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Implementation of CAA rules in accordance with the 2019 manifesto: Inclusion of Non-Muslims v/s Exclusion of Muslims – Preference or Discrimination

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Introduction

The Union government on March 11th issued the rules for the Citizenship (Amendment) Act, or CAA, four years after the passing of the controversial law. The amendment seeks to fast-track the citizenship to Hindus, Sikhs, Buddhists, Jains, Farsis and Christians who entered India from three neighbouring countries Afghanistan, Pakistan and Bangladesh on or before December 31, 2014. These rules enable the minorities persecuted on religious grounds in Pakistan, Bangladesh and Afghanistan to acquire citizenship in our nation.

Background of the issue

The rationale to amend the Citizenship Act of 1955 is deeply related to the history of India. Before the Lok Sabha elections in 2014, BJP vowed to grant citizenship to Hindus prosecuted in the neighbouring nations. The Government, with respect to that, framed a few policies for the benefit of the Hindu communities from neighbouring nations who took shelter in India. One among them was the Citizenship Amendment Act, 2019 which provided concessions to minorities from Bangladesh, Pakistan and Afghanistan to obtain citizenship in India.

The Citizenship Amendment Bill was passed in the Lok Sabha on January 8, 2019, despite the intense objection and protest from the opposition party. Later, on December 11, 2019, the bill was approved in the Rajya Sabha altering the Citizenship Act of 1955 and received the President assent on 12 December 2019,

The law paved a path towards Indian Citizenship for the persecuted minorities (Hindus, Sikhs, Buddhists, Jains, Parsis, or Christians) from Afghanistan, Bangladesh, and Pakistan who arrived in India at the end of December 2014.   The act also eliminates the requisite for neutralization from less than eleven years to less than five years. The amendment also eased the residence requirement of these migrants for naturalization from 12 years to 6 years. The Amendment was fundamentally criticized for not providing this kind of Citizenship to Muslims in these Muslim-majority nations. This marked the first occasion religion was utilized as a criterion to be a citizen under Indian law and drew international criticism. The Office of the United Nations High Commissioner for Human Rights (OHCHR) declared it “fundamentally discriminatory”. The Indian government’s “goal of protecting groups that are being targeted is a good thing” must be achieved through an equal and non-discriminatory “robust National asylum system”. criticised as discriminating based on religion, specifically by excluding Muslims.

CAA rules, 2019

The 39-page Rules notified in the e-gazette on Monday prescribe the modalities and procedure for eligible individuals to apply for Indian citizenship. The Rules specify what documents and paperwork are required for putting forward and considering a claim of citizenship.

The government exercised its power conferred under Section 18 of the Citizenship Act, 1955 to further amend the Citizenship Rules, 2009.

Rule 10A – Eligibility criteria and requisites for the grant of citizenship by registration or naturalisation under Section 6B.

  • The person must be national of any one of the following countries Pakistan, Afghanistan,
  • The person belongs to any one of the following minority communities in the respective country Hindu, Sikh, Jain, Buddhist, Parsi,
  • The person must have been entered in India on or before 31st December, 2014.
  • The rule states that a person of Indian origin, person married to a citizen of India, minor child of a citizen of India, person whose parents are registered as citizens of India, person who is registered as an Overseas Citizen of India Cardholder shall be eligible to make an application for the grant of citizenship. The applicants must comply with the provisions of Section 5 and submit the applications in prescribed forms.
  • Any individual who has resided in India throughout the period of 12 months immediately before making an application for registration or been in the country during the 8 years immediately preceding the said period of 12 months for a period of not less than 6 years. Thus, the rule relaxed the residence requirement for naturalization of the migrants from twelve years to just six years.

Further, the person opting for citizenship by naturalization shall fulfill the qualifications under the third schedule by providing the following documents –

  1. An affidavit verifying the correctness of the statements made in the application, along with an affidavit from an Indian citizen testifying the character of the applicant.
  2. A declaration from the applicant that he has adequate knowledge of one of the languages as specified in the Eighth Schedule to the Constitution.

