Rape of minor wife

Section 375 of the Indian Penal Code, 1860, defines rape as a sexual intercourse either without the consent of a woman or with her consent which was obtained by either by putting her in fear, or when she was intoxicated or unsoundness of mind or if she is under the age of sixteen or is under the mistaken impression that the man is her husband. The exception to the section provides that sexual intercourse by a man with his wife does not amount to rape except when she is under the age of fifteen years.
The given exception created a lacuna in cases of minor wives who were between the ages of fifteen and eighteen years. If a man had sexual intercourse with his minor wife against her will, it did not constitute the offense of rape if she was above the age of fifteen years. The Supreme Court has recently increased the age of eighteen years for the wife, below which the man would be considered to have raped his wife, if he has sexual intercourse with her against her will and consent.
The Court has observed that all instances of sexual intercourse with a minor wife would constitute the offense of rape whether with or without her consent. A child does not lose her right to decline sex to her husband just because she is married. The order of the Apex Court is laudable as it can be a step in furtherance of preventing child marriages and may be a step towards declaring them void ab initio.

Law relating to refugees

The present day world is faced with a challenge of having refugees from various asian and African countries who are fleeing persecution. The right to seek asylum has been recognized by the Universal Declaration of Human Rights in article 14 which states that everyone has a right to seek and enjoy in other countries asylum from persecution, provided it is not prosecution arising genuinely due to non political crimes or from acts contrary to the principles and purposes of the United Nations.
The Convention relating to the Status of Refugees, 1951, describes and lays out the various rights of refugees and duties of the sheltering nations. Article 1 gives right to seek asylum from persecution arising due to race, religion, nationality, membership to a particular social group or political opinion in a country other than the one of his nationality and unwillingness to return there. However, the provisions cease to apply if he voluntarily returns to his country of nationality, or voluntarily reacquires nationality or acquires a new nationality, or if he voluntarily reestablishes himself in his country of nationality or prior residence, or if due to change in circumstances, he can no longer to refuse to avail protection of his country or is able to return to the country of his prior residence. The provisions of the Convention do not apply if he has committed serious crimes against peace or war crimes or he has committed serious non political crimes or is guilty of acts contrary to the principles and purposes of the United Nations.
Article 3 prohibits member states from discriminating on the grounds of religion, race or country of origin.
Article 4 gives the person seeking asylum to practice his religion and give religious teaching to his children.
Article 16 gives the refugees right to free access to courts in the country of asylum. The asylum seeker has a right to enter into a wage earning employment (Article17) as well as self employment. (Article 18)
Article 20 provides that where a system of rationing exists, the refugees shall be given the same rights as the nationals Article 22 gives refugees same access to elementary education as the nationals.
Article 26 gives there freedom of movement within the country of seeking shelter. Article 27 provides that the country has to issue identity papers to a refugee not having valid travel documents. Article 28 requires the country to issue travel documents for the refugee to travel outside the country of shelter.
Article 31 provides that the refugees who have entered a country unlawfully shall not be punished if they present themselves for registration within reasonable time. Article 32 prohibits the States from expelling refugees from their Territory except on the ground of public order or national security. Article 33 prohibits returning a refugee to a country where his life or freedom would be threatened on account of his race, religion, nationality, membership to a particular social group or public opinion.
Article 34 provides that the Contracting States should make provisions for the early assimilation and naturalization of the asylum seekers.
The member States are required to provide asylum to anyone who wants to escape persecution and also to provide him with facilities to lead a productive life. They cannot return them to the country where they are facing persecution and their life or liberty is endangered instead the contracting States are required to provide a safe haven to the asylum seekers.

