice theirgrievances against sexual harassment because of fear of being thrown out of the job if they do express it to anyone, or if the person is powerful enough he might make the availability of other jobs difficult for them. For ex-ample, if we take the movie industry, generally the people who have long standing of fame have power to makesure that the people below them will not get any roles if they defy them.In the modern era, there are still people who believe that men are superior to women, and that they can escapefrom anything they do. This is not the first time the case of sexual harassment has come into light recently.Women around the world have been facing it for decades.Indian ScenarioThe recent incident of sexual harassment of women in the “High Spirits Café” has become a burning issue, whichhad the social media such as Twitter and Facebook bombarding with the confessions from all the women whohave been harassed. It has been alleged that the owner “Khodu Irani” of High Spirits Café, which is situatedin Pune, had groped, sent lewd messages and sexually harassed the employees and a few of the patrons whovisited the café. The trigger point of the incident is when one “Sheena Dabolkar” has been shamed on the Face-book Page of High Spirits for exposing the sexist nature prevailing on the premises. [ High Spirits, but only formen: Women come forward alleging rampant sexual harassment at Pune bar by Neerja Deodhar] After this, many peoplestarted tweeting about their experiences and how they were harassed. Since the issue is still being dealt with, noconcrete outcome can be said about the allegations. In order to stop the sexual harassment of the women especially at the work place the Parliament had enacted “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressel) Act, 2013”. This act is based on the guidelines given by the Supreme Court in a Landmark Judgment of “Vishaka and Others V. State of Rajasthan”. [1997 (7) SC 384] The following are the guidelines given by the court: Firstly, It is the duty of the employer or any other authorized person to prevent sexual harassment at workplace and to provide procedures for prosecution of such acts by taking all the necessary steps. Secondly, the following acts constitute sexual harassment: • Physical Contact and Advances • A Demand for sexual favors • Sexually colored remarks • To show pornography • Any other verbal or non-verbal or unwelcome physical contact of sexual nature Third, all the employers or any other person authorized have to take preventive steps as following: 1. Notification or circular should be published and circulated at work place. 2. All the government companies have to include rules and regulations in regard to the sexual harassment in their conduct code. 3. All the private employers should include the rules in their standing orders. 4. Appropriate working conditions have to be facilitated.Page 16

News StoryFourth, the employers have to take appropriate action by making a complaint to the authorities in case any sexu-al harassment is notified within the premises.Fifth, all the employers have to make an appropriate complaint mechanism in the organization and disciplinaryaction should be taken in case of violating the said rule.Sixth, a complaint committee has to be constituted which a woman will head.Seventh, the employees have to take initiative to bring up sexual harassment issues in their meetings, or beforean appropriate forum.Lastly, the employer or the person who has been authorized should provide full support in case where a thirdparty who is an outsider sexually harasses the worker.The above landmark case has, for the first time in the history, defined “Sexual Harassment”.Pre Vishaka ScenarioBefore the enactment of the Sexual Harassment Act and the guidelines given by the Supreme Court in the Visha-ka Case, there has been no law to govern this matter. Though Remedies are available under the Indian PenalCode, 1860, the Indecent Representation of Women (Prohibition) Act, 1897, the Protection of Human Rights Act,1993, Factories Act, 1948. [Sexual Harassment of Women at Workplace by Nikunj Keyal] Sections 294, 354, 509 ofthe Indian Penal Code, 1860 can provide remedies to the victims of sexual harassment.Around The Globe:Not many people in India would have known “Harvey Weinstein”. But with the recent issues with which he hascome into the limelight, most of the people have come to know as to who is Harvey Weinstein.So who exactly is Harvey Weinstein?He is a Hollywood movie producer and a political liberal. He is a very famous personality with power within hisreach. [What Indian’s liberals can learn fro Harvey Weinstein’s fall by Barkha Dutt] Allegations of sexual assault havebeen made against him recently. The incident of Harvey Weinstein has stunned the United States. The Holly-wood commented, “ The treatment of women in this way ends now” In the light of this event, the actress “AlyssaMilano” tweeted “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.”What is “MeToo”?This has been trending on the social media websites for last one week. “MeToo” is a movement founded by “Ta-rana Burke” in 2007. This has provided a platform for all the women who have been sexually harassed to helpraise voice against those men who believe that nothing can harm them. Millions of followers have tweeted to thethread “#MeToo”. [#MeToo Campaign Showed That Misogyny is a Deeply Cultural Issue.Here’s Why It Was Sorely NeededThis campaign has become an insignia for global unity. This movement has made many women to break theirsilence due to fear, shame from the experience and express their encounters. Many sexual harassment cases havecome into light. The impact of the MeToo campaign has also had a tremendous impact in India. This has givenmany Indian women support to come out and share their experiences of sexual harassment.One woman has said “We will rise, we will scream from the rooftops if we have too. We will whisper it gently to the oneswho are suffering currently. Me too….Me too. We will continue until every survivor is empowered to speak truth to powerand until the world is ready to listen to us.” This campaign has also been successful in many other countries aroundthe globe giving encouragement to the women to bravely share their own experiences.ConclusionIt is time for all the women around the world to stand firm against the sexual harassment. It is time to raise theirvoice bravely and seek justice for the wrong done to them. It is time to show to the men around who still believethat they are superior to women and that the time has changed and they are to be treated as equals and withrespect. ******** Page 17

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