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.

Secularism

Secularism loosely means the separation if state and church. Most modern democracies chose to be secular by not folliwing the church in the government processes. In India, secularism is guaranteed in the Constitution by providing the principles of equality. The chapter on fundamental rights begins by stating the equality clause followed by spelling out that there shall not be discrimination on the basis of religion. Further, the freedom of religion is provided and certain rights are given to the religious minorities. The term 'secular' was not used initially in the preamble as the franers of the Constitution felt that the Constitution is already secular in nature and there is no need to mention the term. Following the Babri masjid demoltion, the Supreme Court observed that secularism is the basic structure of the Constitution and thus its inalienable part. An attack on the secular nature of the Constitution would be an attack on the very principles that the countty is based on. Secularism means thar the State shall not promote one religion at the expense of another, it means that the religious practices of one religion shall not be forced upon in government offices. Though the Constitution gave certain rights to religious and linguistic minorities to establish and administer their institutions, it does not take away the secular structure of the Constitution, rather they are are a safeguard to protect different cultures from being lost in the tide of majority. Secularism is a concept that taljsbof protection of all and not promotion of the majority. It is the badic structure of the Constitution and it needs to be cherished.

Women parasites

Recently while dealing with a case related with increasing the maintenance of a divorced woman, the Delhi High Court advised the woman to get a job and stop being a paradite on her husband's earnings.  The court has used an unusual term 'parasite' to describe a woman who does not have a job. The question is whether a woman, who is a homemaker and does not have a professional career is a nobody? Are all her efforts at maintaining the house and taking care of the children and sometimes also her inlaws and extended family immaterial just because she does not gonout to earn? Many a times, a woman is forced to leave her job after marriage and after staying at home for ten or fifteen years is no longer wualified enough to enter the job market. If a woman has soent years of her life taking care of her husband and his house, doesnt she deserve to get maintenance if the martiage has had an unfortunate end. If a divorced woman is called a parasite, then even a widow can be called one anf then ultimately all homemakers will be declared parasites while their hours of unpaid labor will be ignored. In a society which still doesn't treat the women as equal to men, which still doesn't give equal pay for equal work, which still doesn't promote women, calling a woman a parasite is a slap on the face of all those who talk about gender justice.
While getting maintenance is not an absolute right of a wife and even husbands can get maintenance from their higher earning wives, it is required that the same provision is not misused and deserving women be forced on the street. When husbands are known to leave their jobs and declare bankruptcy in order to avoid giving maintenance to their estranged wives, te courts should be careful in awarding her what is due and courts should be extra careful in choosing the words they use.