Author: Publisher of this Page

ABSTRACT

Child labour, in and of itself, is a violation of children’s human rights since it deprives them of their “growth”, “development”, “education”, and, indeed, “childhood” itself. Article 24 of the Indian Constitution states that no child under the age of 14 may work in a “mine factory”, or other dangerous environment. However, the Constitution doesn’t explicitly specify what “dangerous work” is. Does it refer to simply physical risks or also include “moral”, “mental”, “psychological”,  hazards etc.?[1] One of the biggest issues facing the whole globe, especially emerging nations like India, is the prevalence of child labour. But as time has gone on, a global awareness of the severity of the issue has emerged. A country’s child population that is discovered to have engaged in “paid” or “unpaid employment” in a certain scenario is considered to have engaged in child labour, even if the definition and notion of child labour might vary greatly relying primarily on “social”, “economic”, “environmental”, or “physical postulates”. Therefore, the primary goal of this article is to examine the judicial trends surrounding the issue of child labour. Additionally, an effort has been made to examine the issue of child labour in relation to those working children under the age of 14 who are engaged in gainful “industrial” and “non-industrial” occupations that are not only seen as detrimental to their “physical”, “mental”, or “moral development” but also seriously impede their social advancement.[2]

INTRODUCTION

In India, there is a severe problem with child labour. On the one hand, India is moving from being a developing to a developed state; it ranks fifth in terms of economic growth, claims a permanent seat on the UN Security Council, and more than “221 people have entered the club of billionaires in recent decades.” India, on the other hand, has made little success in the fight against child labour since it “holds the world’s highest number of child labourers.” The “greatest incidences” of child labour are reportedly found in India, despite the country having the “strongest regulatory framework” in the world with the express purpose of abolishing child labour. There are approximately “300 Central and State Statutes targeting children to “safeguard” and “help” them in attaining the core principle of our National Charter of child labour welfare. This article analyses the rising issue of child labour in India as well as a few court decisions on the subject to evaluate the role that the courts have had in outlawing, enhancing, or easing the employment of children and their working circumstances. In order to safeguard the interests of both children and society, it concludes with a few recommendations for resolving this pervasive problem that affects kids generally. [3]

MAGNITUDE OF THE PROBLEM

Numerous children in India are forced to labour every day, losing their “childhood,” “education,” and “complete mental” and “physical” development. According to the 2011 census conducted by the Indian government, “there were 43.53 lakhs children employed between the ages of 5 and 14.” Although this is a growth from the “1.26 crore number from the 2001 census,” structural problems that promote child labour, such as “poor,” “weak enforcement,” and “regulation,” continue. However, the absence of a “functional definition” for “child labour” and “labour” makes it difficult to estimate the number of child labourers in India. “ The term “unpaid employees” was not included in the 1971 official census of child labourers. Even though unpaid workers were included in official estimates, children who tend “cattle,” “collect water and wood,” and prepare “meals” as part of their household chores were not classified as “working children” in 1981. Even if they are paid, children who labour with their parents and street kids who act as “prostitutes” and “beggars” are either “underreported or not reported at all.” Children helping “hawkers”, “shoe shiners”, and “newspaper salespeople.” If this “underreporting” was corrected in subsequent censuses is uncertain. “Child homelessness,” “poor birth records,” “informal sector jobs,” and “large refugee populations” are other factors that affect underreporting.[4]

SO MUCH TO BE DONE – YET SO LITTLE DONE

Critics argue that India’s legal system is poorly administered and rife with loopholes. Employers can thus avoid paying such fines by altering their production processes or contacting government officials. The Child Labor Act also doesn’t deal with the primary causes of child labour in India, which include “poverty,” “caste discrimination,” a “lack of educational possibilities,” and “misconceptions” regarding the nature of children’s work. Despite enormous advancements in over the past ten years India has received, in the Child Development Index for “education,” “nutrition,” and “child health” it is ranked one of the lowest.  Despite the Child Protection Act, there are several ways that children’s rights are violated, such as when they are “denied” or “unable” to access their rights to “food,” “education,” and “health.” “, as well as defence against exploitation. These days, discovering child labour cases in the Law Reports is like hunting for a “needle in a haystack “.  Perhaps the reason is because not many cases are brought to higher courts. This may be unfortunately the truth, despite the government’s declarations that “children are the nation’s greatest wealth” and that the “country’s future” is inextricably linked to how well they are raised and fed, and that child labour is not a viable choice.”[5]

In M.C Mehta v. State Of Tamil Nadu And Others [6] , the decision was an important first-step in protecting the rights of India’s child labours. According to the Court, “poverty is the fundamental motive” for minors to work. The Court ordered enterprises to pay these children a minimal wage and to ensure that they are insured in order to safeguard against child labour abuse. The “welfare fund” and offering “recreational” and “medical services” were established by the decree in an effort to balance children’s desire for employment with the Constitution’s guarantee of “a good standard of living.” In this case, the Court was limited in its duty as a “policymaker.” ” No kid under the age of 14 shall be compelled or permitted to work in any industry”, according to the Factories Act. It is confusing how the Supreme Court reconciled its decision to let children to work in factories “if they are packing matches rather than making them” with its restriction on “any factory” activity. The Court’s apparent acceptance of the “nimble fingers” interpretation of children’s work is another matter of controversy. They observed that the young workers’ “Sensitive hands are better adapted to sorting out the produced commodities and prepping them for packing. Several human rights groups, including Human Rights Watch, have questioned the fundamental premise of “nimble fingers”.[7]

WHAT THE COURT SHOULD/COULD HAVE DONE

The Court stressed that employers must contribute to the “well-being of children at work,” whether through a “insurance scheme” or by making contributions to a “welfare fund,” but it made no mention of the “potential penalties for failing to pay children a minimum wage” or “employing children” in the manufacturing process. Despite the arguments, the Court stated that poverty is the “fundamental reason that leads parents of a child” to secure employment . The Court’s final decision too represented this concern about poverty; rather than outright prohibiting child labour, the Court tried to regulate it in order to protect working children’s dignity and standard of living. Otherwise, “no parent, especially no mother, would want a young child to work in a dangerous workplace.” The court stated that unless a family’s “alternative income” is ensured, the “topic of eradication of child labour” would really remain a “will-o’-the-wisp.” Rather than outright outlawing child labour, the Court tried to strike a “balance between the child’s economic necessities and his or her basic rights”. Child labour will cease to exist once “poverty is removed”, according to the court. The reasoning is that if there is a low unemployment rate, then children will be less likely to have to work and more likely to attend school. [8]

However, is poverty actually the fundamental problem? Since 1991, India’s economy has grown at an unmatched rate. However, it indicates that child labour is “at the same levels as in preceding decades in the 1990s.” This figure demonstrates that “stopping child labour alone will not reduce poverty.” The “socioeconomic elements” that encourage children to work must be addressed in order to stop child labour in India. Long-held beliefs about “women’s education,” the “value of formal schooling,” and “structural concerns linked to caste, “religion,” and “class” must be dispelled if child labour is to be eradicated. The legal system in India does not go far enough in resolving these problems. The Child Labor Act and the government’s policy towards child labour is rarely implemented and is rife with loopholes that employers may take advantage of. Furthermore, children employed in “non-hazardous areas” “do not get any legal protection.” According to the Act, local labour inspectors are in charge of implementing these regulations. These labour inspectors are overworked and susceptible to “corruption and bribery,” as was previously reported. Even if research indicates that only a “small percentage of enterprises are penalised,” even if labour inspectors are allowed to detain businesses for violating the Act. The most concerning aspect of the decision is that it offers no respite to young children who work in industries other than those that are classified as hazardous.

