Aveek Sarkar V. State Of West Bengal (The Community Standard Test Case)

• Abhedya Rajeev
• Legal Article
• Thu, 06 Aug 2020 10:21 PM

FACTS OF THE CASE: In 1994, German magazine STERN in printed an article with a picture of Boris Becker, a world-renowned tennis player and his dark-skinned fiancée, German actress Barbara Feltus. In the picture, both Becker and Feltus were unclothed and he had put his arms around her in a manner to cover her breasts with his palms. Article pectoris’s Boris Becker as a strident protester of the pernicious practice of “Apartheid”. Further, it was stated that the purpose of the photograph was also to indicate that love champions over hatred. The article with the photograph was published in an Indian magazine Sports World and a Kolkata based newspaper Anandabazar Patrika. Aveek Sarkar, a legal representative filed a case under Section 292 of IPC against the editor, publisher and printer of the newspaper. The “Hicklin Test” to determine obscenity was in question.

ISSUES RAISED: 

1.  Is the “Hicklin test” is suitable to determine the degree of obscenity?

2. What is the correct meaning of the term “Obscene or obscenity” according to Law?  

RATIO OF THE CASE: 

In this case, the Supreme Court held that “Hicklin test” is not the correct and applied “community standard test” to determine obscenity. A picture of a nude or semi-nude woman as such cannot per se be called obscene unless it has the tendency to stimulate the feeling or revealing an overt sexual longing. The picture should be suggestive of deprave mind and intended to excite sexual passion in persons who are likely to see it. Only those intercourse related materials which have a tendency of exciting lustful thoughts can be held to be obscene but the obscenity has to be judged from the viewpoint of an average person. In accordance with “community standard test”, the Court held that breast of Barbara Fultus fully covered with the arm of Boris Becker, a photograph, of course, semi-nude had no tendency to corrupt the minds of the people in whose hands the magazine or newspaper would fall.

Social Justice and Ambedkar

• Satyajit Pattanaik
• Legal Article
• Thu, 06 Aug 2020 09:49 PM

“Indifferentism is the worst kind of disease that can affect people.”

― Bhimrao Ramji Ambedkar

Dr Bhim Rao Ambedkar, who happened to be the Chairman of the Drafting Committee of the Indian fundamental law i.e. the very Constitution of India. He, for his prudent contribution towards the framing of the Indian Constitution and influential leadership, is known as the Father of the Indian Constitution. His unquestionable focus towards the equality, most specifically the 'Social Justice' i.e. equality for the weaker section of the society can be found from the very flavour of the preamble of the Constitution itself, specifically from the phrase "JUSTICE, social, economic, political." 

Dr Amedkar, the name imprinted in the minds of all Indians for generations to come. He has marked a score in all our hearts, not only because of his scholarly work but primarily because of his contribution in moulding India upon the pillars of 'Justice', 'Liberty', 'Equality' and 'Fraternity'. He considered these pillars to be the cornerstone of his idea of 'Social Justice.' He also regarded these attributes as playing a sacrosanct role in ensuring the dignity of every individual. Dr Ambedkar became the preacher of equality, most particularly in the form of Social justice having been inspired and influenced by Rousseau's words, which tempted him to mull over his steps and fight firmly for justice based on equality.

Social Justice

The concept of Social justice signifies the expanding horizon of the concept of the general form of equality, according to which 'the equals must be treated equally and the unequal must be treated differently.' Besides, from the sequence of the key elements in the preamble of the Indian Constitution, one can very well identify the primacy of 'Justice' specifically the 'Social justice' over Liberty, Equality and Fraternity. And this is what the Indian Constitution intends to do for the weaker, deprived class of the society and to the minorities.       

Ambedkar and Social Justice      

In order to analyse the influential works of Dr Amedkar, as a reformer of social justice for the betterment of oppressed class, it is worth discussing the caste system that existed in the Hinduism. 'Manu' the lawgiver had classified the mankind into four varnas (Sanskrit word; colour or class)  namely the Brahmins, Kshatriyas, Vaishyas, and Shudras. The 'Purusha Shutra' of the Rig Veda,  emanated the doctrine of 'Chatur Varnya' according to which the four castes emerged from the body of the creator, 'The Brahmins', the priests were equated to the mouth, 'The Kshatriya' the warrior; from the arms, 'The Vaishyas' the trader: from the thighs and 'The Shudras' sprung from the feet.  The Shudras were considered to be the untouchables and were deprived of any social opportunities and were condemned to having no social status, made to carry the dead, not allowed to use the public streets, they lived a life of complete segregation. With time, their condition only worsened, they became more oppressed and depressed. Such a social construction called forth inequality in status and deprivation of equal opportunities for all. This brought an order of social injustice in the country.