Every application made under this rule must include the following documents –

  1. a copy of any one of the documents specified in Schedule IA;
  2. a copy of any one of the documents specified in Schedule IB; and
  3. an affidavit in format specified in Schedule IC.

Procedure to apply for Citizenship – Rule 11A and 13A

  • Submission of Application – The applicant shall submit an application for registration or naturalization under section 6B in electronic form to the Empowered Committee through the District Level Committee as may be notified by the Central Government.
  • Acknowledgement – On submission of the application, an acknowledgement in Form IX shall be generated electronically.
  • Document Verification – The District Level Committee led by the Designated Officer, verifies the documents submitted along with the application.
  • Oath of Allegiance –The Designated Officer administers the oath of allegiance specified in the Second Schedule to the Citizenship Act, 1955, to the applicant. The signed oath, along with confirmation of document verification, is forwarded electronically to the Empowered Committee.
  • Refusal Consideration –The Committee has the power to reject the application if an applicant fails to appear in person despite reasonable opportunities.
  • Scrutiny of Applications – The Empowered Committee referred to in rule 11A scrutinizes the application for grant of citizenship under section 6B to ensure that the application is complete in all respects.
  • Grant of Citizenship – The Empowered Committee may grant the applicant the citizenship of India if, it is satisfied that the applicant is fit and proper person to be registered/naturalized.

List of documents to be attached with the prescribed forms –

  • A copy of any one of the document in Schedule 1A ( Annexure – 1)
  • A copy of any one of the document in Schedule 1B ( Annexure – 2)
  • An Affidavit in format as in Schedule 1C ( Annexure – 3)
  • A copy of the valid or expired Foreign Passport, If available
  • A copy of the valid or expired Residential Permit, If available
  • Evidence of the date of birth of the parents or Evidence of his/her husband’s /wife’s Indian Nationality a copy of the passport or birth certificate as the case may be.

Schedule 1A provides for a list of documents that the applicant must submit in order to prove that he/she is a national of any of the three countries (Afghanistan/Bangladesh/Pakistan)

Schedule 1B provides for a list of documents that the applicants must submit in order to prove that he/she has entered into India on or before 31st December, 2014

Assam and CAA

The National Register of Citizens is a registry of all lawful citizens. Its creation and maintenance were made mandatory by the amendment in 2003 to the Citizenship Amendment Act. In January 2020, the NRC was only implemented in states like Assam. However, the BJP has promised to implement it across the entire country of India in its election manifesto. The NRC records all legally-qualified citizens to ensure that those who are not documented could be deemed illegal immigrants (often known as “foreigners”). The NRC’s experience with Assam NRC shows that many individuals were classified as “foreigners” because their documents were considered insufficient.

It is criticized that the current amendment to the Citizenship Act provides a “shield” for non-Muslims who can claim that they were refugees fleeing from the persecution of Afghanistan, Pakistan or Bangladesh. Further, it also protested for excluding Muslims from the same benefits.

The Legal Challenge

The amendment was challenged before the Supreme Court in 2020 by the Indian Union Muslim League (IUML). Since then, the validity of CAA is challenged before the SC through more than 200 petitions. The petitions include the Cong leader Jairam Ramesh, the Indian Union Muslim League, and it’s MPs, Lok Sabha MP and AIMIM president Asaduddin Owaisi, Ramesh Chennithala, RJD leader Manoj Sha and TMC leader Mahua Moitra, and political organisations such as the Assam Pradesh Congress Committee, Asom Gana Parishad (AGP), National People’s Party (Assam), Muslim Students’ Federation (Assam), and Dravida Munnetra Kazhagam (DMK).

The law has been questioned on the grounds of religious discrimination against Muslims and arbitrariness. The Centre filed affidavit stating that the issue was not amenable to judicial review since matters of citizenship, immigration and foreign policy fall squarely within the domain of Parliament.

