Author: Kartik Sharma

Student at The West Bengal National University of Juridical Sciences.

MOBILE PHONE TOWERS ARE DANGEROUS?

PS: Telephone towers and nature.

An estimated one billion people now have mobile connections in India. It is hard to imagine how many towers exist to support that level of connectivity. But if we wish to know a number, there are around 5 lakh towers and counting. Even though there are many towers, people are complaining about call drops they face now and then. Then there is an additional issue that contradicts this complaint. People primarily perceive cell phone towers as radiation-emitting machines, so they want a lesser number of towers in and around their residential area, but they want better connection quality. Isn’t it ironical that in many ways we demand more of these towers that we believe to be causing possible risks of cancer, radiation and other diseases? However, the government has established that there is no practical evidence that proves these. There is a general perception in the public that towers should not be near schools, hospitals and residential areas. They are associating towers with the increase in various types of health symptoms like depression, headache, nausea, loss of appetite, memory loss, blurred vision, skin and cardiovascular problems. Perhaps it is not the tower that is spreading radiation. Maybe it is the anxiety, the fear that is in us regarding possible radiation in towers that leads to diseases.

According to authorities, the proximity of the tower to a human settlement area is not an issue. Government has established stringent safety norms and only those who comply can raise a tower over a building. Radiation limits have been increased to 1/10th of global standards making India one of the safest countries in this regard. When towers are set up, there are very stringent processes to set them up. How high they must be, what location they have to be at, then there is a line of sight issues; these are some considerations to be looked at. A company must obtain certification by the authorized operator, and if things are not checked, they can easily be removed.

In my understanding, when an antenna’s power is increased, it develops better connectivity for users as the reach-ability of mobile waves increase, and the rise in power creates the discussed problems. For power to be less radiating, towers must be set low, and they should be closer together. It is to better the user connection, smaller towers that are located close to each other are required, and they do not radiate much power.

We must not forget the frequency waves emanating from mobile devices are also harmful to us. It is also said that continuous exposure to a mobile device is more dangerous than a tower. In overseas, the telecom companies are educating people with regards to usage of cell phones example the skull of a child is small, so he must not be exposed to the device like we are. In contrast, there is no visible public initiative been taken by our telecom companies in this regard. Some forums are created by TRAI (Telecom Regulatory Authority of India) and companies, but the popularity of these forums are awful.

Some scientist believes that heavy mobile users are under danger, and the habit of mostly listening to phone from one ear increases chances of brain tumour. We must learn that cell phone use is under our control, but when we talk about towers, we cannot do much about their establishment. Even though no credible evidence has come so far against its (Tower’s) harmful effects, they are a need of the population. There is no published or unpublished literature, so now in my experience that conclusively states whether these towers are harmful or not. There are two aided projects for the study of this subject- government-aided and company aided. Assigned persons under these projects have been and are carrying studies and surveying the psychological disorders of people who are heavy users to establish some literature on harmful effects.

People in authority say that nothing has been proven while people are worried that do they have to suffer from diseases and die before things are determined. We are complaining about everything. If we take towers away, then there will be more call drops, and then we will start complaining about that as well. Hopefully, these devices of the future stay human friendly because we need them. Lastly, one question still makes us think more- if there was a mobile tower in front of our house, would we get it removed?

MAKE IN INDIA OR INVENT IN INDIA?

PC: Indian Express, Feb 28, 2018.

India must focus on discovering, inventing and making in India and not just make in India. Many feel that India cannot produce its own Google or Facebook or Apple because we have an attitude in us that we keep borrowing things from the world and not invent our thoughts that can compete on the world level. ‘Make in India’ is a much-needed program for India. The government and our prime minister have brought at a good time. The country has a fiscal deficit and perhaps, with ‘Make in India’, foreign investments in the country and exports will grow to stabilise the Indian rupee in the international market. If our currency appreciates, then we can also focus on many other initiatives. It is a politically correct decision but for the scheme to succeed the country has to invent and discover locally too.

It must be understood that for India, making things here are quite important, but the quintessential aspect should be making things here without depending on other nations. For this, we must discover and invent and make things in India. A reasonable portion of Indian GDP must be dedicated to research and development and also to the education system so that discoveries and inventions take place from school to college level to start-ups. There must also be a simultaneous effort to foster entrepreneurship so that ‘make in India’ and ‘invent in India’ go hand in hand. The government must also create a culture conducive to entrepreneurship. In Singapore, one can start a business in just 2.5 days whereas in India, on an average it takes about a month. Also, a person aspiring to invent something does not get the required infrastructure and financial assistance to pursue dreams. Given this unfavourable environment, Indian are not interested in discovering and developing. There are perils of Indian bureaucracy which is outdated, definitely inflexible and many times irrational but with breakthroughs by students and can present them with immediate commercial opportunities. There is tremendous talent in India, and it must bloom during college, if not school time. Schools have an instrumental role to play in imparting scientific education from the right age of a child with an emphasis on project development. Children are curious, and if the right direction is given to them in science, they will give India the right direction.

 Indian youth is always driven towards engineering colleges in numbers far more significant than science and discovery, as they consider it a safer choice. With these talented individuals, India has the potential to become an influential scientific nation. Brain drain is an issue in which an Indian goes abroad and contributes immensely to a foreign country. The government must introduce lucrative programs that pull back pool of talented Indians in abroad and also let the existing citizens stay back willingly.