JUDICIAL COMPROMISE – ALLOWING CHILDREN TO WORK IN PROHIBITED EMPLOYMENT

In India, the legal system is focused on protecting children from the dangers of working in unhygienic conditions. For young children employed in supposedly non-hazardous occupations, there isn’t a comparable regulation, though. Even if the state is successful in outlawing child labour in dangerous occupations, there is always a chance that the practise will either disappear or that the kids will look for employment in occupations that are not covered by the Act or the Court’s decision. In conclusion, the Court impliedly approved of child labour in “non-hazardous industries,” “family businesses,” or “government training centres.” The Campaign Against Child Labour (CACL) undertook a fact-finding tour in Sivakasi in November 2001. It discovered “six children working in two fireworks manufacturers. It also discovered numerous children making fireworks at home”.

Bandhua Mukti Morcha v. Union of India [9]is another public interest litigation filed by the petitioner organisation seeking a “writ of mandamus” directing the government to take steps to “stop the employment of children in the carpet industry” in the State of Uttar Pradesh; “to appoint a committee to investigate their working conditions”; and to issue such “welfare directives” as are appropriate for “total prohibition on the employment of children under the age of 14” in the carpet industry. The court in the present instance acknowledged the worth of children and childhood and what the country would lose if they were not well cared for, but it did not think it was necessary to “push the government to outlaw child labour.” The opposite was asserted, saying that “total employment prohibition may push the children and bulk them up towards poverty and other malicious circumstances, making them “vagrant”, “hard criminals”, and prone to social risks, etc.” Because of this, the court thinks that the (poor) children are more likely to become a danger to society if they don’t work! As a result, the court came to the conclusion that outlawing child labour immediately would be both “impractical” and “counterproductive”. The court ruled that the most “dangerous and undesirable” forms of child labour should be outlawed first, including “slavery,” “bonded labour,” “trafficking,” “prostitution,” “pornography,” and “destructive sorts of labour,” among others. In this way, the court gave “implicit assent to the continuance of other kinds of child labour” while also adding some safeguards.

JUDICIAL RELUCTANT ACCEPTANCE OF CHILD LABOUR?

In Labourers Working on Salal Hydro Project v. State of Jammu and Kashmir[10], the court’s unconditional acknowledgment of child labour as a terrible reality, despite the poverty argument, is rather startling. As the guardian of children’s constitutional rights, the court could have instructed the government to make education mandatory rather than just advising the central government to “persuade the labourers to send their children to a nearby school.” The court’s sympathies should, according to the argument, should be with the children rather than the child labour employers.

Rajangam, Secretary, District Beedi Workers Union v. State of Tamil Nadu [11]was a letter petition addressed to the Supreme Court. The court issued specific directions in this instance, but since the entire process is “home-based” and difficult to monitor, it is unclear if the court’s directives had “any impact on the children participating in the beedi production” enterprise. The court did little to promote the cause of child labour in this industry by failing to provide the state government a clear mandate and instead allowing it to abolish child labour in beedi production in a “phased manner to be established by the state government.”.

WAY FORWARD

The ineffective execution of laws is without a doubt one of the most difficult parts of ending child labour in India. It is important to hold administrative leaders accountable for resolving this problem and to put in place suitable systems for evaluating their performance. The outdated regulations need to be changed since the proliferation of laws leads to confusion and insecurity and ultimately serves as a roadblock to resolving the child labour problem. A universal definition of child should be adopted since different laws establish distinct definitions of children, adding further confusion. The government should take harsh action against companies who utilise children in hazardous employment and impose strict sanctions on those who intentionally involve children in the worst types of child labour, such as “prostitution,” “modern-day slavery,” and so forth.

The Legislature should quickly put the principal judgement of the Judiciary into effect. The Judiciary’s recommendations were ignored by the Legislature in a number of cases. To solve such pressing issues, strong collaboration amongst them is necessary. The implications of child labour, their impact on society, the level of life, and the general development of the nation should also be widely known in society, especially among parents of young children. If India wishes to address the issue of child labour, it must use these methods to achieve the best results.[12] It takes special consideration and awareness of children’s challenges to prevent child exploitation and abuse. Children’s “rights and privileges” require “political will” and “public understanding.” Their “bright,” “healthy,” and “happy” present, as well as their “overall growth,” and advancement, are essential to our future.[13]

CONCLUSION

In conclusion, I think the Indian Supreme Court left several major gaps in its laws governing child labour. The Supreme Court has adopted a conciliatory stance toward the issue and has acknowledged that child labour will always exist in our nation, according to the analysis of child labour decisions provided above. It also didn’t discuss the government’s incapacity to put the law into practise or factors other than poverty that contribute to child labour. The decisions of the Supreme Court of India in these instances will help reduce child labour in the short term, but it is debatable whether the Court’s judgement would be adequate to permanently end the issue. India will need some time to properly outlaw child labour. To achieve this, as discussed India’s political elite must promise to successfully implement its rules and laws. To expose legal violations, “non-governmental organisations (NGOs),” “social activists,” and the “international community” will need to work together. The Indian Supreme Court may be extremely helpful in assisting the Indian government and other authorities in accomplishing this goal through PIL. To achieve the “triumphs and victories” Nehru promised on the eve of India’s independence, this will be a crucial step.[14]

[1] Judicial Response to Child Labour in India : A Human Rights Perspective Thomas Paul

[2] Indian Journal of Industrial Relations , Apr., 2001, Vol. 36, No. 4 (Apr., 2001), pp. 492-498

[3] Arjit Pandey, A Comparative Analysis of Child Labour Laws in US & India, 4 IJLMH 580, 570 – 591(2021)

[4] Ranjan K. Agarwal, The Barefoot Lawyers: Prosecuting Child Labour in the Supreme Court of India, 21 Ariz. J. Int’l & Comp. L. 663 (2004).

[5] Rashmi Shetty, Child Protection Laws in India, ActionAid (2021)

[6] 1991 SCC CRI 897

[7] Id.

[8] Id.

[9] 1984 AIR 802

[10] (1984) 3 SCC 538

[11] Supl. (2) 357 1992 SCC (1) 221

[12] supra note 1

[13] Jaimala Chahand, PROTECTION OF CHILDREN RIGHTS: JUDICIAL ACTIVISM IN INDIA, 2 Hcommons 15, 1-20 (2021)

[14] supra note 2

ABSTRACT

Before studying transgender oppression in class, I knew very little about it and did not give transgender oppression any thought. But now that I’ve read and learned about it, I have a clearer understanding of what it is, and I find myself eager to learn more about it. I have come to understand how, even though they are very different, sex and gender were utilized synonymously in our culture. I understood how most forms of “oppression”, “people’s beliefs” and “values” are based on a “cycle of socialization” that starts in childhood. (Stock, 2022) For example- my parents used to dress me in jeans, sports dresses, and colors like red and blue. I was taught, like many other people, that because I was a boy, I was not supposed to like barbies or dolls.  In this paper, I try to tackle the gender-critical argument against trans-inclusion. The purpose of this paper is to support the claim that Trans inclusion plays a very important role. I also take into account the arguments put out by feminists like Janice Raymond, who, as far as I’m aware, is well-known for her work against violence, sexual exploitation, and medical mistreatment of women as well as her contentious work criticizing transsexuality and the transgender rights movement. Finally, I make a statement about transgender issues in India.