Subsequently, the system of reservation was incorporated erstwhile for the lower castes and the underprivileged is the outcome of indefatigable efforts and fight by the people of lower castes, which was boosted by Dr Amedkar whom they considered to be their pioneer. Ambedkar by birth belonged to a lower caste (Mahar). He had to face all challenges and hurdles in life to overcome the stigma of untouchability,  in every nook and corner of India inter alia. He considered untouchability in India as bondage worst than the slavery of the Roman Empire and also more cruel from what was perpetrated against American Nigros and German Jews. This fact was highlighted in his paper "Castes in India: Their Mechanism, Genesis and Development" presented at an anthropological seminar of Alexander Goldenweiser in New York, 1916. And for this creative piece of work, Dr Amedkar was awarded a PhD degree by Columbia University in the same year. 

Untouchability deprived him of all the basic rights and privileges which every human being deserved from his very birth. The hardships and nuances at each phase of his life made him strong and weakened his belief in humanity. During the early phases of his life, his father made him believe that education shall eliminate all their plights and turmoil relating to caste discrimination. But as he grew up, these words became a myth and life showed its ugly turn, with harassment and resentment, each day for becoming and identified as an untouchable. So Ambedkar, being the most learned person of his community, decided that voices of the lower castes specifically the untouchables is to be united and collectively fight for their rights to compel the deaf upper castes and mighty politician to hear without any option. 

With this enthusiasm and exuberance, he started his journey of curbing discrimination done to the people basing upon their caste and to give them a proper place in the society with dignity as all human beings deserve, by sowing the seeds of equality of economic, social and political. He gave more emphasis on economic and social equality than political equality. Hence, he gave utmost importance to social justice rather than to political justice with equal opportunity coupled with individual liberty, which together could uproot the caste system in the country to its entirety. 

When we take a glance upon the life of Dr Ambedkar, we may think he got all the opportunities in life and was able to study abroad, earned various academic achievements but no one bothers to cast an eye upon all the hardships which he had to undergo because of his caste in all the stages of his life, which has made him a champion, whom we know, respect, adore and idealise.  All cannot understand the pain unless we stand in his shoes, yes Dr Ambedkar received a scholarship from the princely state of Boroda, but he earned it and the scholarship was for his studies alone, his living in London and serving his family from there was a daunting task, his wife longed for his presence and all his children died because of poverty and diseases, the same also took away the life of his wife Ramabai. Instead of being a Professor at the Sydenham College of Commerce and Economics in Mumbai, other Professors refused to share a water jug with him as he was untouchable. 

So one needs to understand that Ambedkar did not fight in the air, for anything he had all valid and sufficient reasons to raise his voice against this caste system as he too was one of the sufferers. Ambedkar, all his life tried to eliminate social injustice in India,  be it the Mahad Satyagraha of drinking water from the Chowder tank or asking the women of low castes to drape their saris like that of high castes women, so as to erase the mark of untouchability or to burn the Manu Smirti as a protest, everything he did was to free the untouchables from the bondage and establish social justice among people. 

Through his fortnightly, the 'Mooknayak' (Silent Hero) he became the voice of the untouchables and tried to make all aware of the evil practices of the caste system that existed amongst the Hindus.  The oppressed class had implicit faith in him. He claimed to have separate electorates of the people of lower castes, which would enable the minorities to elect a candidate to the legislature, who would be their real and not nominal representatives.  But he had to do a concession of separate electorates with reserved seats on request of Gandhiji and a referendum of 5 years. But he had a belief that untouchability shall not be eradicated within twenty years and the untouchables will be continued to be oppressed by the dominant Hindus, which would worsen their miseries even more. He and his entire community embraced Buddhism, so one needs to fathom what was so depressing that compelled them to change their religion. 

Conclusion 

 To conclude, when all of us debate on the quantum of reservation and opine to end reservation system of the people of lower caste we need to think for a while and go through its history, the history of what these people have been through. When we see them like us, as take their suffering and miseries as our own, then this discrimination can be totally eradicated and all people will be one, as in the eye of the maker. And the dream of Dr Amedkar shall be fulfilled and his efforts to eliminate social injustice will be successful and India would be a country free from any social inequality, with each of its citizens having his fundamental rights and living with dignity, which he deserves as a human being from his very birth. Then there will be no need of reservation for a particular class as all people will be one irrespective of their caste, colour, race and other like discriminating factors.

RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

• Bhavni Sahai
• Legal Notes
• Tue, 26 May 2020 03:02 PM

There is a divergence of opinion on the question as to whether International Law and Municipal Law on the various national laws can be said to form a unity being manifestations of a single conception of law or whether International Law constitutes an independent system of law essentially different from the Municipal Law. International Law has developed in a form which is different from that of Municipal Law. The relation has been categorized traditionally been characterized from monist or dualist perspective.

International Law

According to the Black’s Law Dictionary

“International Law” is defined as: “The legal system governing the relationship between nations; more modernly the Law of International relations  embracing  not only nations but also such participants as  International organizations and individuals (such as those who invoke their human rights or commit war crimes)”

International law is the set of rules generally regarded and accepted as binding in relations between states and nations. It differs from national legal systems in that it only concerns nations rather than private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform.

The term "international law" can refer to three distinct legal disciplines:

• Public international law, which governs the relationship between provinces and international entities. It includes these legal fields: treaty law, law of sea, international criminal law and the laws of war or international humanitarian law.
• Private international law, or conflict of laws, is a body of law developed to resolve private, non-state disputes involving more than one jurisdiction or one foreign law element, which addresses the questions of :

1. which jurisdiction may hear a case, and
2. the law concerning which jurisdiction applies to the issues in the case.

• Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.

The two traditional branches of the field are:

• Jus gentium  : is the body of treaties, U.N. conventions, and other international agreements [law of nations] – Law is common to all nations
• Jus inter gentes: agreements between nations

Municipal Law

According to the Black’s Law Dictionary

“Municipal Law” is defined as: “The ordinances and other laws applicable within a city, town or other local government entity”.

Basically, Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels. While, as far as the law of the state is concerned, these may be distinct categories of law, international law is largely uninterested in this distinction and treats them all as one. Similarly, international law makes no distinction between the ordinary law of the state and its constitutional law.

Article 27 of the Vienna Convention on the Law of Treaties provides that, where a treaty conflicts with a state's municipal law (including the state's constitution), the state is still obliged to meet its obligations under the treaty. The only exception to this rule is provided by Article 46 of the Vienna Convention, where a state's expression of consent to be bound by a treaty was a manifest violation of a "rule of its internal law of fundamental importance.”

Relationship between International and Municipal Law

It is important to understand how international law principles become part of domestic law, and to explain what happens if the rules conflict. The theories of monism and dualism are the two main theories that explain the relationship between international and municipal law.

• Monism

In this theory, all law is part of a universal legal order and regulates the conduct of the individual State. The difference in the international sphere is that the consequences are generally attributed to the State. Since all law is part of the same legal order, international law is automatically incorporated into the domestic legal order. Some monist theorists consider that international law prevails over domestic law if they are in conflict; others, that conflicting domestic law has some operation within the domestic legal system.

• Dualism

This theory holds that international law and domestic law are separate bodies of law, operating independently of each other. Under dualism, rules and principles of international law cannot operate directly in domestic law, and must be transformed or incorporated into domestic law before they can affect individual rights and obligations.

The main differences between international and domestic law are thought to be the sources of law, its subjects, and subject matter. International law derives from the collective will of States, its subjects are the States themselves, and its subject matter is the relations between States. Domestic law derives from the will of the sovereign or the State, its subjects are the individuals within the State, and its subject matter is the relations of individuals with each other and with government.

• Harmonisation

Neither monism nor dualism can adequately explain the relationship between international and domestic law, and alternative theories have developed which regard international law as having a harmonisation role. If there is a conflict, domestic law is applied within the domestic legal system, leaving the State responsible at the international level for any breach of its international law obligations.

Position of International Law with the Constitution framework of India

The drafters of the Indian Constitution have been extremely vague in defining the status of international law in the municipal sphere. Our Constitution provides little guidance as to the relationship between international law and municipal law. This ambiguity looms large in the absence of any debate in the Constitutional Assembly on the subject and the studied silence of Constitutional pundits.

The primary issue is whether our Constitution makes a mere textual disposition of the relationship of International Law and Municipal Law. Apart from the express provisions of the Constitution, we also need to rely on actual State practice. Article 51(C)[1] (which falls within the realm of the Directive Principles that are non-justifiable in character) of the Constitution specifically mentions International Law and imposes a duty on the state to respect it. But the jurisdiction of the court to enforce them in the domestic arena has been limited by virtue of Article 37. In this backdrop, it is interesting to take note of 'The Regulating Act of 1873', which directed all Courts in India to act in accordance with "equity, justice and good conscience". On the basis of this principle, Common Law rules were transplanted into the Indian Municipal Law. It seems that India has barely deviated from its preconstitutional position in the matters of basic canons governing the principles of International law and Municipal Law.