In October 2022, a Bench comprising then Chief Justice of India U U Lalit and Justices Ravindra Bhat and Hima Kohli passed an order stating that final hearings would begin in December 2022 after CJI Lalit’s retirement. However, the cases on arbitrariness of CAA and pleas against the validity of Section 6B have not been heard since. According to the Supreme Court website, the case is currently listed before a Bench headed by Justice Pankaj Mithal.

The Right to Equality

The challenge to the CAA rests on the ground that it violates Article 14 of the Constitution, which says that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. The petitioners’ argue that using religion as a qualifier or a filter violates the fundamental right to equality.

The petitioners have argued that the National Register of Citizens (NRC) in Assam to identify illegal immigrants, along with the CAA, will result in the targeting of Muslims.

The court will have to look into whether the special treatment given to the so called “persecuted minorities” from the three Muslim-majority neighbouring countries only is a reasonable classification under Article 14 for granting citizenship, and whether the state is discriminating against Muslims by excluding them.

The Supreme Court has to satisfy the equality test under Article 14 laid down in its previous decisions. Firstly, the differentiation between groups of persons must be founded on an “intelligible differentia”, and second, “that differentia must have a rational nexus to the object sought to be achieved by the Act”.

The government has said that Muslims have been excluded from the group of “persecuted” minorities because Pakistan, Afghanistan, and Bangladesh are Islamic countries where Muslims are in majority. However, it will be tested whether these three countries were picked to provide preference to the non-muslims in these three countries or essentially to keep Muslims out of its framework. This question is important because the groups like Tamil Hindus in Sri Lanka, the Rohingya in Myanmar, or minority Muslim sects like Ahmadiyyas and Hazaras have not been provided with the same concession though being persecuted minorities in these countries.

Hence, this is a larger issue of making religion a ground for eligibility for citizenship that needs to be adjudicated by a Constitutional Bench and inquire if it violates secularism, which is a basic feature of the Constitution.

Conclusion

The Citizenship Amendment Act, 2019 is indeed a humanitarian step taken by the Government. In a world where fear and oppression, the CAA provides a ray of hope, to the refugees facing discrimination and persecution in neighboring countries like Pakistan, Afghanistan, and Bangladesh. The Government while taking such bold steps should also realize the implications of it on the society. The concerns of the Muslims must be taken into consideration and clarity must be provided on the same. It is thus, pertinent for the government to address both diversity and inclusivity.

References

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Delisting of Apps from Google Play Store: Google v. Indian Developers

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Introduction

The Android Smart phones occupy a large market in India. Google’s Play Store constitutes the main distribution channel for app developers in the Android mobile ecosystem, which allows its owners to capitalize on the apps brought to market. For app developers, app stores have become a necessary medium for distribution of their apps to the end users and the availability of app store(s) is directly dependent on OS installed on a smart device. The US tech-gaint Google, thus, exercises a dominant position over this market by providing a platform for app downloads of various companies and start-ups on Google Play store[i].

According, to the Google Play Billing System (GPBS) and Google’s payment policies for android phones, the companies are obligated to pay a fees ranging from 11% to 30% depending upon their revenue for the access of in-app features and digital services. The developers under the policy have to pay Google 15% service fee for the first $1 million revenue earned by them and 30% of over $1million. The regulation of internet which, decades ago, was governed by the legislations of the Government is now being determined by the tech giants Apple and Google.

The payment of service charge for using the platform was never an issue for the developers, but the amount levied to avail the services rendered expensive and burdensome for the Indian market.

Events leading to removal of Apps from Google Play Store

On March 1st morning, Google announced that it would remove the apps of over a dozen companies from its marketplace for android phones that are non-complaint with its payment policy. Following this, Google delisted at least 23 apps from nine Indian developers from its Play Store. These include all thirteen apps from Matrimony.com – such as Bharat Matrimony, Kerala Matrimony and Jodi; three apps from InfoEdge – Naukri.com, Naukri Recruiter and 99 Acres; People’s Interactive’s Shaadi.com; Alt Balaji’s streaming service ALTT, and streaming services aha and stage. This affected around 95% of Indian Smart Phones market as the users were unable to search and download the apps from Google Play Store.