India must become an innovative country in the next 5-10 years. Strong academia is required, which can come through collaboration with the US, and that will lay a strong foundation for India’s growth in the long run. The partnership with the US in primary, higher education and research would benefit India tremendously. Such kind of a strategy will uplift India in high-tech product and service category and increased exports along with domestic consumption of such offerings will take the nation forward to achieve its ‘superpower’ ambition. Only a technologically advanced country can become a superpower. If there is a tie-up with universities for PHD, then we must check that once the students, who’re sent to the US for higher education in the technology field, finish their school, they must come back and serve India. People who go for studies there seldom come back. India will have the onus to provide these people with the employment and opportunities in research and development and give them a life which is on par with the US. Both countries will win in this situation where bilateral trade will increase ten folds also benefiting the ‘make in India’ scheme. Locally assemble and manufactured products will be cheaper; it will lead to much employment, will increase exports and give Indian companies a better global platform and presence.

Since the topic of aspiring to become a superpower is mentioned; it must be noted that ‘Make in India’ will take us in that direction but ‘Discover, Invent and Make in India’ will make us a superpower.

WOMEN AND GENDER EQUALITY: An Outlook

The road towards gender equality has been slow-moving, but people and organisation around the world are committed to meet the objective. We can see that the social and economic policies that are made nowadays by the government have much thought in them. They aim to put women on equal footing with men in all fields. Creating a world which is equal in gender is assumed to be the most challenging effort of the country. It is fundamental for achieving equal human rights, peace, security, sustainable development and productivity.

Every year March 8 is marked as International Women’s Day. It represents women power; it celebrates womanhood and reminds us if the wonders they have given to this world. Do we need it? Yes, for many years. Many women shine in the world despite their stereotypical society. Parenting plays a vital role in women empowerment. Receiving opportunities and the understanding of making use of them make women successful in a gender unequal world. We live in urban development, and many women are privileged here. However, when we go deeper into rural areas, where the majority of the population resides, we see how deprived they genuinely are. We must also look at urban poor people; opportunities are quite narrow for them because the boys either get it or grab it before them.

Women in rural areas talk about National Rural Employment Guarantee schemes. It makes more sense to them than women’s day. Women whose occupation is farming want their farm and produce saved and fundamental rights protected. Their perspective doesn’t go beyond that. This happens because many of them aren’t aware of any scheme at all, as many women are not allowed to socialise freely, move away from home or a particular territory. They must understand the power of the common objective of gender equality as they will ultimately be at the ‘benefit’ receiving end of it. They must fight for women’s right, which is a human right.

We have been talking about Women’s Day. Many females exist in a socially disadvantaged atmosphere. They need this day as a symbol of women empowerment. In firms and politics, until the female’s performance is measured with the same yardstick, which is used to measure men, there will be inequality. Even though there is consciousness awakening is such platforms, there is still a long way to go. When women become successful again, they have much pressure on them. They must keep setting examples for other women; they are subject to societal expectations, and they sometimes have to carry themselves like men. They have so many qualities that they possess, and men don’t. They must keep moving forward.

The less than encouraging thing to notice is that in reality, many women don’t want to be treated as equal. They do not want to take up work which men usually do. When asked for a job with six days work till late hours, majority of women won’t say yes because it is late hours and they must go home to take on the burden of taking care of the family. They feel indebted to the family as they try to balance work and family life, and when they are unable to strike it, they feel guilty. It is because society has brought up women is a stereotypical manner that they are mentally conditioned to think this way. Some are lucky to have a family which backs them up while others have to prioritise and live by their code of life.

A heavily debatable opinion is that women have to be better than men to reach the same status, i.e. gender equality. There is much responsibility for this common objective on all of us. Cities must provide an encouraging environment for women to walk freely at night and do the things they want to, and we must not judge them. They must encourage themselves, and we must give them liberty and atmosphere to fly as they wish.

Society makes a perfect image of women- She has to be good looking, must cook well, must be well cultured. The day it accepts women the way they are, that day will bring about a significant change. A father is seen as the commanding figure while the mother is the nurture at home. That is how we are made. There are things that women must do too for themselves to be ‘gender-equal’. Today women must lead with qualities of both and stay unaffected from things that society labels them with. A sad fact of life is that in India, boys are social security of parents, girls are not yet. Thinking must change. It all starts with how we are raised, and we must raise our boys and girls equally. Once we do that, we will see a significant change till then, gender equality will stay a dream.

CAN HARSHER PUNISHMENTS REDUCE CRIME RATES?

PC: Harsh Punishments backfires in prison, Josh Mitchell/Photolibrary/Getty Images.

Crime is so destructive that not only the victims suffer, but the life of a criminal also undergoes tribulation, and society bears the disturbing news of witnessing it.

It appeals to think that harsh punishment can reduce crime rates. Some criminals are aware of the penalties, but they feel that they will not get caught. They believe this because our crime fighters are limited in number, so efficient vigilance is not always possible over a territory. They know that we have a delayed justice system, procedures are tedious, and thus it doesn’t inhibit wrong intentions. No lawbreaker looks in the law book for penalty or punishment. For some criminals, getting caught does not matter. Committing that particular crime is the only thing which matters to them at that time. They hear, see, feel nothing and have all their senses attached with the wrong intention. For such people, whose minds are so corrupt that there can be no reversal at all, harsh punishment is the way forward.