Right to privacy

The Supreme Court unanimously observed that the right to privacy is a right under Article 21 of the Constitution and is absolute in nature, it cannot be suspended even during emergency. While declaring the right to life to be a fundamental right, the various judges also observed that the government has no right to dictate what a person can eat or wear. They also observed that the right to privacy covers all aspects of human life and relations including their sexual orientation.
The judgement will have an effect on other legal issues like decriminalizing homosexuality under Section 377 of the Indian Penal Code, 1860, linking of aadhaar cards and making them mandatory, the government control over what is published over social media as well as the DNA profiling bill.
By covering sexual orientation in the purview of privacy, the Court has laid down the foundation for decriminalizing homosexuality and sought to protect the rights of the LGBT community. The Court observed that the issue of making aadhaar card mandatory which involves taking finger print and retina scan of individuals, will be taken over by another bench. Critics of aadhaar card have observed that by keeping a person's information in the digital database makes it vulnerable to be leaked by a cyber attack. Freedom over the social media is covered under freedom of speech under Article 19(1)(a) and is subject to restrictions under Article 19(2) but how much can the government read those posts will be judged by the rulings of the instant case. The DNA profiling Bill,2017, seeks to establish a DNA bank where the samples from criminals, unclaimed dead bodies, volunteers will be kept. The Bill seeks to help tracing of missing persons easy but it can encroach upon a person's privacy by keeping all his information in the government database. By covering a person's food habits, the present judgement hits at the government's beef ban.
While the order has to be lauded as a need of the hour to protect the citizens from intrusions in their private life, by making the right absolute, it can hinder the intelligence agencies seeking to control terrorist activities or anti national activities. Still, it is an important step towards protecting citizens from government scrutiny over their private life and choices.

Triple talaq

Talaq ul biddatt, is the practice whereby the muslim husband divorces his wife by the pronouncement of talaq in a single sitting. It is irrevocable and does not grant time for reconsideration. Talaq ul biddat or triple talaq as it is often called, does not have any source in the Quran or even in the Sunnat of the Holy Prophet, rather it was legalized during the period of the second calph, Umar. It is not recognized under many sects of muslims including the Shias. The Hanafi school of Sunni law recognizes the legality of this form of talaq but considers it sinful.
The Supreme Court by a majority of 3-2 held that Section 2 of the Shariat Act, 1937, as far as it covers the practice of triple talaq or talaq ul biddat is void as being arbitrary. The majority view held that since this form of pronouncing talaq does not give any chance of reconsideration or arbitration between the parties, it is arbitrary in nature and hence void. The minority view held that the practice of triple talaq is not against the principles enshrined under Articles 14, 15 or 21, it is covered under the protection of Article 25 as not being hit even by the exceptions of public order, health or morality, but it considered issuing an injunction for a period of six months during which the Parliament should pass a law covering the issue.

The right to abort

In India, it is illegal to abort a fetus and the circumstances under which a pregnancy can be terminated are governed by the terms of the Medical Termination of Pregnancy Act, 1971. Section 3 of the Act provides that where the term of pregnancy is less than 12 weeks then if it is the opinion of one medical practitioner and where it is longer than 12 weeks but less than 20 weeks and two medical practitioners are of the opinion that the pregnancy may be:
(1) harmful to the life of the mother or cause her grave mental or physical injury
(2) the child that will be born would have such physical or mental abnormality that it will be handicapped
(3) the pregnancy is a result of rape (explanation 1 puts it under the category of mental injury to the mother)
(4) the pregnancy is a result of failure of contraceptive methods (explanation 2 puts it under the category of injury to mental health)
the pregnancy can be terminated at a hospital established or maintained by the government or any place approved by the government for this purpose.(section 4)
The law further provides that in case of the pregnant woman being a minor, pregnancy cannot be terminated without the consent of her guardian.
The purpose of this law is to prevent sex selective abortions but it has not proved successful in that case as a large number of illegal abortions are rampant. The law has not prevented female feticide but has rather brought hardship to people who genuinely want to end a pregnancy for reasons other than those expressly mentioned including any social or economic hardships that the pregnancy may result in.
Still, the law permits the abortions in cases of rape or abnormality in the fetus, so if the courts refuse to grant permission to abort where the rape survivor is a minor or where fetus carries genetic disorders, it goes against the letter and spirit of law.
The right to abort should be more pro choice as every person has different circumstances and may not be capable of bringing another life into this world or would have faced great hardships because of the child birth. Instead of banning abortions, government should lay greater emphasis on contraceptive means, lay stress on sex education in schools and promote a safer atmosphere for children.