This action transpired when the Supreme Court declined to restrain Google from removing apps from its Play Store if they don’t comply with its billing policy.

Google, however, reinstated dozens of apps in spirit of cooperation that were de listed by the company on March 1 for resisting the firm’s platform fees on in app payments.

CCI’s anti-trust battle against Google

CCI imposes a monetary penalty of Rs. 1337.76 Crore on Google for anti-competitive practices in relation to Android mobile devices.

The antitrust watchdog had on October 20 imposed a penalty of Rs 1,337.76 Crore on Google for abusing its dominant position in multiple markets with its Android mobile operating system (OS), and prescribed a set of about a dozen key measures that the company has to comply with.

It directed Google to refrain from participating in anti-competitive practices that were found to be in contravention of the provisions of the Competition Act, 2002 and modify its conduct within a defined deadline. Google however paid the entire penalty amount of Rs 1,337.76 Crore imposed by CCI in the Android case after contesting it before different forums.

CCI imposes a monetary penalty of Rs. 936.44 crore on Google for anti-competitive practices in relation to its Play Store policies 

This is the second ongoing case against the tech giant by the CCI. India’s anti-trust regulator, the Competition Commission of India (CCI), on October 25, 2023 imposed a penalty of Rs 936.44 crore on Google for abusing its dominant position with respect to its Play Store policies. The commission has also issued a cease-and-desist order in which the regulator prescribed eight corrective measures that Google Play needs to implement to correct the anti-competitive practices[ii].

Legal battle over the Google Play Billing System

Post the CCI order, Google expanded its User Choice Billing (UCB) policy to all developers in India and updated its UCB policy. Accordingly, Google started allowing the developers in India to offer alternative billing systems. Developers choosing to do so had their service to Google reduced by 4%.

To comply with the policy, Google has given developers three options: opt for GPBS, have an alternative billing system, or operate on a consumption-only basis without paying a service fee. But app developers in India are not satisfied for two main reasons- first, despite opting for an alternative billing system, they were still obligated to pay Google an 11% or a 26% fee, which they say is unfair, and second, this, they argue, violates, the CCT’s order. the service fee charged was as high as 26% (just 4 percentage points drop from its earlier policy).

Eventually, 14 companies, including those whose apps were delisted, challenged Google Play Billing System (GPBS) in Madras High Court Two additional lawsuits by Disney+ Hotstar and Test Book followed. The Madras HC granted interim protection to all of them, but 12 of the original 14 companies filed a special leave petition in the Supreme Court. On February 9, the apex court did not grant these 14 companies protection from getting delisted but Disney+ Hotstar and Test Book’s protection continued[iii].

Conclusion

Google’s dominance in the smart phone apps market in India and its control over the online search market has been the issue of tussle. The decisions serves as a reminder to tech giants that market dominance comes with a responsibility to operate fairly and to avoid engaging in anti-competitive practices that restrict competition and harm consumers. As the technology industry continues to evolve, it will be essential for companies to operate in a manner that fosters fair competition, innovation, and consumer protection. The Billing Policy of Google is a long-standing issue. It is high time the Government intervenes and make regulations and administer the dominant players in the market.

[i] https://pib.gov.in/PressReleasePage.aspx?PRID=1870819

[ii] https://legal.economictimes.indiatimes.com/news/litigation/googles-appeal-against-ccis-rs-936-cr-penalty-delayed-by-nclat/105518431#:~:text=On%20January%2011%2C%20the%20tribunal,it%20later%20withdrew%20the%20case.