Some people commit crimes due to unsatisfactory conditions. If India becomes self-sufficient, these crimes will end. There are crimes which occur out of habit, for example, kleptomaniacs (habitual thieves). Such people need rehabilitation more than punishment to condition their mindset and steer it in the right direction. Still, they will get punished as it is in our system. There is varying nature of crimes, and so it cannot be generalized that only harsh punishments reduce crimes. If the justice system is prompt in serving justice, it will substantially reduce crime as it will instil fear in potential lawbreakers. Hence, possible future crimes could be curb to an extent.

We live in a civilized society, and we have a background of a culture which emphasizes the virtue of forgiveness. This virtue shows that humane methods of punishment do work in some cases. Not always do we need to resort to harsh ones. The people who turn into criminals are a part of society, and the reason to ‘why they become criminals when living in the same society’ is a matter of great concern. There must be a stress on moral education at all levels. If it is there, then perhaps crime will reduce.

Crimes cannot be forgiven, and the guilty must be punished, but it does not mean the same person will always remain a criminal. The rebellious lawbreaker inside that person must be eradicated, and a resolve to live non-violent, law-abiding life must be spurred. We must not hate the person but the filth inside the person that created a criminal. If only the person had an atmosphere where he could re-create himself into a better person, then there would be more hope. We see crimes through the eyes of hatred and often get blinded by it. Nobody is born good or bad; the upbringing, circumstance and mental conditioning make a person good or bad.

Enough has been spoken about reducing crime when we should have been making efforts to wipe out the cause that leads to the generation of the criminal mindset. In a developing country like India, millions are starving to death; many have plenty but lacks the moral sense; many think it is fun to commit a crime’ there are many who do it out of emotional outbreak. Some do it because they are situational criminals. If we believe in God, then we must believe in the law of karma. For every good, we will receive will, and for every bad, we will get the same. If we don’t believe in God, then we must believe in our consciousness; we must not think or do anything which makes us fall in our own eyes. Lastly, the solution may not lie in philosophical or even realistic discussions. But why wait for a crime to happen when we must put our energy and mind in churning out ways that eradicate the generation of thought that leads to crime. In a nutshell, harsher punishment might deter people from committing crime to a certain extent, but it is not the only solution. There are more efficient and effective ways to do so as well.

CAN WE ERADICATE POVERTY?

PC: https://sheatwork.com/eradicate-poverty-and-boost-job-creation/.

India has one of the most substantial numbers of poor people in the world. According to a UN report, 1/3 of the world’s impoverished population resides in India. There are 400 million poor people in this country, and about a 180-200 million of them sleep with an empty stomach. According to a rapid survey on children, in 2013-14, 30% of children under five were underweight and malnourished. We see elections with poverty removal agenda but have we seen a considerable improvement?

The current government in India is implementing a platform for universal social scrutiny system where everyone will have a bank account. Many benefits will directly reach into the bank accounts of the poor like those of NREGA, pensions, gas and cylinder subsidies.  Many states have health insurance, so any benefit of it will reach the poor directly if they have a bank account. The initiatives of Jan Dhan Yojna and Aadhaar will also create jobs along with other programs and will help eradicate poverty. Through MUDRA (Micro Units Development & Refinance Agency), Small and Microenterprise business, people will get loans to start a business. These programs aim to create an ecosystem to create jobs and allocate primary level funds. Once this system covers lengths and breadths of our nation, then India may fight poverty effectively. Amazon, Flipkart, Snapdeal are using MUDRA to help their thousands of ‘bottom of the pyramid’ partners to start operations. It shows that today big businesses are also enabling small businesses to flourish.

According to the Academy of Pediatrics (India), one child dies every minute. The WHO tells that about 6% of children suffer from severe acute malnutrition. India has issues of primary health care, children without education and basic amenities, and not just job creation. Since we have to tackle these issues; therefore, spending on the social sector must increase as current spending isn’t enough or it doesn’t reach the end beneficiary.

Yes, poverty reduction is happening in absolute numbers. The government is operating various policies to relax agricultural norms. However, many of the things that we talk about simply don’t exist at the ground level. Poverty reduction has to address agriculture. Farmer suicides are high in Maharashtra, Telangana, Andhra Pradesh and some other states even though the states now have more autonomy for social fund allocation. Suicide is the endpoint of a long unfolding tragedy; for every one farmer suicide, 99 others reach the brink but do not muster enough mental state to do that. We have grown on infrastructures and other fields, but no significant growth has come in agriculture over the years. The price of a farmer’s product is not rising; the costs of agriculture and other expenses are rapidly increasing. They find themselves in a debt trap, and that is why they consider suicide an easy path. National insurance policy takes premium from farmers, and many farmers don’t know how to get insurance money when their crop fails. So, they are not in a position to avail benefit as they don’t have a required guide near them. We talk about food security, medical coverage, mid-day meals, education but not everybody is getting it. Our agrarian system is in crisis. Monsoon has become very erratic due to global climate change, and the small farmer’s state is becoming miserable.

Unfortunately, there is considerable fear in the minds of these people in India. However, what our government is doing is commendable. We need it to instil confidence and trust in the public. The people, in return, should not waste time worrying. Instead, they should work towards national progress. Once we have dealt with these entrenched issues, then we must think about economic development. Industry sector contributes more to GDP (Gross Domestic Product) of our country. There should be initiatives to transfer people from agriculture to manufacturing, services and other sectors of the economy. Agriculture has a significant number of people; it has improved, but the contribution to GDP from it is not much.