The Copyright Law

The Indian Copyright Act, 1958, provides for the protection of the rights of the creator, who is described as an author of any literary or artistic work from unauthorized copying while giving him the right to register and copy or sell his creation.

Section 14 of the Act describes "copyright" as the exclusive right subject to the provisions of this Act, to do or authorise to reproduce, issue copies, make recordings, sell or rent for commercial purpose, translate, or create an adaptation of the work.

Section 18 (1) provides that the owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof:

Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence. Section 2 (d) describes author as-
(i) in relation to a literary or dramatic work, the author of the work;
(ii) in relation to a musical work, the composer;
(iii) in relation to an artistic work other than a photograph, the artist;
(iv) in relation to a photograph, the person taking the photograph;
(v) in relation to a cinematograph or sound recording the producer; and

(vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;

Section 22 provides that copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until sixty years from the beginning of the calendar year next following the year in which the author dies.

Section 37 provides that every broadcasting organisation shall have a special right to be known as "broadcast reproduction right" in respect of its broadcasts which shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made.

Section 38 states that where any performer appears or engages in any performance, he shall have a special right to be known as the "performer's right" in relation to such performance which will subsist until fifty years from the beginning of the calendar year next following the year in which the performance is made.

Section 39 provides that no broadcast reproduction right or performer's right shall be deemed to be infringed by making recording for private purpose or for bona fide research or teaching.

Section 51 describes the infringement of copyright in a work as follows:

(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or

(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or

(b) when any person-

(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or

(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or

(iii) by way of trade exhibits in public, or
(iv) imports into India, any infringing copies of the work

Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.

Section 52 (1) The following acts shall not constitute an infringement of copyright, namely:

(a) a fair dealing with a literary, dramatic, musical or artistic work not being a computer programme for the purposes of private use, research, criticism or review.

(aa) the making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme, from such copy- to utilize it for the purpose it was supplied for or make back up copies.

Section 55 (1) provides civil remedies for copyright infringement. Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right. Provided that if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the court may in the circumstances deem reasonable.

(2) Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that of the author or the publisher, as the case may be, appears on copies of the work as published, or, in the case of an artistic work, appeared on the work when it was made, the person whose name so appears or appeared shall, in any proceeding in respect of infringement of copyright in such work, be presumed, unless the contrary is proved, to be the author or the publisher of the work, as the case may be.

(3) The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the discretion of the court.

Section 63 provides that any person who knowingly infringes or abets the infringement of the copyright in a work, or any other right conferred by this Act, except the right conferred by section 53A shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:

Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.

Section 63 A provides that whoever having already been convicted of an offence under section 63 is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than one year or a fine of less than one lakh rupees.

Freedom of press

In India, the freedom of press is not explicitly mentioned in the Constitution but is rather derived from the freedom of speech and expression given under Article 19(1)(a). Being a part of the freedom of speech and expression, the press enjoys the same rights and is subject to same liabilities as any other citizen of India. However, in a democracy, the press plays an important role in highlighting the government actions and in criticizing its excesses. The freedom in a democracy can be said to be determined by the freedom its dissident press enjoys. The government that suppresses the freedom of its press cannot be truly called as a democratic government. The role of press is not just to show the good works of the ruling government but also to highlight all its misdeeds, all the actions where it has committed excesses and taken away the rights of the citizens. The press has a role to question various government actions which may not be in the interest of various sections of the society particularly the minorities and the weaker sections. In a democracy, it is not just the right but the duty to question various government policies and decisions. Questioning the ruling party does not mean that the sovereignty of a country is being questioned, it simply means that the various actions of the government may need justification. With power comes responsibility and the ruling party is always responsible to take the interests of all the sections of the society into consideration while making any policy decision. In such circumstances, speaking up is an act of patriotism while remaining silent and watching the government acting against the rule of law would not be an acceptable act specifically for the press. Accountability is an important factor in a democracy. A government can function smoothly only if required checks and balances are in place. Sometimes, the only check on the government actions is the press, in such circumstances, curtailing the freedom of press would be a harmful act for the country.