[iii]https://www.thehindubusinessline.com/info-tech/google-moves-a-motion-before-madras-hc-seeking-dismissal-of-disneys-suit/article67202541.ece

iv www.hindustantimes.com

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Supreme Court puts an advertisement ban on Patanjali stating the brand is deceiving masses.

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ABSTRACT

This article talks about the recent supreme court ban on the advertisement published by Patanjali. The ban was due to the misleading nature of the advertisements contributing to the dissemination of false information in the healthcare industry. The healthcare industry is frequently prone to misleading advertisements by AYUSH companies making false claims to the public for profit. Several government enactments and regulatory bodies and their contributions to control false marketing have been listed. The article delves deeper into the legal technicalities involved, current legislation on the same and plausible solutions to combat the problem.

INTRODUCTION

What’s the news, why in news?

Patanjali is in the news again for all the bad reasons. The Hon’ble Supreme Court has banned misleading advertisements published by Patanjali. The face of this brand is the widely known yoga guru Baba Ramdev. On 23rd August, 2023 the Supreme Court while hearing a writ petition filed by the Indian Medical Association condemned the misleading advertisements published in the electronic media by Patanjali. Such ads released by the company aims at making false claims about ‘curing’ diseases like diabetes, asthma etc. The claims are referred to as ‘false’ since there is no scientific backing to substantiate the same. The Chief Justice stated that Baba Ramdev can rightfully promote his practices of yoga and brand, but it is unnecessary for him to criticise other systems and practices in medicine. On 21st November, 2023 the Supreme Court had again issued a severe warning to Patanjali for its unabating misleading advertisements. Justice Amanullah also mentioned that the court will go to the extent of charging a fine of Rs. 1 crore on every product that claims to treat and ‘cure’ diseases. The court also mentioned that it has no intention of sparking a debate as to which system of medicine is better allopathy or ayurveda. The aim is to prevent the spreading of misinformation. The counsel for the brand guaranteed the court that no such advertisements will be made in any way including making statements in the media. The petition also addresses Baba Ramdev’s allegations blaming allopathy behind deaths during COVID-19. The court had also directed the Centre to take strict actions against the conduct of such companies under the Drugs and Magic Remedies (objectionable advertisements) Act, 1954. In its hearing on 27th February, the Hon’ble Court criticised the Centre for not taking any action. The court criticised the laidback attitude of the government as the petition was filed in 2022, and it has been two years since then. The Centre contended that under the Drugs and Magic Remedies Act, 1954 it is the responsibility of the state governments to ensure implementation but the court justly said that it is the duty of the centre to inform the state governments about the same and sought action. The IMA also informed the bench that Patanjali even after assuring the court to cease from producing misleading advertisement in its previous hearing has continued to do the same. The brand disregarded the orders given by the court which led the court to ban the advertisements of products related to diseases under the Drugs and Magic Remedies Act, 1954.

What inferences can be drawn from this news?

Yoga, an ancient practice, has crossed the boundaries of our country due to its innumerable health benefits. Baba Ramdev, a yoga guru, rose to fame as a teacher and promoter of the age-old practice. His popularity led him to start Patanjali Ayurved in collaboration with Balkrishna. The masses of the country have immense trust in Baba Ramdev and the products of his brand. Patanjali products like toothpaste, oils are widely used by the public. In light of these facts, when such a brand spreads misinformation, it influences the public at large. Making false claims of curing dangerous diseases can lead to severe consequences. It is important for people having serious health problems to consult professional doctors. The court proceedings are the testament of the negligent behaviour of the government and the concerned authorities in taking strict actions against such advertisements. The government continues to play the blame game instead of rising to action.

LEGAL FRAMEWORK IN PLACE

Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954[1]

This act aims to manage and regulate the promotion and advertisement of drugs in the context of claiming that such drugs have magical healing properties. Section 2©[2] of the act defines magic remedy which entails advertisement of drugs claimed to ‘cure’, mitigate, prevent or treat any kind of disease mentioned in schedule 1 of such act. Section 4 of the act clearly prohibits advertisements that aim to deceive the public and trick them into voluntary medication. Any violation of the provisions of this act shall amount to criminal offence and shall attract penalty amounting to imprisonment up to one year. The act aims to prevent self-medication by people as well as regulate the advertisement industry in this regard so as to prevent them from influencing the masses.