Yes, India can eradicate poverty. Initiatives that are implemented and are in the pipeline are necessary. However, given the condition of people at ground level, this will not happen anytime soon.

BEEF BAN: AN OPINION

By Kartik Sharma

PC: Cow Slaughter & The Constitution, The Hindu June 7, 2017.

BANNING BEEF JUSTIFIED?

Can beef banning be justified in the multicultural society of India? Is it about respecting people’s sentiments or it disrespects freedom to eat? In the history of our country too, there have been conflicts on this topic as Mahatma Gandhi was against beef-eating as he saw religious aspects more. At the same time, J L Nehru considered Gandhi’s demand as unreasonable. So, is it justified to ban it? In 2015 Maharashtra’s Government banned the slaughter of cows, bulls and bullocks and the possession of flesh of these animals.[1] It felt that it is a reasonable restriction as a cow and its progeny is the backbone of Maharashtra’s agrarian economy.[2] Reduction in the number of these animals will prove to be detrimental in the long run. There is no total ban on the import of meat or livestock but the trade of beef from Maharashtra. It believes that it is in the public interest. The act that government passed also criminalises possession of beef and in turn its consumption. This bill was a 20-year old bill, passed in February 2015 and enacted in March after state government received President’s assent.[3]

There can be three angles to the topic- the religious sentiments, the logic and political opportunity. A cow is considered to be holy in India, and anything that is done against it hurts religious feelings. Now, after the act, it will be seen as a legal offence too. The state will be encouraged to stop killing of other animals as well. But what about the livelihood of the people who depend on the cattle industry? The fact is that India is becoming a major exporter of beef, and people who have been employed in the beef industry may now resort to illegal trade. People will become jobless if bans are justified because promises are made by the government to set up a secondary platform for people of this industry. However, it is not practical for the government to create so many jobs readily. It is seen that, through this initiative, some politicians gather the support of people who have religious sentiments attached to the cow.

India, according to many sources, is one of the largest exporters of beef in the world. India majorly exports buffalo beef. There are over 30,000 illegal slaughterhouses in India.[4] Only the ones which possess required certificates should run a slaughterhouse. There is a pressing demand for milk in the Dairy industry. Therefore, cows are not treated nicely. The animals are inhumanely cramped into vehicles during transportation. Due to this, their bones break, and they get dehydrated. The dairy industry does not raise these animals for beef; it is mainly for the milk. Leather, beef are by-products of the dairy industry. But that is a different issue; still, people ask that why don’t we ban milk too? The process of mulching includes the ill-treatment of animals.

In many villages, it is ban just by a norm and not by law. People have decided to follow the standard. The places where there are a ban people have to give up their individual liberty, which is against the Constitution of India. Indian Constitution gives Right to choose what to eat under Article 21.[5] Some people say live and let live attitude should exist- ‘If you don’t like to eat, then don’t eat it, why force it onto others who do?’ In Malaysia and UAE, even though the culture does not permit the consumption of pork, one can get it in separate sections. Why do we only treat one animal as holy when every creature is a beautiful creation of God? If there is a ban on one animal, then it can be suggested that a ban should be there on every animal killing. However, nobody likes things to be done in this fashion. Bulls and bullocks are not considered holy; only a cow is; so why not put a ban on them too?

Smoking kills but the government doesn’t ban cigarettes but puts a mandate to show a large picture on the pocket that says smoking leads to cancer. Why does it not ban that? Bans have been mostly counterproductive in India. Gujarat is a dry state, and everybody knows that people who desire to consume alcohol manage to do it even there. It is written in ‘Bhagwad Gita’ that the supreme personality of Godhead has given us fruits and vegetables to eat. Then why must we take away the life of a creature for the pleasure of the tongue? Spiritually speaking, we must not kill animals for taste. Whatever vegetarian food we eat, we must take it from nature consciously. But if we talk practically, many people are vegetarian by choice, and they never force people to give up eating non-vegetarian items. We are a democratic nation, and we can encourage people to become vegetarian by pick but ban, as it seems, is unwarranted.

[1] Shibu Thomas, Beef ban is ‘reasonable restriction’, does not violate fundamental rights: Maharashtra Govt to HC, The Times of India Apr 20, 2015 available at: https://timesofindia.indiatimes.com/india/Beef-ban-law-is-reasonable-restriction-does-not-violate-fundamental-rights-Maharashtra-govt-to-HC/articleshow/46986689.cms.

[2] Ibid.

[3] Ibid.

[4] As states to close illegal slaughterhouses, PETA India available at https://secure.petaindia.com/page/23016/action/1?locale=en-GB.

[5] The Indian Constitution, 1949, art 21(1).

FEMALE GENITAL MUTILATION: UNDERSTANDING KHATNA

PC: Sahiyo & StoryCentre. A screenshot from a video uploaded by The Indian Express.

WHAT IS ‘KHATNA’?

Khatna, a genital cutting in women, is practised by the Dawoodi Bohra community, a sub-sect of Shia Muslims. It involves the removal of either part or all of a woman’s genitalia or clitoral hood or closure of vulva with a small opening only for the urine to pass.