INTRODUCTION

“If you see inequality as a “them” problem or “unfortunate other” problem, that is a problem,”

• Kimberle Crenshaw (STEINMETZ, 2022)

Bem (1974) wrote a ground-breaking article on “psychological androgyny”, and it has been more than 40 years since then. She called for the elimination of gender as a “stable feature” consisting of “discrete categories”, challenging the “binary view” of gender in “western academia”. (Bem, 2022) However even now, the “binary system,” in which male and female are “opposites,” is often believed to be the sole way. The ideology that promotes “heterosexuality as the superior”, “legitimate”, and “natural way” to express “sexuality” is the foundation of harassment of LGBTQ people. (WEGNER, 2022) Because of this, I think “trans inclusivity” is crucial to feminism’s battles. However, they frequently aren’t included in it since a “trans woman” in particular isn’t recognized as one of them, which is still an issue. Trans and gender non-conforming” persons have suffered “discrimination”, “hate speech”, “threats”, and “harassment” at the hands of the “feminist movement” throughout the “second wave” in the 1970s and still do now. The book “Transsexual Empire: The Making of the He-She” by feminist Janice Raymond, for instance, claims that “all transsexuals rape women’s bodies by reducing the real female form to an artifact, appropriating the body for themselves.” (Kacere, 2022)

What these gender-critical feminists overlook is that “transgender people” are more likely to endure “abuse” and relatively higher levels of “discrimination” in “housing”, “work”, and “access to healthcare”. Even though women experience discrimination, as is validly claimed in the video “Contra points”, it is still preferable to be a “she” than an “it” once you start passing as a woman.

Even Susan Stryker in her article gives her own example that

“…I am perceived as a woman (which is most of the time), I experience the same misogyny as other women, and to the extent that I am perceived as a man (which happens every now and then), I experience the homophobia directed toward gay men..”(emphasis added)

I firmly think that until the most “marginalized members” of our society experience equality, we will not truly have “equality”. So, I believe we should fight for transgender people and try to address gender problems by listening to them. It is crucial to recognize that “trans issues are feminist concerns”, and we must strive to make feminism “trans-inclusive” if we are to create an intersectional and successful “feminist movement”. Because even today, women of colour frequently need to demonstrate their “womanhood”. Numerous top athletes, like Dutee Chand and Caster Semenya, have been made to show proof of their “womanhood” by having their “chromosomes” and “testosterone” levels invasively examined. (5 Things to Know to Make Your Feminism Trans-Inclusive, 2022) Making trans people and other “marginalized members” a fundamental part of the movement is what I believe the battle should be about, not just making the “feminist movement more inclusive”.

I also disagree with Stock’s main argument against “allowing transgender people into locations reserved for women, which is that doing so puts cisgender women at risk”. If a “cis-women-only” space is required, in my opinion, name it that. However, when a “women-only space” is read as “cis-women-only”, the groups’ very existence serves to “delegitimize” trans women’s gender “identities and experiences”. I feel that assuming or arguing that “only cis women require the protection of women-only spaces”, insisting that “trans women’s socialization experiences mirror those of cis males”, and not taking “gender identity” seriously as a factor in determining who qualifies as a woman are three mistakes made by gender-critical feminists. (Knight, 2022)

In India, many “trans women”, also known as “hijras” in India, make a living by performing at social events like “weddings” or “selling sex”, as well as “beggaring” at busy intersections and on trains. Transgender individuals can only rent out homes in “Dalit colonies”. This might be the consequence of the “poorer homeowner’s” need to rent out his or her residence for “financial reasons” rather than an “acceptance of trans status”. As Susan stated, there is very little justification to support transgender concerns at the “institutional level” as long as transgender is perceived as the “fraction of a fraction of a movement”, as long as it is thought to represent “only a few insignificant outliers” in a larger and more significant set of data. By the numbers, transgender people will always lose. (Knight, 2022)

The NALSA v. India 2014 AIR SC 2285 ruling is problematic in my opinion because it pathologizes trans people and utilizes “transphobic terminology”. It is also so ambiguous and unclear that it is hard to tell if it actually reflects “inclusion” or a crafty exclusion of trans people from society. The use of the term “eunuch” itself is derogatory, and “hijra” and “eunuch” are used interchangeably throughout the verdict. Even after this judgement. discrimination against them is visible, and they still frequently are rejected by their own family and denied access to “employment”, “education”, and “healthcare”. I feel that the relevant authorities ought to have arranged meetings to discuss the judgment’s ramifications and at the very least translated or simplified the 130-page ruling into local languages that “hijra” sisters could understand.(Semmalar, 2022)

Additionally, I believe that the Transgender Act of 2019 violates the NALSA ruling. The new law, in my opinion, gives one government entity unprecedented authority to decide whether transgender persons are “fit” for legal recognition as who they are. Additionally, it forces people to undergo medical operations they may not wish to have, which is against international and Indian legal precedent and a violation of their fundamental rights. I think that the legal recognition procedure and one’s right to physical autonomy should be handled apart from any medical treatments. But those treatments should be offered and accessible if a person needs medical assistance as part of their personal identification or transition process. (Knight, 2022)

Lastly, I believe that the issue is not that there is a gender binary, but rather that gender is assigned randomly and that anyone who crosses the bounds set by their society is excluded and subjected to institutional oppression and violence. Neither femininity nor masculinity is the issue. It is forced femininity and forced masculinity based on a value system that devalues everything feminine. We may observe how multiple groups are dealing with numerous interrelated problems at once when we view the world through an “intersectional feminist lens”. Building a future that leaves no one behind requires crucial activities such as “showing solidarity” with one another, “challenging power systems”, and “speaking out against the causes of inequality”. (Intersectional feminism: what it means and why it matters right now, 2022)

Submitted by-

Anshuman Patra (20011317)

BBA LLB(Hons.)