It is a well-established principle that constitutional conventions may also breathe through legislative or constitutional enactments;[2] So, the common law rules automatically became unwritten Constitutional law of a supplementary character. It is an important principle of Constitutional interpretation that every provision of the Constitution must be given effect to. Therefore, these rules continue to be in force in the Indian legal setting by virtue of Article 225 and 37 of the Constitution of India. These provisions are based on the universally recognised principle that law once established, continues until changed by some competent legislative power. The Indian Independence Act, 1947 also incorporated the same principles under section 18(3). Therefore, such practices will be of binding nature in International Law as well as in the Municipal sphere. Hence under Article 372 of the Constitution such practices will have the force of law and India will be bound to observe the same. A composite reading of the Articles 51(c),253 and 372 suggest that India has not deviated from the common law position. Therefore, India will have the same legal practice of treating customary International Law as part of the law of the land provided that it is not inconsistent with the existing statutory provisions and the national charter.

Regarding treaties they have to be transformed into enabling legislation. In the Indian context, the ratification of a treaty doesn't ipso facto transform it into domestic law. The nonobstante clause under Article 253 of the Constitution bestows on the Parliament exclusive competence to legislate upon the treaties entered into by the Government of India.

However, Dr. P.C. Rao aptly cautions that by virtue of Article 73, "The executive power extends to all transactions which bring the Union into the relation with any foreign country or other international person". Accordingly, when there is a controlling executive; recourse cannot be had to principles of Customary International Law. Nor can such principles override the case law.

Supreme Court has held in several cases such as Vishakha vs. State of Rajasthan, Randhir vs. Union of India, Unnikrishnan vs. State of Karnataka, that domestic laws of India, including the constitution are not to be read as derogatory to International law. An effort must be made to read the domestic law as being in harmony with the international law in case of any ambiguity. At the same time, the constitution is still the supreme law of the land and in case of any directly conflict the constitution will prevail.

The above inspection of the Constitutional provisions amply clarifies the status of international law in the domestic field.

Conclusion

There are mainly two theories- monistic and dualistic which are used to study the relationship between the internal and international law. Monistic theory is based on natural law which suggests that internal law as well as international law is a part of the same law and there is no need for separation between them. But the dualistic theory which is based on positive law says that domestic law and international law are separate entities. The nation state need not obey international law unless it accepts to do so. Though both theories has its own place in international law, few countries in this world follow pure dualism or monism. The countries follow international law when it is in their favour and do not follow when it is not. This is what we can see in the international scenario.

Defamation: Types and Legality

• Amrita Bhatt
• Legal Notes
• Sat, 09 May 2020 03:52 PM

IS DEFAMATION TORT OR CRIME?

Defamation is a process of lowering the reputation of any person. It can be done either in oral or in writing in the form. When it is done in written form then it is called libel and when it is done oral form then it is termed as slander. The defamation is basically publication of false statements against the claimant without his consent with the intention to lower his reputation. It is considered as an offense because it causes damages to the claimant in the form of lowering social or political reputation. Which results in financial and economical loss to the claimant.

The basic elements of defamation are-

-The statement should be published.

- The statement should be false.

-The statement should refer to the claimant.

Categories of defamation in India-

1. Criminal defamation
2. Civil defamation

a)Criminal defamation is dealt with under section 499- 500 of Indian Penal Code (IPC) Any person who is charged for defamation under criminal law should be charged for punishment along with damages. The punishment for defamation under criminal law is imprisonment for 2 years or more with or without fine

According to IPC crime defamation will take place when any person publishes any statement with the intention to lower the reputation of the claimant and the statement published is false. The statement should refer to the claimant only during this situation the plaintiff can institute a case of defamation against the defendant.

R Naik Vs Union of India[1]

In this case section, 499 and 500 of IPC were challenged by the plaintiff for criminal defamation. The validity of section 499 and 500 became academic in this case.

b) Civil defamation is dealt under tort law as a general rule it only focuses on libel that is the written defamation statement and does not focus on slander that is the oral defamation statement. In order to prove that the statement libelous. The claimant has to prove that-

-The statements are false.

-The statements are written.

-The statements are defamatory.

-The statements are published.

Ram Jethlalmana vs Subramyam Swami[2]

In this case, the court held that the statement made by the defendant was irrelevant. The aim was to destroy the image of the person. The defendant made the statement with the intention to lose the reputation by linking his name with the corrupt company. The statement ruins the social and political republican of the plaintiff. The plaintiff was awarded 5 Lakhs by the defendant.

Conclusions

From the above two cases, we can say in India defamation is both tort and crime. In the case of tort civil laws are applied. Where punishment is not given only damages are given. And in the case of Crime criminal laws are applied and along with damages, punishment is also given. In criminal law, defamation is considered as a bailable offense.