Dawoodi Bohra community came to India as traders from West Asian and African countries and predominantly resided in Kerala, Telangana, Maharashtra, Rajasthan, Gujarat and Delhi. They have been practising this secret ritual of female circumcision for centuries. “They describe this as ‘Religious Purity’. They also say that according to Da’im al-Islam (a 10th-century book on jurisprudence), this practice is for hygiene or taharat- not just physical but also ‘spiritual’ and ‘religious’.”[1] They believe that the clitoral head is ‘unwanted skin’. It is a ‘source of sin’ that will make them ‘stray’ out of their marriages are reasons that lie at the heart of a practice that predates Islam but thrives amongst Bohras. The Prophet does not consider this practice as a religious requirement and does not ordain it. “The Holy Koran preaches that the Prophet breathes life into each body and that each body is in perfect shape. It is indicative in the following verse: “We have indeed created man in the ‘best of moulds’.” (Qur’an 95:4)[2]

The objective of the practice is to control a woman’s sexual desire and preserve her “honour” before marriage. The community believes that the clitoris causes sexual deviance in women. In a patriarchal society, a woman has no right to partake in sexual pleasure. Sex is a sin and a taboo, which ironically, only men have the freedom to enjoy.

As we know, in India no such practice goes without a challenge. In this article will refer an important case dealing with the matter at hand. It is an attempt to analyse the issues.

SUNITA TIWARI v UNION OF INDIA[3]

The three-judge bench of the Hon’ble Supreme Court, found that the practice of Khatna or Female Genital Mutilation (for short “FGM”) is a crime punishable under the Indian Penal Code and the Protection of Children from Sexual Offences Act (POCSO Act).

The issues before the bench were-

  1. Whether the practice of female circumcision violates the right to privacy of the girls on whom the procedure is performed without their consent?
  2. Whether the practise violates the right to life and bodily autonomy of women and girls and infringes on Article 21 of the Constitution?
  3. Whether the practise is discriminatory against women and girls, and whether it violates Articles 14 and 15 of the Constitution?
  4. Whether the practice is protected as a religious practice under Articles 25 and 26 of the Constitution?

The Petitioner, Sunita Tiwari, contended that the practice of Khatna, as performed on every girl child within the Dawoodi Bohra religious community, does not have any reference in the Quran and is carried out without any medical reason. It thereby expresses anguish over the atrocity, bodily pain, in-humanness and mental torture faced by the girls and women. All this because of traumatic, unhygienic and illegal surgeries performed on them in their childhood. She also argued that this practice violates women’s right to equality, right to privacy, and the right to personal liberty. She signed to make Khatna a cognizable, non-compoundable and non-bailable offence. She petitioned so as to declare this practice unconstitutional and illegal.

She also stated that the World Health Organization had declared Khatna or FGM to be a highly degrading practice. It is considered to be a violation of fundamental human rights and integrity of girls and women. It burdens young women with a slew of psychological problems such as trauma, depression, fear of sexual intimacy and nightmares. Also, in December 2012, the United Nations General Assembly adopted a unanimous resolution which called for the elimination of FGM.

Hygiene is another appalling issue. Often, Khatna is conducted by untrained midwives without anaesthesia, using unsterilised tools. This may cause infections or in some cases, even death. It is sad to observe that instead of standing strong together, women are guilty of harming other women through this practice. Khatna is a hushed affair, as shame and discomfort shroud female sexuality in a patriarchal society. Due to this secrecy, there is no actual data on FGM in India.

The respondents in their defence said that it is a religious practice and hence is protected under Article 25 and 26 of the Constitution. They also stated that this practice is not discriminatory against women. Both men and women are required to be circumcised. The community considered this practice as an integral part of their religion.

At present day, this judgement is still pending before the Supreme Court. The original court referred the case to a five-judge bench which further referred to a seven-judge bench.

CONCLUSION

They promise you a bar of chocolate, a movie or just an outing; they take you instead to a dingy, dark room, pin you to a bed, take off your pants and cut that tiny part of you that was eventually supposed to make you experience one of the greatest pleasures of being a woman. With blades, knives or anything remotely sharp and long, they cut off your clitoris, and say it’s in the name of culture. All this happens when you are a girl of seven or eight. In spite of being banned by such a big organisation as the UN and WHO, there is no ban on this act in India. This practice prima facie violates the rights of women in India. It’s the worst nightmare a girl can ever have. Even the ones who remember look at sexual intercourse as just an activity they need to do after marriage; the idea of pleasure thrown out of the window. Above all, the irony is, the Bohra Community is known to be a more ‘open’ Muslim community than most others, as it allows for its girls to get an education and travel if they wish to. This case may become a landmark case if it results in banning FGM in India. Just like Talaq e-biddat Judgement, this case may also curb this arbitrary practice in which consent of women is not considered, and exploitation is on its zenith.

[1] Aarefa Johari, Why do Dawoodi Bohras practice Khatna, or female genital mutilation, May 19, 2017, https://sahiyo.com/2017/05/19/why-do-dawoodi-bohras-practice-khatna-or-female-genital-cutting/ (Last Visited on October 4, 2018).

[2] The Indian Economist, Female genital Mutilation: The case of the Bohra Muslims in India, March 24, 2017 https://www.magzter.com/news/764/2674/032017/d7evp (Last Visited on October 4, 2018).

[3] Sunita Tiwari v Union of India, W.P. (C) No.286/2017.

FORMATION OF A CONTRACT: SOME BASIC ESSENTIALS

By Kartik Sharma

PC: Rawpixel Ltd, Sodhi Law Group.