2020-2025

BIBLIOGRAPHY

1. Bem, S., 2022. APA PsycNet. [online] Psycnet.apa.org. Available at: <https://psycnet.apa.org/record/1974-27631-001&gt; [Accessed 9 October 2022].
2. Human Rights Campaign. 2022. 5 Things to Know to Make Your Feminism Trans-Inclusive. [online] Available at: <https://www.hrc.org/resources/5-things-to-know-to-make-your-feminism-trans-inclusive&gt; [Accessed 9 October 2022].
3. Kacere, L., 2022. Why the Feminist Movement Must Be Trans-Inclusive. [online] Everyday Feminism. Available at: <https://everydayfeminism.com/2014/02/trans-inclusive-feminist-movement/&gt; [Accessed 9 October 2022].
4. Stock, K., 2022. Academic philosophy and the UK Gender Recognition Act.. [online] Medium. Available at: <https://medium.com/@kathleenstock/academic-philosophy-and-the-uk-gender-recognition-act-6179b315b9dd&gt; [Accessed 9 October 2022].
5. STEINMETZ, K., 2022. She Coined the Term ‘Intersectionality’ Over 30 Years Ago. Here’s What It Means to Her Today. [online] Time. Available at: <https://time.com/5786710/kimberle-crenshaw-intersectionality/&gt; [Accessed 9 October 2022].
6. Semmalar, Gee Imaan. “Unpacking Solidarities of the Oppressed: Notes on Trans Struggles in India.” Women’s Studies Quarterly, vol. 42, no. 3/4, 2014, pp. 286–91. JSTOR, http://www.jstor.org/stable/24365012. Accessed 9 Oct. 2022.
7. UN Women – Headquarters. 2022. Intersectional feminism: what it means and why it matters right now. [online] Available at: <https://www.unwomen.org/en/news/stories/2020/6/explainer-intersectional-feminism-what-it-means-and-why-it-matters&gt; [Accessed 9 October 2022].
8. WEGNER, R., 2022. A psychometric evaluation of the homonegative microaggressions scale. [online] Taylor & Francis. Available at: <https://www.tandfonline.com/doi/abs/10.1080/19359705.2016.1177627&gt; [Accessed 9 October 2022].
9. 2014 AIR SC 2285

ABSTRACT

The major social media platforms, including “Facebook”, “Instagram”, “YouTube”, “Twitter”, and “LinkedIn”, are frequently observed “deleting” or “pulling down” information from their sites that violates the IP rights of the right holders. These platforms have “specific policies” and “processes” in place to safeguard the rights of IP owners and remove any potentially infringing content they may be hosting. For instance, the “Rights Manager” feature on “Facebook” and “Instagram” helps safeguard the material of IP holders by identifying any content that resembles the original work. They also have established procedures to report IP violations on their platforms by stating exactly which links or posts are allegedly infringing on the rights of the IP owners. Instagram said in 2020 that it does not support “embedding” and highlighted that an “explicit authorization” is always required from the original owner of any work before any copyrighted information is placed on Instagram. This remark was made in response to a case of copyright violation in the United States. YouTube, a platform for sharing videos, also has extensive IP security measures in place. Through a straightforward webform on this website, one may submit separate “takedown requests” for “copyright” and “trademark violations”. The same is true for Twitter’s trademark policy, which details what constitutes infringement and what doesn’t, and its copyright policy, which outlines what qualifies fair use and what doesn’t. (Banerjee)

One party that frequently finds itself the target” of legal action in situations of internet infringement is the “intermediary”, or the location where the infringing information was posted. These are the locations where anyone may go and ‘submit their work”, regardless of “whether or not” it violates the copyright of another person. In addition, it has become difficult for these websites to control the information that is placed on them, which has led to each of them “developing their own infringement rules” that they adhere to in order to reduce the danger of copyright infringement. The paper looks at when and if social media sites like Facebook, Twitter, and Google are responsible for the online behaviour of its users. The study will briefly review the relevant clauses before concentrating on India’s and the US’s current situations.

INTRODUCTION

Today, it’s possible that more people explore the “virtual” world than the physical one, and “Facebook may be the most frequently read “book.” Everybody is a “journalist” on social media, therefore “newspapers” and other “conventional media” no longer hold the monopoly on “public opinion”. YouTube”, “Instagram”, and other platforms pose a severe threat to “art galleries” and “exhibitions”. “Universities”, “libraries”, “scholars”, and “publishers” are no longer the only sources of information and “truth” judgments. The “conventional hallows of knowledge” are challenged by “virtual learning”, whereas reliable websites impart “knowledge” without charging any fees. Sharing of information has become more quicker and simpler because to social media tools like “WhatsApp”, “Messenger”, and “Instagram”.

As of “January 2022, there were 4.62 billion users”, which means that their “influence and reach” now extend to more than “half of the world’s population”. Our lives have been completely “transformed” by the introduction of “Internet intermediaries” including “Internet service providers”, “social media platforms”, and search engines.[1] Internet intermediaries making money off of “user-generated material”, especially “illegal content” like copyright infringements. Large organisations that “monetize” this material include “Facebook, Inc.” and “Alphabet, Inc”. (the parent company of “YouTube” and “Google”), who each make millions of crores annually. This raises a number of issues, including: Should they be required to keep an eye on the content that users “upload on their platforms”? Should they, even if they are its users, be “made responsible” for the activities of other parties? (Vishal)

PROVISIONS FOR EMERGING ISSUES OF ONLINE COPYRIGHT INFRINGEMENT

Copyright infringement is the “manufacture of an intellectual property work without the consent of the copyright owner”. When a “third party” infringes the “rights of the copyright owner, such as their exclusive ownership of a work for a certain amount of time, a copyright infringement occurs. Well-known entertainment goods like “music” and “movies” are frequently violated by “copycats”. “Future obligations” or “cash set aside” in the case of a lawsuit may emerge from infringement litigation. (Copyright Infringement Cases in India 2022) The principal acts of infringement are discussed in Section 51(a), whereas the subsidiary acts of infringement are discussed in Section 51(b). But I think a quick glance makes it clear that the section’s “writers” did not, unless a broad interpretation was provided, take into account the burgeoning problems of “online copyright infringement”. According to the clause, infringement occurs when someone violates a copyright without the owner’s “consent” or when the owner permits an infringement to occur somewhere for “financial gain”. The expression “any place” allows for the possibility of reading “internet pages” and contents as potential locations for intellectual property infringement. Thus, the question of “intermediary websites” is raised. (Vishal)

Internet intermediaries should be left to their own devices and not subject to governmental control, a view that was largely shared in the early days of the Internet. However, in an effort to stop infringement and recoup their losses, the owners of copyrighted content started holding these “internet intermediaries accountable” for the violations of their users.  Religious Technology Center v. Netcom On-Line Communications Services, Inc. (907 F. Supp. 1361 (N.D. Cal. 1995)), one of the first cases to address the “issue of internet intermediaries’ liability” for online copyright infringement, held that while the “internet intermediary is not directly responsible for copyright violations committed by its subscribers”, it may be partially responsible if it “knew” or should have known about the violations. The rationale behind this is that because they operate as the gatekeepers to the Internet and web-based services, these intermediaries are best positioned to keep an eye on the actions of their subscribers and, as a result, can stop them from violating copyright. (Kamil)

The single chapter of the IT Act devoted to the topic of intermediary liability is Chapter XII. In the circumstances listed in Section 79 of the Act, the intermediary is excluded from liability relating third party information. The clause is comparable to the “safe harbour” provisions of the “Digital Millennium Copyright Act” in the United States and the “European E-Commerce Directive”. It specifically specifies that “an intermediary is not responsible for any content created by third parties.”  The recent ruling against YouTube in M/s Shri Krishna International etc. v. Google India Pvt. Ltd. and others has demonstrated that the “safe harbour” will only be given if these requirements are met and if the intermediary actually played no part in the infringement at all. (Intermediary Liability)

