Month: June 2013

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Kerala government’s insincere circular sanctioning child marriage crimes

Not many of you are familiar with this travesty (Malayalam link) yet. That is a circular from the Department of Local Self-Government of the Government of Kerala signed by its Principal Secretary. It encourages marriage registrars to register Muslim marriages even where the groom is less than 21 years of age or the bride is less than 18 (but older than 16) years of age, as long as (ha!) the marriage had the approval of the guardians of the bride and the groom. Quite predictably, the circular has raised a stink. See here, here, and here.

How dumb is the Department of Local Self-Government?

Did the Department not know that it was encouraging marriage registrars to commit a crime? If they did not, the Department’s pretty stupid because it is pretty clear that it is a crime for a male over the age of 18 to be the groom in a child marriage and for any person to perform, conduct, direct, or abet a child marriage.

Under the Prohibition of Child Marriage Act, 2006, a “child marriage” is one where either the groom has not completed 21 years of age or the bride has not completed 18 years of age.

– Under Section 9, a male adult who contracts a child marriage can be punished with rigorous imprisonment up to two years or a fine of up to one lakh rupees or both.

– Performing, conducting, directing, or abetting a child marriage are made punishable with the same penalties by Section 10.

– Similarly, Section 11 of the Act, a person (including parents and guardians) with charge of a child in a child marriage who does anything to promote the marriage or negligently fails to prevent it from being solemnised, can be punished with the same penalty. There is even a presumption that a person in charge of a child who has contracted a child marriage had negligently failed to prevent its solemnisation.

Suspecting the Department’s intelligence is obviously the more charitable view. If the Department knew that the acts above were crimes, we have to come to the view that the circular is a local revolt against the policy behind the Prohibition of Child Marriage Act, 2006.

How dumb does the Department think we are?

M.K. Muneer of the Indian Union Muslim League, the minister who also holds charge of the Department of Local Self-Government, tried to justify the promotion of child marriages.

Thankfully, Raja Rammohun Roy does not have to hear this.
Thankfully, Raja Rammohun Roy does not have to hear this.

Mr. Muneer’s statement followed a bit of disingenuity in the circular itself. It reasoned that the circular was appropriate because the Muslim personal law did not require that the groom have attained the age of 21 and that bride have attained the age of 18 and that the Prohibition of Child Marriage Act did not declare such marriages void.

That the Muslim personal law does not set an age requirement for the validity of a marriage has no relation to the definition of the crimes under Sections 9, 10, and 11 of the Prohibition of Child Marriage Act. The marriage may be valid but that need not stop the police from proceeding against those who have committed actions amounting to those crimes. The Prohibition of Child Marriage Act does not declare child marriages void but that is not because of any confusion about its policy on child marriage. The Act preserves the rights of the parties to the child marriage and those of the children born out of such marriages.

Section 3 however, declares that such marriages are voidable at the option of the party who had been a child at the time of the marriage. Such a person can file a petition in the district court, before attaining two years of majority, to declare the marriage void. The circular therefore, was quite clearly insincere in its selective appreciation of the Prohibition of Child Marriage Act and Registrars would be quite right to cite a fear prison time to not register such marriages.

(Aju John is part of the faculty at myLaw.net.)

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Live Discussion Forum on myLaw.net today!

Faculty members Samar Jha and Deepa Mookerjee will be conducting live Discussion Forum sessions on Intellectual Property Law and Mergers and Acquisitions Laws on myLaw.net today, exclusively for the students of myLaw.net’s programmes on the same. This is a great chance to interact with Samar and Deepa, ask them your questions, get your doubts cleared and share your thoughts, ideas, suggestions and feedback on the programmes. Check out the the timings below and if you’re a student of any of these programmes, be sure to attend!

IP-Samar

 

M&A-Deepa

 

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On regulating campaign finance

Discussion about campaign finance has gained momentum with the general elections around the corner. Jhalak Kakkar, an analyst with PRS Legislative Research, spoke with us about the regulation of campaign finance in India and other countries.

The edited transcript of Ms. Kakkar’s talk is below.

During an election campaign, political parties and candidates require funding. An increase in funding could significantly enhance their electoral outcome and facilitate greater access to voters. Candidates therefore, have an incentive to collect higher levels of funding but this behaviour may have negative implications for good governance. Good candidates, unable to raise sufficient funds, may get blocked out of campaigning and the electoral process. Funds from private sources often come with strings attached and this may result in elected politicians taking decisions that benefit special interests rather than the larger public interest. Politicians in power may in turn exert pressure on potential sponsors to contribute to the electoral campaign. Now, to restrict these adverse possibilities, most democracies regulate the financing of election campaigns.