INTRODUCTION

The branch of law which binds two or more parties with a legal obligation to perform or not perform an act in place of consideration flowing from all the parties is ‘Law of Contract’.[1] In India, the Indian Contract Act, 1872 governs this branch of law.[2] It defines and explains different aspects of a contract, how an agreement becomes a legit contract, the consequences of a breach of contract, the performance of the consideration and remedies on the violation. Any transaction to be a legally binding contract needs to have three essential elements. Offer flowing from a party, its unqualified and absolute acceptance from the other party and intention to enter into a legally binding contract.[3] Section- 2, which is the interpretation clause of The Indian Contract Act, defines these aspects of a contract. [4] It explains what all things constitute a valid agreement which becomes a contract with the force of law. To better the understanding of the formation of a contract, in this article, the author will analyse a given fact scenario to understand the proper proposal and its acceptance.

FACTS

“‘A’ visits a small shop to buy a notebook and a pen. ‘B’ is the shopkeeper. ‘A’ enquires about the price of the pen and the notebook. ‘B’ states that the notebook costs Rs. 50 and the pen costs rupees Rs. 15. ‘A’ agrees to buy the notebook for Rs. 45 and the pen for Rs. 10.”

ISSUES

  1. Was ‘B’ by quoting the price of the notebook and the pen proposing an offer?
  2. If so, then, ‘A’ agreeing to purchase the items on a different price an acceptanc?

ANALYSIS

  1. Whether quoting the price of the notebook and pen constitutes a valid offer by ‘B’?

“When one person signifies to another his willingness to do or to abstain from doing anything, to obtain the assent of that other to such act or abstinence, he is said to make a proposal or an offer”.[5] As from the facts, it is clear that ‘A’ just enquired the price of the notebook and pen to which ‘B’, the shopkeeper, just quoted the price which does not show his willingness to sell the said items and “when a person proposes an offer it should be sufficient enough to form a contract as soon as it is accepted”.[6] In other words, one must put the offer in such a way that whenever the offeree accepts the offer, a legit contract is formed. In the present case, even if ‘A’ would have agreed to purchase on the said price, it would not have resulted in a valid contract because B’s quotation was merely an answer to an inquiry made by ‘A’. ‘B’ did not quote the price with the view to obtain the assent of ‘A’ and, also, as in the case Harvey v. Facey [7] when the plaintiff (Harvey) telegraphed the defendant (Facey) that will he be selling him ‘Bumper Hall Pen’ and asked Facey to communicate the lowest price, the court held that it was a mere inquiry made by Harvey. This inquiry was just to know whether Facey was willing to sell and, if so, at what price. The price, i.e. £900, quoted by Facey, was not an offer to sell the ‘Bumper Hall Pen’ it was just an answer to the question asked to him by the plaintiff. The same thing happened in the case at hand. It was a statement and not an offer.

  1. ‘A’ agreed to buy items at different price. Whether it is a valid offer? If not, then, what is it?

In the preceding paragraph, we saw how the quotation by ‘B’ is not an offer. Therefore, there cannot be any acceptance by ‘A’ on it. However, ‘A’ did agree to purchase the items at different pricing. This quotation made by ‘A’ can be considered as an offer. As now he quoted the price intending to purchase and get the assent of ‘B’ to make it a valid contract between the two. Section 2(b) of the Indian Contract Act defines acceptance.[8] As per the definition, ‘B’s approval will be a valid acceptance. Such turn of events is in pari materia with facts of the case Harvey v. Facey.[9] When Harvey agreed to buy at a different price, it deemed an offer, if Facey had accepted it, it would have been a valid contract.

CONCLUSION

“A valid offer must be addressed to one or more specific persons, be sufficiently definite, and indicate the offeror’s intention to be bound in case of acceptance.”[10] From the instant case scenario and analysis of the issues, it is evident that the quotations given by ‘B’ did not constitute an offer; instead, it was a mere statement. Whereas, ‘A’ clearly made an offer, which will, with the absolute and unqualified acceptance by ‘B’, become an agreement”.[11] Hence, the contract is yet not formed in the given case scenario. To conclude, for a valid offer, the offeror must portray the proposal in such a way that if the offeree accepts it, there arises a contract. He should make it in a way to get a yes or no response. However, if the offeree does not accept and quotes different price or puts conditions, then it will not amount to a valid acceptance. It will either be a counter-offer or an unqualified acceptance which is not correct as per the sections in the Act.

[1] J. Beatson, Anson’s law of contract, 1 (28th ed., 2002).

[2] The Indian Contract Act, 1872.

[3] Nilima Bhadbhade, Pollock & Mulla, the Indian contract and special relief act, Vol. 1 37 (14th ed., 2012).

[4] The Indian Contract Act, 1872.

[5] The Indian Contract Act, 1872, §2(a).

[6] Coffee Board Bangalore v. Janab Dada Haji Ibrahim Halari, AIR 1966 Mys 118.

[7] Harvey v. Facey [1893] AC 552.

[8] Indian Contract Act, 1872, §2(b).

[9] Harvey v. Facey, [1893] AC 552.

[10] Larry A. DiMatteo, Lucien Dhooge , et al, Formation: Offer & Acceptance Rules, International Sales Law: A Critical Analysis of CISG Jurisprudence, 51-75, https://doi.org/10.1017/CBO9780511511332 (Last visited on August 20, 2018).