CHALLENGES FACED BY INTERMEDIARIES

As was already said, intermediaries assume that the public has granted them permission to convey their opinions. Since they never know what could be uploaded on this website, they run a “very high risk” as a result. Following the publication of an “MMS film” showing two students in lewd situations, the “CEO of baazee.com (now eBay. in)” took the brunt of the criticism. Even though he was unaware that such information was placed on the internet, this led to the CEO’s incarceration. That lawsuit paved the way for holding ISPs and other middlemen accountable for the material put on them. As a result, even if they had a medium volume of material flow, it was almost impossible for the intermediaries to go over each and every article submitted to the website before publishing. This produced a highly unfriendly market position for them. In Facebook Inc. v. Surinder Malik & Ors2 and Instagram LLC v. Surinder Malik & Ors3, the Delhi High Court made it clear that “although online intermediaries like Facebook and Instagram may not actively participate in the posting of the infringing contents on their platforms, as facilitators of the infringement, they are under a duty to remove such content” as soon as it is brought to their attention or knowledge. (Intermediary Liability)

In order to reduce “dissent”, “hate speech”, “privacy violations”, and the like, governments all over the world are “putting more pressure on intermediaries to block their users’ objectionable online content.” This is because the majority of “creative expression” today takes place over communications networks run by private companies. Making communication intermediaries “legally liable” for the “actions and words” of their users is one way to exert pressure. Even as governments work to address very real policy issues, liability regimes that subject platform businesses to legal risk for users’ online activities constitute “censorship-by-proxy” and endanger both free “speech and innovation”.(Intermediary Liability)

But since the legislation does not clearly specify the type of content that is prohibited by the law, there is “little clarity” about the rule on intermediaries. What steps the intermediary should take when it discovers such information is “unclear”. Another reason why many intermediaries have taken matters of censorship into their “own hands” which doing so might be perceived as an infringement on the “constitutionally protected right to free speech” and “expression of users”. Because figures show that “takedown notices” have significantly grown, violating fundamental human rights and having a “chilling effect” on free expression mainly because intermediaries are trying to avoid their responsibility. This is what is typically seen nowadays. This is the reason India’s intermediary law is having issues. ( Liability of Online Intermediaries under the Copyright Regime)

DRAFT AMENDMENTS TO THE INFORMATION TECHNOLOGY (INTERMEDIARIES GUIDELINES) ACT, 2018

YouTubers, particularly those who focus on commentary, frequently respond to specific videos in order to produce their own material, which they then upload to their channels. Numerous tiny YouTube channels are persecuted by large corporations, which copyright strike their videos even when they utilise the content in accordance with YouTube’s “fair use” policies. “Reuploading photographs” by users without the “original uploader’s knowledge” or “authorization” is one of the most prevalent copyright infringement situations in social media today. When it comes to copyright infringement, “professional photographers”, “journalists”, “video producers”, and “vocalists” are the worst victims. A “Haitian photographer was given $1.22 million in 2013” when businesses began using the images of the disaster he had already uploaded on social media. Social media has seen the emergence of the meme notion in recent years as a means of disseminating humorous representation in the form of visuals. Meme producers typically post them with specific context to make them appear hilarious by using a video clip, an image from a movie, or any other copyrighted depiction. (Dhankhar)

Due to the shifting character of “internet intermediary liability”, it has been suggested that the intermediary regulations be modified in 2018. This has created a lot of discussion about the “Draft Amendments to the Information Technology (Intermediaries Guidelines) Act, 2018”. According to it, in order to identify illegal content on the platforms, the intermediaries must apply automated filters, according to rule 3(9) of the proposed rules. The proposal was appropriately the target of a number of criticisms since it appeared to be a step closer to the privatisation of justice because it would allow intermediaries and their algorithms to control what material is published online. Although the most blatant inconsistency between the regulations and the constitutional legal framework (specifically with the Shreya Singhal Judgment) exists, there are other ramifications of such a rule for online copyright that might endanger the free flow of creative information online. (Nithya)

PROACTIVE MONITORING MECHANISM

The entire idea of proactive monitoring contests the “notice” and “takedown procedure” as well as the “safe harbour paradigm of intermediary immunity”. The “safe harbour paradigm” is founded on the fundamental notion that intermediates are simply that “they have no control over the material that is sent via platforms”. The safe harbour is only offered to intermediaries that act as nothing more than content carriers and passively transmit data from third parties. The intermediaries would no longer be seen as “passive intermediaries” but rather as companies that have complete control over the material on their platforms if requested to monitor the content on the platforms. This would be in direct opposition to the rationale supporting the safe harbour. Thus, it can only be inferred that a proactive monitoring system enabled by AI technologies would not be able to coexist with the safe harbour paradigm for intermediaries that is already in place in many countries, including India, the EU, and the USA. (Nithya)

“State-mandated proactive monitoring” would also result in adopting an unusual and risky deviation from the “Notice and Takedown process” that was being used in the majority of nations, much as how it conflicts with the “safe harbour paradigm”. This is because, unlike the “notice and takedown procedure”, which allowed users and courts to determine whether or not a given piece of information should remain online, “auto-filters” used by intermediaries would force these private business platforms to make that decision. Such auto-filters may even infringe the rights of the right owners guaranteed under section 14 of the Copyright Act of 1957 in the event of online copyrighted material. (Nithya)

Along with the issues with the current judicial system, it’s important to address the risk posed by AI-enabled systems that forecast “false positives”. There is a real risk that the filters would mistakenly identify a “non-infringing work as an infringing one”, resulting in the removal of the work from the platform. This is because not all AI tools can “comprehend or perceive some of the very well-established doctrines in copyright law” (like the degree of originality, the idea-expression dichotomy, etc.) as meticulously as a Court of Law. The problem of false positives by YouTube’s own freely used automatic filter tool, Content ID19, has been caused by the inability to recognise and detect works under the well-known copyright doctrine of fair use. According to platforms like YouTube, disclosing the criteria used by the AI technologies to evaluate the material would put them at danger of losing their competitive advantage. Because the filter’s algorithms are opaque, producers are unable to identify a legitimate technique to get beyond the automated tools of intermediaries. Since the AI technologies also block a particular piece of information from resurfacing on the site, the serious repercussions of false positives will be increased even more. This emphasises how dangerous proactive surveillance by intermediaries would be for the unrestricted spread of creative creations online. (Nithya)

WHATSAPP, TELEGRAM ENABLING THE CIRCULATION OF THE E-NEWSPAPERS

In Bennett Coleman Co. Ltd. v. Whatsapp Inc. and Ors, the Delhi High Court granted an ad interim injunction prohibiting the Defendants, including the popular instant messaging services WhatsApp and Telegram, from “copying”, “distributing”, “adopting”, “reproducing”, “transmitting”, or otherwise “disseminating the e-newspapers” published by the Plaintiff through any website or portal

The Plaintiff, who owns a number of well-known newspapers in India, including The Times of India, filed a lawsuit for copyright infringement against WhatsApp and Telegram on the grounds that “those services were illegally disseminating the plaintiff’s e-newspapers and violating the copyrights of the “original literary works” they had published in those publications.” The plaintiff claimed to be the sole owner of the copyright to the literary works, which included the freedom to duplicate and share the content in any format. Therefore, it was recognised that the Defendants were facilitating free downloads by freely broadcasting the e-newspapers. Additionally, it was claimed that users were regularly contributing PDF versions of electronic newspapers through various groups on these platforms.