Campaign finance is regulated around two aspects — (1) individual and group contributions to the electoral campaign funds of both candidates and political parties, and (2) expenditure by candidates and political parties. Both expenditure and contributions are kept in check is by disclosure requirements placed on candidates and political parties. There are civil and criminal penalties for the contravention of these regulations. The framework for regulating campaign finance in India is contained in the Representation of Peoples Act, 1951 and the Conduct of Election Rules, 1961.

Regulating campaign contributions — individuals, groups, and direct public funding

Contributions can come from three broad sources — direct public contributions, individual contributions, and group contributions including those from companies, societies, and trusts. Indian regulations focus largely on contributions by individuals and companies.

Individual contributions: There is no limit on the individual contributions that can be made. This is similar to the position in the U.K. It is interesting to note that in the U.S. and in Canada, there is a limit on individual contributions.

Group contributions: Group contributions and contributions made by companies are regulated under the Companies Act, 1956. Corporate contributions have to be capped at five per cent of the company’s average net profits during the three immediately preceding financial years. Incidentally, in the U.S., there is a ban on direct campaign financing by corporates, banks, and unions.

Foreign contributions: There is also a complete ban on foreign contributions to candidates and parties under the Foreign Contribution Regulation Act, 2010.

Disclosure requirements: Political parties have to disclose all contributions received by them and file them in their income tax returns. A donor, who has contributed more than Rs. 20,000/- has to be disclosed, and these disclosure requirements are largely in line with international practice.

Direct public funding: There is no direct public funding of campaigns in India. There is indirect funding for parties through the allocation of time on television and radio networks for campaigning. The time allocated is proportional to their performance in past elections. In addition, pre-electoral rolls and other documents are distributed to political parties.

Countries like Canada, U.K., and France have varying levels of direct public funding for elections. In India, the question of whether we should move towards a system of direct public funding for electoral campaigns has been debated time and again — for instance, by the Santhanam Committee in 1964 and the Wanchoo Committee in 1971 — especially given the concern that there is a significant flow of black money into campaign financing. The Law Commission in 1991, and the Administrative Reforms Commission in 2007 agreed that there should be partial state funding of campaign finance. On the other hand, the National Commission to Review the Working of the Constitution cautioned that state funding should be deferred until there is a fool proof regulatory system that will check violations by political parties of the financial limits that have been set and that this should be broadly subject to the effective functioning of political parties themselves.

Regulation of campaign expenditure

There are limits to the campaign expenditure that can be made by a candidate. At the Parliamentary constituency level, the limits vary from ten lakh to twenty-five lakh rupees from state to state and at the State Assembly constituency level, it varies from five to ten lakh rupees. Incidentally, there is no limit on expenditure for propagating the party. Any other expenditure by the party however, is deemed to have been made by the candidate.

Different countries have addressed this question differently. The U.S. does not have any restriction on campaign expenditure. The U.K. has placed restrictions on campaign expenditure by a political party but not on campaign restrictions by a candidate. There are certain disclosure requirements though, at the campaign contribution level and at the campaign expenditure level.

The Election Commission of India maintains a check on campaign expenditure. Candidates have to lodge expenditure accounts with the District Election Commissioner within thirty days of incurring the expenditure. Secondly, candidates to disclose their income and assets to the Election Commission of India, which puts those details up on its website.

Penalties

There are civil and criminal penalties for non-compliance with both contribution and expenditure regulations. If a candidate has failed to lodge election expenses or has spent more than the permitted amount, he will be disqualified. If a company has made contributions in excess of the specified limit, they will be fined up to three times the amount contributed. A person who accepts foreign funding even though it has specifically been banned can be imprisoned up to five years, or fined or both.

 

(Aju John is part of the faculty at myLaw.net)

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India lacks a law protecting trade secrets

On June 9, 2013, Edward Joseph Snowden disclosed that he had leaked details of the Central Intelligence Agency’s covert operations around the world. In 2010, another Edward, United States army soldier Private Bradley Edward Manning, leaked classified United States military data, diplomatic cables, and war logs to Wikileaks. Both of them are being compared to Daniel Ellsberg, the former United States Military analyst who released the Pentagon Papers revealing information about U.S. Government policies on the Vietnam War. Besides governments around the world, these events have made companies nervous about the protection of their sensitive information. In this context, it is important to discuss the Indian law regarding the protection of trade secrets and the misappropriation of confidential information.