The constitutionality of this act was challenged in the case of Hamdard Dawakhana v. Union of India[3] on the grounds that it is violative of Article 19(1)(f) & (g)[4]. The court held that it is true that advertisement is a part of the freedom of speech, but the true essence and purpose of advertisement is to promote goods and services. And when this is done, it comes under the purview of trade and commerce since it is no longer the expression of ideas.

 The Drugs and Magic Remedies Objectionable Advertisement Rules, 1955

Rule 3 authorises the concerned persons to launch an investigation on advertisements that prima facie promotes drugs on false pretences. It also empowers the concerned authorities to cease the manufacturing and production of the same.

The Cable Television Network Act[5] and The Cable Television Network Rules[6]

The aforementioned act and rules have established a code for the publication of advertisements which is to be followed by all the concerned persons. Any violation will amount to imprisonment for a year or imposition of fine of Rs. 2000 or both as the case may be. An amendment to the rules in 2006 provides that the advertisement should not violate the code of conduct set out by the Advertisement Standards Council of India.[7]

Consumer Protection Act, 2019

The Consumer Protection Act, 1986 was repealed and replaced by this act to upkeep with latest technological developments. The primary objective of the act is to safeguard consumer interests from the harsh practices adopted by sellers and to establish relevant authorities for the settlement of consumer disputes.

Advertisement defined in section 2(1)[8] of the act includes publishing in electronic media.

Section 9[9] of the act states the rights of the consumers which includes the right to be protected against the marketing of goods, products or services which are hazardous to life and property; the right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices and the right to consumer awareness.

Section 2(28) defines misleading information as an act of publicising and spreading false information and guarantee about the nature, substance, outcome etc of the product. It basically states all the ways in which sellers fool the consumers[10]. The consumer must also act in a reasonable manner.

Section 2(47)[11] of the act gives a comprehensive definition of unfair trade practices which includes advertisements made on any platform spreading misinformation about the product being sold by the company.

Section 10[12] of the act talks about the establishment of the Central Consumer Protection Authority. The act entails the strength, process of appointment, powers and procedures od the CCPA.

Advertising Standards Council of India (ASCI)

ASCI is a not-for-profit self-regulatory body established for the regulation of advertisements under the companies act, 1956 to preserve consumer interests. It hasn’t been established under any legislation or government hence it does not constitute laws for the public or the related industries. People in the advertisement industry and the representative of aggrieved individuals formulate and abide by the principles formulated and laid down by the voluntary body. The principles of this body are Honesty, Decency, Non-harmfulness, and Fair play in a competition.

National Advertising Monitoring System (NAMS)

This regulatory body has been established by ASCI in 2012 in collaboration with TAMS Media to trace deceptive advertisements. They have been tasked to keep a track of newspapers as well TV channels in regional languages. It overlooks advertisements published in a plethora of sectors including banking, finance, health, medicine etc.

Uniform Code of Pharmaceuticals Marketing Practices (“UCPMP Code”)[13]

UCMP is another such regulatory body instituted under the Department of Pharmaceuticals in 2014 to restrict unethical and immoral practices used by companies. Any publicity of drug promotion must be approved by the respected authority and such information must be confirmed by the concerned bodies as well.

CRITICAL ANALYSIS

Advertisements are important in disseminating vital information to the public as they can help create awareness about a certain cause and help in the disclosure of such information in a quick span of time. In current times, companies misuse advertisements to get consumers to purchase their products. They make extravagant claims to sell their products for profit maximisation. They have frayed from the object of social responsibility to just tricking people. Such a spread of misinformation, especially in the medical industry, can prove to be fatal. The claims made by Patanjali to cure diseases such as diabetes that require special attention and care by medical professionals are not only misleading but outrageous. There is no scientific backing to this claim made by the brand.