The Hon’ble Justice ruled in favour of the plaintiff, saying that because “the plaintiff is a sole owner of the copyright in the claimed literary work, holds all rights to it in whatever material forms.” It is against the plaintiff’s rights for defendants to distribute copies of the plaintiff’s electronic newspapers in this manner. The Court issued notices to “WhatsApp, Telegram and other Defendants who were allegedly involved in or enabling the circulation of the e-newspapers of the Plaintiff.”

PIRACY THROUGH SOCIAL MEDIA PLATFORMS AND MESSAGING APPLICATIONS

It is important to remember that copyrighted content has been threatened by piracy in the entertainment sector since the advent of “DVDs and CD players”; nevertheless, in recent years, pirated content has spread more widely thanks to internet streaming and mobile applications. In the case Zee Entertainment Enterprises v. Tejendra Modi and Ors., the plaintiff alleged that the cinematographic film “Radhe: Your Most Wanted Bhai” (the “film”) violated their exclusive licencing and exploitation rights. The plaintiff claimed that once the movie was made available on their digital entertainment streaming service, it was pirated on social media sites and through messaging services like WhatsApp. The Plaintiff alleged that the Defendants were disseminating the movie’s material on social media sites like WhatsApp, even though the app’s Terms of Service explicitly prohibit users from abusing their services to violate intellectual property rights. A temporary injunction prohibiting the defendants from “unauthorizedly storing”, “reproducing”, “communicating”, “disseminating”, “circulating”, “copying”, “selling”, “offering for sale” or “making available copies of the film or any other portion thereof”, through WhatsApp or any other means or modes, that may infringe the Plaintiff’s copyright in the film” was issued by the Delhi High Court as a result. It is also important to note that the Court in this instance reversed the instructions included in the earlier judgement wherein the Court had suspended the WhatsApp accounts of certain Defendants and acknowledged the necessity for “actual knowledge” for intermediaries to be held accountable. (Sehgal)

COPYRIGHT INFRINGEMENT IN THE UNITED STATES OF AMERICA

The “doctrine of inducement” has frequently been used by American courts to decide “whether a distributor (intermediary) actively encourages the use of its platform or device to violate copyrighted content”. In MGM Studios v. Grokster Ltd., the U.S. Supreme Court ruled unanimously that the defendant, a company that facilitates “peer-to-peer file sharing”, could be held liable for IPR infringement on the grounds that it actively encouraged “file sharing and profited from third parties “direct infringement of its intellectual property.

In addition, the United States District Court for the Southern District of New York held that “it would be practical to assert an equal claim of infringement against the defendant since it exercises control over and benefits from the dissemination of such messages” in Arista Records LLC v. Lime Group LLC (discussed on the blog here), even though the court granted a “permanent injunction to shut down the defendant’s file-sharing service”. This verdict was likewise largely founded on the law of inducement, which states that the intermediary who encouraged infringement and indirectly supported it did so in order to benefit. (Iyer)

In re Aimster Copyright Litigation, the U.S. District Court for the Northern District of Illinois addressed the issue of contributory infringement. Since it was difficult to enforce rights individually due to the enormous number of infringers at once, the court placed indirect liability on the intermediary. According to the court, “enforcing accountability against the middleman would be the only workable solution among millions of consumers”. The intermediate was unable to manage all users, but it was able to remove specific content after being informed to do so. Therefore, it is suggested that “the intermediary should be held accountable under the Aimster Rule” when content is not removed because they were indirect contributors. (Iyer)

BALANCE BETWEEN OVER-ENFORCEMENT AND UNDER ENFORCEMENT.

Finding a balance between “over- and under-enforcing copyright laws” is, in my opinion, the major problem with the responsibility imposed on internet intermediaries and its repercussions. On the one hand, excessive oversight of intermediaries would stifle the development of innovative and valuable services, limit market participation, and impede the exercise of fundamental constitutional rights. On the other hand, if the platforms are not closely watched, they may become regular enablers of intellectual property violations, which would stifle online creativity. In order to deal with the overabundance of notifications to take down content, which was implemented to address the aforementioned problem, intermediaries have been forced to participate in enforcement mechanisms using automated algorithms that would filter content that would subject them to liability. (Iyer)

There are several strong reasons against this approach, some of which have been stated in this article, as fresh discussions have erupted over the use of autofilters by internet intermediaries. However, the necessity to enforce such automatic algorithmic struggles has not yet gained much traction. This proactive screening method used by intermediaries in the context of copyright violations would do “more harm than good”. Instead of reducing online copyright violations, it would create conditions that would be extremely harmful to the online spread of creative work. The technique also obviously contradicts the current “safe harbour and notice and takedown models”. Therefore, any legislation that requires internet intermediaries to engage in this practise of AI-enabled auto filtering is a bad move. (Nithya)

WAY FORWARD

The idea of copyright is not all-inclusive. The present issue facing our nation is not a desire to replicate the content of another person’s work, but rather a lack of understanding of copyright rules. Many individuals may not understand all that falls under the definition of “fair use” and what does not, and as a result, they subsequently face the repercussions of copyright infringement through drawn-out legal processes. Therefore, in order to use another person’s original invention, the required permits, licences, and royalties must be obtained. (Dhankhar)

The buck should not stop here, even “when laws are passed and economic crime theories” are put into practise in India. The owners of the copyrights must work hard to identify ways to be more “vigilant”, “assist in forming policies”, “inform decision-makers” when necessary, and “effectively punish infractions”. The “largest publishing market” in the world now is India, which is working hard to catch up with the global situation. A person produces their opinion when they publish something, and in a democracy, that view needs to be “respected”, “defended”, and “safeguarded”. Emerging economies suffer significant losses as a result of copyright violations, and every effort must be taken to minimise these losses. (Dhankhar)

CONCLUSION

In conclusion, the judiciary appears to favour preserving intellectual property, particularly copyrighted content that circulates freely online. According to recent trends, the courts are starting to identify the constantly changing and novel ways that are being used to violate intellectual property rights as a result of technical advancement and the quickening of time brought on by Covid-19. The Judiciary nonetheless appears to be wary of all the issues at play and conscious of the need to strike a “fair balance between the right to free speech, the safe harbour protections” for intermediary liability under Section 79 of the Information Technology Act of 2000, and the rights of copyright holders. (Banerjee)

Copyright and trade mark owners’ intellectual property rights are increasingly under jeopardy as vlogs and reels circulate online. However, it is important to keep in mind that social media sites may only be held liable for IP violations to the degree that IP holders are careful in protecting their rights and notifying intermediaries of any violations. The potential of social media as a digital platform for the dissemination of material produced by a person or organisation is boundless. Social media is, by far, the most effective and convenient medium for the average person to publish and disseminate his or her work of intellect to the general audience. With the ease with which one’s IP may be shared via social media platforms also comes the possibility of IP infringement. IP infringement on social networking sites is frequent in the modern digital era. Such cases of intellectual property infringement inevitably put the middlemen that these social media sites are under the spotlight. (Banerjee)

BIIBLIOGRAPHY

1. Banerjee, Tiyasa. “IP Violations on Social Media Platforms and the Role of Intermediaries – Trademark – India.” IP Violations On Social Media Platforms And The Role Of Intermediaries – Trademark – India, Sujata Chaudhri IP Attorneys, 9 June 2022, https://www.mondaq.com/india/trademark/1200208/ip-violations-on-social-media-platforms-and-the-role-of-intermediaries.