Trade secrets and industrial espionage

According to the World Intellectual Property Organisation, any confidential business information, which provides an enterprise a competitive edge, may be considered a “trade secret” and can include a wide array of things, such as formulae, advertising strategies, lists of suppliers and clients, and manufacturing processes. According to the American Uniform Trade Secrets Act (“UTSA”) a “trade secret” is any information that has independent economic value not readily available to others. The definition under the American Economic Espionage Act (“EEA”) is even broader. These trade secrets may be misappropriated through industrial espionage, which is the theft of trade secrets by removing, copying, or recording them so that a competitor may use them.

Coke's secret

In the United States, these acts are offences under the UTSA or the EEA. India however, does not have a formal legislation governing the protection of trade secrets, the misappropriation of confidential information, or industrial espionage. Confidential information and trade secrets are protected through contracts. Typically, employers restrict employees from leaking trade secrets or confidential information by having non-disclosure and confidentiality clauses in employment agreements. However, Indian courts have been reluctant to enforce such restrictive convenants and non-disclosure agreements, terming them as unenforceable under Section 27 (Agreements in restraint of trade) of the Indian Contract Act, 1872.

Even if such clauses were valid, there is no prohibition on the disclosure of confidential information and trade secrets — merely a contractual obligation. So, a person who is not privy to any agreement, such as a employer-employee agreement, has no obligation to protect any information he has received. The UTSA and the EEA prohibit the missappropriation of trade secrets by any third party even in the absence of any confidentiality agreement.

Indian courts however, have stated that if any person recieves some information in confidence, such a person cannot take unfair advantage or make profit out of the disclosure or use of that information. (See, for instance, Zee Telefilms v. Sundial Communications.) This is known as the “Springboard doctrine” and Indian courts have had to rely on common law principles and the decisions of foreign courts to adopt it.

Thus, the only remedy available is of a civil nature. In India, a person aggrieved in such cases can recieve nominal damages from the person charged with disclosure of confidential information. No Indian law prohibits or punishes industrial espionage.

A person can also leak trade secrets overseas through the Internet. Whereas the EEA prohibits a person from leaking trade secrets anywhere in the world, the Indian law on this point is not clear.

Intellectual-Property-LawArticle 39 of the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”) provides for the protection of trade secrets. A party to the TRIPS, India has made sui generis legislation for the protection plant varieties and semi-conductor integrated circuits in the past. The Indian government can look into making sui generis legislation for the protection of trade secrets, instead of relying on common law principles and foreign precedents.

 

(Samar Jha is part of the faculty on myLaw.net.)

(Click here to learn more about our programme on Intellectual Property Law.)

 

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Who Watches the Watchdogs? Random thoughts on destroying monoliths

watchmen1

In September, 1986, when the first issue of a comic book miniseries called Watchmen hit the stands in the US, no one was really quite ready for it. Although he had already begun garnering respect in the comic book industry, Alan Moore was not yet the household name he is today, and his grim vision of the usually bright, cheerful and simplistic good-triumphs-over-evil world of superheroes was completely unprecedented. Of course, by now everyone with any interest in pop culture has at least heard of the Watchmen series. It is now considered a seminal work in not just the comic industry, but also in the world of English literature at large: in 2005, Time magazine included it in its list of the “All-Time 100 Greatest Novels”, the only graphic novel to be given that honour, and in 2009, against Alan Moore’s wishes, it was made into a major blockbuster by Zack Snyder.

220px-Alan_Moore_(2)

Alan Moore

It seems Alan Moore initially got the idea for Watchmen from a famous Latin phrase: “Quis custodiet ipsos custodes?” which can be literally translated to “Who will guard the guards themselves?”, or, more famously, “Who watches the watchmen?” (which also became the popular tagline for the series as well as the movie). The phrase is often attributed to Plato, because it just seems like something he would have said in the Republic whilst waxing eloquent on the nature of power and its corrupting influence on people who have it. But these words were not Plato’s, and the phrase has been taken out of context and given a deeper, more philosophical meaning than was originally intended.