Big companies by means of visual aid persuade the consumers further escalating the problem of misinformation. The target audience of these companies are easily susceptible to the methods used by them and are blindsided. Celebrities are made the ambassadors of such brands to reach a wide variety of audiences. Multiple channels of communication such as newspaper, internet are utilised to target different age groups. Even though the consumer protection act promises to protect the customers from evil practices adopted by the companies, hardly any action has been taken against such conduct. Misleading advertisements violate a plethora of consumer rights that have been guaranteed under the Consumer Protection Act. It violates the right of the consumers to information. Consumers have the right to know about every detail of the product being used by them including the side effects. It violates the consumer’s right to safety from the utilisation of products. Companies claiming instant lightening of the skin, rapid weight loss etc can cause long lasting problems to the health of the consumer. Another instance in which the brand Patanjali promoted products on its website aimed at improving the sexual performance of men and women. Such advertisements are strictly prohibited under the drugs and magic remedies act. In the case of K.C. Abraham v. The State of Kerala Peethaambaran Kunnathoor, Chennai[14] the court held that the promotion of the ayurvedic drug ‘Musli Power Xtra’ is in violation of section 7 of the drugs and remedies act. The efficiency of the product was questioned, and the company had to pay a penalty of Rs. 50,000.

The government has turned a blind eye to the manipulative tactics. Ultimately, it is the consumers who become the victim of such scams. Disregard to allopathy by AYUSH companies is a crisis that needs urgent attention of the authorities. According to WHO, spreading fake information is the major cause of hesitancy in taking vaccines and medicines provided by the government. Due to the overload in misleading advertisements people have formed a lot of misconceptions about the healthcare industry. It has become difficult for the government to convince people to take government-provided medicines. As it is said, ayurveda is the science of life. It is a way of living rather than a science that seeks to cure ailments. Certain diseases that have high risk require immediate attention and relief. That’s when allopathy tides in. Making bold statements like allopathy is the reason behind COVID-19 undermines people’s trust in medical science especially in tough times makes people lose hope in the system of medicine. The DMRA Amendment Bill dated 3rd February, 2020 has sought to increase the penalty, addition of more diseases and establishing an Ayurvedic, Siddha and Unani Drugs Advisory Board. All the current enactments only aim at curbing the advertisements rather than focusing on increasing consumer awareness.[15]

CONCLUSION

Given the widespread misuse of advertisement especially in the healthcare industry posing threats to the public at large, the government needs to come to the rescue of the citizens. Stringent actions need to be taken to set precedent for all such companies to cease from making false claims. Heavy penalties must be imposed on industries making extravagant claims. Policies need to be formulated and steps have to be undertaken to supervise advertisements by government authorities. There must be a government supervised and controlled platform accessible by the public wherein information regarding healthcare must be published to combat the problem of false claims made by big companies. Information must be provided in regional languages to ensure easy access and readability by all the sections of the society. Common health related myths must be busted in the same platform. Education also plays a vital role in this regard. Consumers must be made aware of prevalent health diseases and steps to be taken to prevent them. Healthline numbers must be provided in such a platform as well as location of nearby hospitals and the facilities provided therein. Online medical counselling as well as guidance must be provided by the government helping people in remote areas right from admission of the patient in the hospital to finances in case of medical emergencies. If the implementation is done diligently, then it will make a significant impact in the healthcare industry. The DMRA act is outdated calling for the need of new codified legislation.