• C, Nithya. “The Liability Regime of Internet Intermediaries for Online Copyright …” IPR Law Org, Centre for Intellectual Property Rights Research and Advocacy National Law School of India University, Bangalore, https://iprlawindia.org/wp-content/uploads/2021/03/Nithya.C.pdf.

• Sehgal, Vrinda. “Courts Recognize the Growing Trend of Copyright Infringement through Mobile Applications and Social Media.” Lexology, Chadha & Chadha Intellectual Property Law Firm, 28 June 2021, https://www.lexology.com/library/detail.aspx?g=0d331cff-16d8-4df7-8ba9-1e1555636305.

• Dhankhar, Ritik. “COPYRIGHT INFRINGEMENT ON SOCIAL MEDIA.” DE JURE NEXUS LAW JOURNAL, https://dejurenexus.com/wp-content/uploads/2021/05/Copyright-Infringement-on-Social-Media-By-Ritik-Dhankhar.pdf.

• Iyer, Abhishek. “Telegram Copyright Infringement Case: India’s Chance to Seek Inspiration from Foreign Principles.” SpicyIP, 9 July 2020, https://spicyip.com/2020/07/telegram-copyright-infringement-case-indias-chance-to-seek-inspiration-from-foreign-prnciples.html.

• “Liability of Online Intermediaries under the Copyright Regime.” Blog | Kashish IPR | Intellectual Property Rights Law Firm, 10 Feb. 2021, https://www.kashishipr.com/blog/liability-of-online-intermediaries-under-thecopyright-regime/.

• “Intermediary Liability.” Center for Internet and Society, https://cyberlaw.stanford.edu/focus-areas/intermediary-liability.

• Kamil, Shafinaz. “Gatekeepers Liability for Internet Intermediaries in Malaysia … – IJBEL.” International Journal of Business, Economics and Law, https://www.ijbel.com/wp-content/uploads/2020/07/IJBEL21_074.pdf.

• Vishal, Vatsalya, and Aditya Sharma. “Into the Crosshairs – The Liability of Online Intermediaries in Case of Copyright Infringement.” Nirma University Law Journal, vol. 8, no. 1, December 2018, pp. 89-96. HeinOnline.

1. “Copyright Infringement Cases in India 2022.” Vakil Search, https://vakilsearch.com/blog/copyright-infringement-cases-in-india/.

INTRODUCTION

Interrogation of suspects and accused is critical in any criminal investigation in order to draw the facts from them. Most tactics, many of that were based on kind of torture which were utilized by investigating authorities to seek data from convicted and the suspected since ancient times. New ways of lie detection have emerged with the advancement of technology which eliminated the police’s use of “third-degree torture.” However, legal problems have been raised about the legality of tests such as Narco Analysis, with some supporting it based on legal considerations and others dismissing it as a flagrant breach of constitutional obligations. (Rathore) The legal principle of “Nemo Tenetur Seipsum Accusare” declares that no one should be forced to offer any evidence, statement, or answer that shows him guilty of any crime. (Nandidni Sathpathy v P. L. Dani, 1978) This ancient legal principle, sometimes known as the “Right to Silence,” is talked about by both Article 20 (3) of the Indian Constitution and the Code of Criminal Procedure. The Identification of Prisoners Act is a long-standing law that provides for the collection of photographs and measurements of offenders. (Manikam V State, 2009) By far, there has been no legal conflict between the aforementioned legislation. However, the Criminal Procedure (Identification) Act of 2022, which supersedes the Identification of Prisoners Act of 1920, has sparked a slew of controversies and debates. It has been argued that the act requires an individual to provide measurements that include not only “finger impressions”, “palm-print impressions”, “footprint impressions”, “photographs”, but also “iris” and “retina scans”, “physical and biological samples”, and “behavioral attributes”, which could violate a person’s right against self-incrimination that is ensured by Article 20(3) of the Indian Constitution. The present article argues that the Criminal procedure Act 2022 must be repealed as it does conflict with the right against self-Incrimination.

ARGUMENTS

One could argue, citing various decisions such as Kathu Kalu’s case, where the court stated that being a “witness” could be equatable to presenting proof in the sense of making oral or written statements, but in the broader sense of the expression, giving a “thumb impression” or impression of “palm” or “foot” or “finger” or “specimen writing” or trying to expose a part of the body by an accused person with the intention of identification are not included in the expression “to be a witness.” Even in Shallendra Nath Sinha v. The State, the Calcutta High Court Division Bench concluded that an order for the accused to produce “specimen handwriting” did not amount to compelling the accused to give testimony and distinguished Sharma’s Case since it involved a search warrant for the production of documents. Also, in Ram Swarup v. State and Others, the Allahabad High Court held that because it would not be a document provided for examination by the court, writing obtained by the court under Section 73 of the Evidence Act would not be regarded as “evidence,” and the court’s directive under Section 73 would not be affected by article 20. (3). (Srivastava, 1996)

But the main problem with this act is that terminologies like “measurements” and “behavioral attributes” leave a lot of space for interpretation, and it also doesn’t clarify what a “biological sample” implies, which may be “Narco analysis”, “Polygraph test”, and “Brain Electrical Activation Profile”. The assumption behind “polygraph testing” is that when a subject lies in response to a question, he or she produces physiological responses that differ from those that occur naturally. Several types of equipment are attached to the subject during the “polygraph examination” to measure and record the subject’s physiological responses. The examiner then reviews these results, analyses them, and assesses the subject’s replies’ believability. “Polygraph examinations” make use of instruments such as “cardiographs”, “pneumographs”, “cardio-cuffs”, and “sensitive electrodes”. They monitor things like “respiration”, “blood pressure”, “blood flow”, “pulse”, and “galvanic skin resistance”. The truthfulness or falsity of the subject is determined by relying on physiological response records. These tests breach the right against self-incrimination because we know that if an accused gives evidence willingly or under a request, he cannot utilize article 20(3), but in this case, the evidence is extracted involuntarily and the accused has no choice to refuse according to the new act. (Sethi & Agarwal, 2021)

The right against self-incrimination was established to protect the integrity of the legal system, prevent false evidence, and ensure fairness. Imposing such measures on the accused would negate the purpose while also raising questions about the fairness of our proceedings. However, it has been emphasized numerous times that the victims’ statements made during the test are not utilized against them, but rather to aid the investigation. (Jain, 2019) But this issue was brought before in the case of Selvi v. State of Karnataka, the Supreme Court dismissed the High Court’s reliance on the “utility”, “reliability”, and “validity” of “narco-analysis tests” and other such tests as means of criminal investigation. The Court determined that forcing an individual to undergo “narco-analysis tests”, “polygraph tests”, and “brain-mapping” constitutes a necessary compulsion. The subject is unable to decide whether or not to answer a question because the responses provided during these tests are not given intentionally and willingly, resulting in “testimonial compulsion”, which is protected under Article 20. (3). The “narco-analysis test,” according to the Court, is a harsh and inhumane treatment that violates an individual’s “right to privacy” and “right against self-incrimination”, and that courts cannot allow the “narco-analysis test” to be administered against the individual’s consent. (Saxena, 2019)