At some point towards the end of the 1st century AD (or towards the beginning of the 2nd century AD; no one’s really sure), Juvenal, a Roman poet we know almost nothing about, wrote a collection of poems called the Satires. It included a poem which was quite unequivocally misogynistic, ruminating on women’s innate tendencies towards “immoral behaviour” and men’s inability to control it. The phrase comes from the following lines:

I know

the plan that my friends always advise me to adopt:

“Bolt her in, constrain her!” But who can watch

the watchmen? They keep quiet about the girl’s

secrets and get her as their payment; everyone hushes it up.

juvenal-1-sized

Juvenal

What Watchmen, and the phrase it originates from, illustrate starkly is the fact that things are not as they seem on the surface; culturally/historically accepted and defined “truths” are often unreliable. Watchmen was Alan Moore’s deconstruction of the superhero myth in real-world terms – where he explored the possibility that under the shiny, awe-inspiring surface, beings with godlike powers could be flawed, capricious, disturbed, violent and sociopathic individuals. The superhero as a noble, selfless force for good was a cultural monolith, seldom questioned as a trope. Alan Moore decided to question that one-dimensional viewpoint, and the result was a masterpiece. On a different level, the present use of “Who watches the watchmen” is in itself an example of how words can be de-contextualised and given a different, more socio-culturally acceptable meaning. It tells us that constant deconstruction and analysis is the very least of our responsibilities as thinking, rational beings.

My long-winded and clumsily constructed arguments above have a point, and I should really get to it.

On June 17, 2013, the Hindu ran a now (in)famous article on the now (in)famous order of the Madras High Court, stating unequivocally that the court had proclaimed that if an unmarried couple have sex, they will be considered married. The lack of a nuanced and balanced approach in the piece clearly showed that the reporter hadn’t spent too much time on reading and understanding the order and its context. Within a few hours, a number of articles criticising the Hindu’s simplistic coverage of the complex issue appeared all over the internet. However, by that time social media websites had already exploded with misplaced outrage and more than a few inappropriate jokes. Of course other news sites had also run similar stories, but The Hindu commands a certain degree of respect, even among its detractors, for its high standards of reportage and journalism – misunderstanding an issue isn’t usually a charge levelled against it. Fortunately, we live in an age in which information is readily available and can be disseminated within seconds. Public opinion which, for a while, was positioned strongly against the order is now balancing out as a more reasoned and informed discourse unfolds. The mainstream media stands as a source of factual information and is, by extension, regarded as a purveyor of truth. Here is another historical monolith on which society leans. This is not unreasonable given that searching for the truth and presenting it to the people has been the media’s fundamental function. But recent history has taught us that the media isn’t above selling news space, taking editorial mandates from large corporate investors, blurring the line between reportage and opinion, sensationalising the news through hyperbole and using questionable techniques to get a story. Now, for the consumer of mass media, the “truth” has become a far more complicated and difficult thing to get to.

Chennai_High_Court_1200x800Madras High Court  

It is clear now that the Madras High Court’s decision is quite progressive on women’s rights and reverses an extremely egregious order of the lower court. However, I used the term “misplaced outrage” earlier, because there should be outrage at how the Madras High Court seems to think that the only significant indicator of a marriage is sex. And if that isn’t the intention of the order, there should be outrage at how badly and dangerously the decision is worded. The Madras High Court has defended the order stating that it “protected Indian culture and welfare of women.” The biggest monolith in this case is this “Indian culture” that the court has tried so earnestly to protect – this vast, ethereal, omnipotent, nebulous thing which keeps floating in and out of our consciousness, this undefined entity which is powerful enough to unite a billion people, but so fragile that it needs protection at every moment, especially from the “sinful evil” of the west. “Indian culture” is apparently an intractable monolith that refuses to move with the times. It is formless, but alive. It is whatever a few old, conservative and powerful people say it is. And if they are to be believed, every time consenting adults want to have sex outside wedlock, or women wear skirts instead of saris, or you listen to pop music, it has a massive heart attack.

In India, both the media and the judiciary have a proud history of acting as society’s watchdogs. In their own ways, both constantly endeavour to get to the truth. But they are not infallible. It is essential for the citizens of a democracy to think for themselves, look at an issue from every perspective, get all the facts straight, listen to every argument and form an informed and intelligent opinion. Who watches the watchdogs? We do. It’s up to us to ensure that the pillars of democracy never become monoliths.

(Sayak Dasgupta wanders around myLaw.net looking for things to do. When he finds something to do, he fails at it.)