[11] The Indian Contract Act, 1872, §7.

BILL AND ACT: UNDERSTANDING THE DIFFERENCE

By Kartik Sharma

PC: Labour Law Guide, YouTube.

INTRODUCTION

Any statute which is/ was in force until now went through two stages. Initially, it is a Bill stage, and then it becomes an Act. For laypeople, a Bill is a stage where proposed legislation is open for discussion and is not enforceable by any authority. In contrast, an Act is a codified and binding law. Any law and order authority or any exclusive authority created thereunder can enforce this Act. 

At the Bill stage, the Parliament discusses, debates and vote upon the clauses of the proposed legislation. If the Parliament deems fit to pass and passes, such legislation, the President may approve it. Once approved and notified in the gazette, this Bill, becomes a fully codified Act or a statute (the second stage). After becoming a fully enforced Act, there cannot be any changes except through due procedure established by the Constitution.[1]

As we can see in the preceding paragraph, a Bill is proposed legislation which goes on to become an Act (an enacted legislation). Hence, there is not much difference between the two. Where one has the force of law, the other does not. That is why this article would deal more on the type of Bills and the procedure to make them an Act.

TYPES OF BILL

As per the Constitution of India, there are mainly four types of Bills. Ordinary Bill,[2] Money Bill,[3] Financial Bill[4] and Constitution amendment Bill.[5]

1. ORDINARY BILL

Any minister can introduce an ordinary bill (Government Bill), or any private member (Member of the Parliament) authorised to do so (Private Member Bill). Either house of the Parliament can introduce this Bill. Once the Parliament Scrutinises the Bill, it requires the majority of the members present and voting in the House.

Once the introductory House has passed the Bill and sent for consideration in the second House, the second House can either give it or can suggest amendments. If the second House goes for the latter thing, the introductory House has to pass the proposed legislation with such suggested changes after proper scrutiny. Finally, the Bill remains for the assent of the President before becoming a Proper Act.

2. MONEY BILL

As per Article 110(1) of the Indian Constitution, “a bill is a money bill if its provisions deal with abolition, imposition, regulation, alteration or remission of any matters of Consolidated Fund, Tax, provides imposition of fines etc.”.[6] Only the lower House of the Parliament (Lok Sabha), on the recommendation of the President, can introduce such bills. The Speaker of that House has the authority to declare any bill as Money Bill or an Ordinary Bill. Once announced, no one could challenge such decision of the Speaker.

The procedure to pass such Bill is same as that of any Ordinary Bill.

3. FINANCIAL BILL

Financial Bills are those bills which deal with matters not listed in Money Bill. Just like Money Bill, only Lok Sabha, on President’s recommendation, can introduce Financial Bill. Article 117(3) talks about another Financial Bill.[7] Either House of the Parliament can introduce Financial Bill under this article without the recommendation of the President.[8] Both the houses have the power to reject or amend the Bill.[9] Other than this, the procedure to pass such bills is similar to that of Ordinary Bill.

4. CONSTITUTIONAL AMENDMENT BILL

Bills that seek to amend the Constitution of India are Constitution Amendment Bill.[10] Either House of the Parliament can introduce this Bill but not in any State Legislature. President’s recommendation is not required to present these bills. Also, any Member of the Parliament (MP) can present such Bill in the Parliament.

There are three such Bills,

  1. Those who need a simple majority to pass,
  2. The ones which need special majority,
  3. The ones which need special majority and ratification from half the number of State Legislatures.[11]

Once the Parliament passes the Bill, President’s assent makes such Bill a Constitution Amendment Act. This step of the President makes the proposed alteration in the Constitution. To note, the President cannot withhold the Bill, which requires Special Majority and ratification from 50% State Legislatures. He/ She has to give his consent to it.

CONCLUSION

To conclude, the difference between an Act and a Bill is just legal bindingness. One has the force of law where others do not. We can also observe that there is various type of Bills which are introduced in the Parliament. Each has its unique way to become an Act. Where only Lower House can add some, it has to have President’s recommendation whereas others do not require such a suggestion. Some also need an extraordinary majority to move ahead and become a legally binding Act.

[1] The Constitution of India, 1949, Art 368.

[2] Id, Art 107.

[3] Id, Art 110.

[4] Id, Art 117.

[5] Id, Art 368.

[6] Supra note 4.

[7] The Constitution of India, 1949, Art 117(3).

[8] Ibid.

[9] Ibid.

[10] Id, Art 368.

[11] Ibid.

HUMAN RIGHTS AND PRAGMATISM: TORTURE

By Kartik Sharma

PC: The Centre for Victims of Torture at http://rejecttorture.cvt.org/neverlegal/.

INTRODUCTION

‘No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.’[1]

While, by a long shot, the vast majority of the countries have confirmed all the significant human rights traditions, however encroachment of Human rights remains normal. Torture is one of them. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984,[2] defines torture as “an act involving agony or suffering; physical or mental, perpetrated upon the victim for a specific reason”.[3] This act is in with the association of an open (for example, State) authority.[4] Further, this enduring must be extreme, purposeful, and baseless in the condition.[5] It has evolved and has become more prevalent juxtaposed with civilisation.