A person can use protection under the right against self-incrimination when the three ingredients of Article 20(3) are satisfied i.e.,  i) the person must be accused of an offense ii) Compulsion to be a witness, iii) Compulsion resulting in giving evidence against himself.  The Criminal Procedure Act violates the right against self-incrimination since it requires the accused to be a witness, which entails giving evidence. Because firstly this act also applies only to those who are guilty of an offense punishable under any law in force at the time or arrested in connection with an offense punishable under any law in force at the day, he must allow a police officer or a prison official to take his measurement. (Criminal Procedure Act, 2022)

Secondly, this act compels the person to be a witness because anyone arrested under any law is required to give his measurements as demanded without any choice. After all, if a person who is compelled to enable measurements to be taken under this act opposes or refuses, the police officer or jail officer may take the measurements lawfully (Criminal Procedure Act, 2022) and this objection to or refusal to allow measures to be taken under this Act would be prosecuted under Section 186 of the Indian Penal Code. (Criminal Procedure Act, 2022)

Thirdly, because the clause is so ambiguous and unclear about what tests would be utilized, the police may threaten the accused with the potential of performing tests like “polygraph tests” to find out the specifics and compel him to be a witness. And such compulsion will result in the person being interrogated giving evidence against himself since the person being interrogated may make self-incriminating remarks due to fears that these procedures will extract the truth. Such behavior on the side of investigators is more likely to occur when the person being interrogated is unaware of his or her legal rights or is otherwise intimidated. Because this statute does not specify terms like “measurements,” “biological sample,” and “behavioral attributes,” the police may end up using tests like “polygraph tests”, as described above. And we know from Selvi v. State of Karnataka that it amounts to testimonial compulsion because the answers given during these examinations are not given knowingly and voluntarily. As a result, it satisfies the three requirements while violating the right to self-incrimination.

Another issue is that all private information, such as someone’s “physical” and “biological samples”, “behavioral characteristics”, “finger impressions”, “iris” and “retina scans”, and so on, is logged and stored in a central database, which is a violation of someone’s privacy from every viewpoint. The act of 2022 further stipulates that data maintained in a national database by the National Crime Records Bureau (NCRB) can be utilized to prove or disprove a case not only in the case in which an accused is now being tried, but in any past, future, or parallel case. The record of measures will be kept in digital or electronic form for “seventy-five” years from the date of collection, which raises concerns not only about it being used for self-incrimination in the future but also about the right to privacy. To illustrate, suppose Mr. A is accused of robbery and is placed in judicial custody; under the Act of 2022, his measurements will be taken and stored in the central database. Assume Mr. A was charged with another offense 30 years later. The result of this is that if Mr. A submits such information for a crime committed today, the investigating officer will use that information to construct a case 30 years later as well. In other words, Mr. A’s information will be used against him to prove his guilt.

In India, not only the constitution but also some CRPC provisions, including Sec 161(2), highlight a suspect’s right to remain silent and that he or she shouldn’t be coerced to give any evidence that could lead to punitive measures against him. “No individual shall be compelled to be a witness against oneself in any criminal proceeding,” the 5th Amendment of the US Constitution states. The preceding right has obtained a broad scope after being construed by the courts in various decisions. In civil and criminal proceedings, the right to self-incrimination applies to both witnesses and parties. It covers both “oral” and “written” evidence, as well as any “disclosures”, such as answers, that support a “criminal conviction” or provide a part of the network of proof needed for a prosecution. It is also a basic aspect in the UK that no one suspected of a crime should be forced to uncover “documents” or “items” that incriminate themselves. Except in a few limited circumstances, no witness, whether party or outsider should be forced to respond to any question or provide any document that could subject the witness (or the witness’s spouse) to “criminal prosecution”, “penalty”, or “forfeiture”. The purpose of this privilege is to motivate people to give testimony while also protecting them from damage or undue difficulty as a result of doing so. (Saxena, 2019)

Other violations by the act include violation of Article 14 of the Constitution by delegating too many powers to the executive in two ways: first, “by giving the executive broad rule-making powers with no guidance”, and second, “by empowering functionaries” like “police” and “prison officers” to decide who they can oblige to give measurements. Furthermore, the act’s section 3 does not anticipate all members of the class of people enlisted giving their measures. Only those individuals who police or prison authorities believe are obliged to furnish the measures will be forced to do so. Because there is no provision outlining any norms or principles by which such a requirement may be evaluated, it is safe to assume that the act is arbitrary in its sight. (JAVED, 2022) Only in the case of a biological sample, an exception is made. The exemption states that a person may decline to provide such samples unless he is arrested for a crime: (i) “against a woman or a child”, or (ii) “with a minimum sentence of “seven years” in jail”. The first exemption is broad in scope. For example, it could contain a theft case involving a woman. A rule like this would contradict the equality of law between someone who stole something from a man and someone who stole something from a woman. (“The Criminal Procedure (Identification) Bill”, 2022)

CONCLUSION

The right against self-incrimination is important to ensuring freedom from police overabundance and torment and providing personal and biometric information under duress and/or without authorization is arbitrary and erroneous. The act of 2022 requires record-keeping, which violates the right to privacy. Instead of empowering such obvious attacks on fundamental rights and privileges, Parliament should enact legislation to protect them. It is more necessary to invest in investigating technology and tools. Sensitizing investigating authorities to better and more efficient methods of investigation is more fruitful than trampling on the fundamental rights of the accused.

In conclusion, the act does not significantly contribute to the goal of working on the sufficiency and efficacy of investigation and enhancing State Machinery but rather increases managerial weights while also infringing on Fundamental rights. Although the Criminal Procedure Bill has now become an act, this provision is quite ambiguous and subject to misuse, so it should be repealed or terms like “measurements,” “behavioral attributes,” and “Biological sample” should be more specific to avoid misuse as they can be used by the state to collect self-incriminating evidence against any arrested, convicted, or detained person without their consent. As previously discussed, this violates the right against self-incrimination guaranteed by Article 20(3) of the Constitution. (Hasan, 2022)

BIBLIOGRAPHY

1. Rathore, D. (n.d.). Article 20 (3) of constitution of india and Narco Analysis. Legal Service India. Retrieved May 15, 2022, from https://www.legalserviceindia.com/article/l375-Article-20-(3)-Of-Constitution-of-India-And-Narco-Analysis.html
2. Nandidni Sathpathy v P. L. Dani (Supreme Court 1978).
3. Srivastava, U. (1996). IMMUNITY FROM SELF INCRIMINATION UNDER ARTICLE 20 (3) OF THE CONSTITUTION OF INDIA. Ijtr.nic.in. Retrieved 15 May 2022, from http://ijtr.nic.in/articles/art19.pdf.
4. Sethi, R., & Agarwal, N. (2021). RIGHT AGAINST SELF-INCRIMINATION: A DETAILED STUDY OF THE CONSTITUTIONAL PROTECTION. JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL], 5(3). Retrieved 15 May 2022, from.
5. Jain, Y. (2019). The right to remain silent: A case commentary on Smt. Selvi v State of Karnataka – iPleaders. iPleaders. Retrieved 15 May 2022, from https://blog.ipleaders.in/right-remain-silent-case-commentary-smt-selvi-v-state-karnataka/.
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7. Criminal Procedure Act (2022).
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