Moreover, as the world evolved, torture strategies turned out to be increasingly specialised, progressively clinical. Torture hardware has turned into a product to be purchased and sold. Governments traded tips on effective torture procedures, and all this despite knowing that torture has turned out to be illicit as indicated by the said universal law.[6] “With this, a debate whether torture can ever be morally and practically justified, arises?” Is it practically and morally justifiable for an individual or a state to extort to torture to extract information or confession which could save a case? Could we have exceptions to anti-torture laws like a necessity in ticking time scenarios?

DISCUSSION

Justification

Torture is brimming with complexities and logical inconsistencies. The legislature, the torturer, even the general population, may legitimise its utilisation in specific conditions, while conventional society denounces it as primitive, underhanded, and bygone. The government may goad this support with stock reactions, for example, national security.

The proclaimed reason for utilising torture is to constrain the enemy, the outsider, to talk and uncover secrets. This disclosure should hinder the slaughtering of the insiders. These lines of thinking are so smooth and shortsighted that it is promptly and uncritically acknowledged. Showing the issues this way gives support and legitimacy to torture.[7]

‘Be that as it may, creating conventions criminalising torture is certain something, and its enforceability is another. Here, as so regularly, where we make laws to control what individuals can and cannot do, we are looked with issues which are characteristics of human instinct. It is an unpreventable actuality of the human condition that we feel pain. We dread pain. This sense of pain and suffering is a reality which we can all use for our benefit. Intensely painful things have considerably more harming results. Therefore, the curse of agony on others is a weapon, particularly in the hands of the deceitful. This fear constrains individuals and their individuality, and torture is a method for imparting fear.’[8]

Though every human being has a right to be free from torture, and we have laws for it as well, but if one looks it with a pragmatic approach one cannot separate the world from torture. In all the countries, the intelligence agency extorts to torturous acts to extract information from captured terrorist, and this is omnipresent. Every movie, drama or documentary depicts the same situations. This ubiquitousness clearly shows that there arise situations where pragmatically one cannot avoid to extort to torture.

There are circumstances in which it is not passable, however ethically required, to torture. For instance, in 1998, an Israeli delegation appeared before the UN Committee against Torture.[9] Allegedly, Israel violated the UN Convention against Torture. In their defence, they put forth the famous ‘ticking bomb’ scenario.[10] They state that,

“On the off chance that we did not put weight on Palestinians for the following strike, nobody will ever know where and when the following suicide bomb is going to strike, and now and again we are in uncommon circumstances where we have to get indispensable data from a psychological militant or a potential fear-based oppressor to keep a further demonstration of dread.”[11]

In another example, in 1982, a man named Michael Levin placed a bomb on Manhattan Island.[12] The location of the bomb was unknown. In this situation, the authorities had no other alternative to get the location of the bomb then resorting to torture.

Counter Justification

All these excuses legitimising torture does not mean that one has the right to torture every enemy of the state. “Torture is always wrong.”[13] While it is conceivable that torture may yield dependable insight, we cannot resort to it with any certainty of gaining verified information. Additionally, we ought not to accept that torture is compelling to this end because those with a particular enthusiasm for supporting torment guarantee that it works.[14] Neither would we be sure that torture was the only method to acquire essential data. There is absolutely no solid proof that points towards the far-reaching utility of torture for this reason. Moreover, authorities who guarantee torture has worked along these lines never provided cases in which torture has brought about false admissions or manufactured insight. However, there is sufficient proof to demonstrate that casualties of torment will say anything to end torture.[15]

While it is conceivable that torture may result in some valid insights, it is also unmistakably bound to result in false admissions. It is so because an extorted person looked with the awfulness of torture, is probably going to state anything that will make the torture stop. Torture is exceedingly successful for verifying false data. Despite this, the justification for torture has been made based on its assumed utility for procuring precise intelligence data.[16]

CONCLUSION

Torture is primitive, and a state ought not to be savage. To treat somebody savagely dissolves the authenticity of the state. It on an elementary level disregards humanity. Wing-Commander of Indian Air Force Abhinandan Varthaman was also mentally tortured despite being an unarmed soldier of an enemy state. All over the globe, similar cases occur round the clock. It is not right. With all possible outcomes, one cannot disregard the fact that torturing someone is not the best and reliable way to extract information. Just to save oneself from brutality the tortured person can say anything without regarding the viability of the info.

Further, extorting to torture fades away the true meaning of interrogation which is to get reliable and viable info; and, not to make other people talk. Likewise, no state should justify acts of torture, and for ticking clock scenarios, countries around the globe should make efforts to come up with a plausible solution. They can work on making policies for resorting to different consensual biological tests and hypnosis to gain information at the last minute; paying all regards to the legality of such tests.

[1] Universal declaration of Human Rights, 1948, Article- 5.

[2]United Nations Convention Against Torture, 1984, Article- 1.1.

[3] Ibid.

[4]Darren J. O’Byrne, Human Rights: An Introduction 164 (2004).

[5]Ibid.

[6]Ibid.

[7]Ibid.

[8] David Hope, Torture, 53(4) International and Comparative Law quarterly 808 (2004).

[9] Blakeley Ruth, Why Torture, 33(3) Review of International Studies 377 (2007).

[10] Ibid.

[11] Ibid.

[12] Yuval Ginbar, Why not torture terrorist? 359(2008).

[13] Ben Juratowitch, Torture is Always Wrong, 22(2) Public Affairs Quarterly 81 (2008).

[14] Ibid.

[15] Ibid.

[16] Ibid.