REFERENCES

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8297168/

https://www.who.int/europe/news/item/01-09-2022-infodemics-and-misinformation-negatively-affect-people-s-health-behaviours–new-who-review-finds

https://www.livelaw.in/pdf_upload/248322022133848538order21-nov-2023-506018.pdf

https://www.livelaw.in/top-stories/baba-ramdev-should-not-abuse-medicine-systems-ayurveda-allopathy-supreme-court-ima-plea-207231

https://www.livelaw.in/top-stories/supreme-court-patanjali-baba-ramdev-misleading-advertisements-indian-medical-association-242694

https://www.livelaw.in/top-stories/supreme-court-issues-contempt-notice-to-patanjali-ayurved-its-md-for-misleading-ads-on-medicinal-cures-250636

https://www.livelaw.in/top-stories/entire-country-taken-for-a-ride-you-shut-eyes-for-2-years-supreme-court-pulls-up-union-for-inaction-on-patanjali-ayurved-ads-250686

[1] Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954, No. 21, Acts of Parliament, 1973(India).

[2] Drugs and Magic Remedies (Objectionable Advertisement) Act, § 2(c), 1954, No. 21, Acts of Parliament, 1973(India).

[3] Hamdard Dawakhana v. Union of India, 1959 SCC Online SC 38

[4] Constitution of India, art. 19(1)(f) & Constitution of India, art. 19(1)(g)

[5] Cable Television Network Regulation Act, 1955

[6] Cable Television Network Rules, 1994, GSR 729(E)

[7] Misleading Drug Advertisements: Busting the Myth and Protecting Consumers, 1.4 JCLJ (2021) 592

[8] Consumer Protection Act, 2019, S. 2(1)

[9] Consumer Protection Act, 2019, S. 9

[10] Consumer Protection Act, 2019, s. 2(28)

[11] Consumer Protection Act, 2019, S. 2(47)

[12] Consumer Protection Act, 2019, S. 10

[13] Uniform Code of Pharmaceuticals Marketing Practices 2014

[14] KC Abraham v. State of Kerala Peethaambaran Kunnathoor, Chennai WP (C) No. 11410 of 2011

[15] Direct Marketing and Advertisement of Certain Medical Devices to Patients in India – A Dilemma, 6.1 RSRR (2020) 158

Article written by- Rashi Hora

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Navigating the legal issue: Sexual Violence in Conflict Areas

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Our duty is not just to stand in solidarity with the survivors, but to actively work towards eradicating sexual violence in conflict and creating a future free from fear – Phumzile Mlambo-Ngcuka.

INTRODUCTION –

The world has seen various conflicts over numerous reasons throughout its history and further various tactics and actions have been undertaken to destroy the opposite nation with arguably, sexual violence in such areas being the worst.

Sexual Violence has been defined as “Sexual violence is any sexual act, attempt to obtain a sexual act, or other act directed against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting. It includes rape, defined as the physically forced or otherwise coerced penetration of the vulva or anus with a penis, other body part or object” by the World Health Organization.

Further, conflict related sexual violence is defined as “refers to rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilization, forced marriage and any other form of sexual violence of comparable gravity perpetrated against women, men, girls or boys that is directly or indirectly linked to a conflict” by the United Nations.

As reflected by the quote, the article will try to analyze the way forward in relation to sexual conflict in conflict areas herein referred to as Conflict related sexual violence.

BRIEF HISTORY AND PRESENT SCENARIO OF CONFLICT RELATED SEXUAL VIOLENCE – 

It has been noted that the act of rape was criminalized by few army codes as early as 14th century noting the affect it would have had on the civilians as well as the discipline of the army. 

The Lieder Code drafted during the American Revolution in February of 1863 has been considered as the earliest known legal code which tried to establish the law dealing with armed conflict which mentions and states that sexual assault was a punishable offence.

World War 2 was another armed conflict where sexual violence was silent evil which prevailed as a silent crime. after the end of the war saw one of the most criticized judgments regarding to sexual violence, produced by the judges who were a part of the Nuremberg Trials, they had stated that the laws of the war which explicitly criminalized sexual violence in conflict areas was only applicable to the enemy nations and not the allied forces[1]. This was further in relation to the highly debated Sexual violence allegations which was leveled against the soviet Army which was part of the Allied forces.

On the backdrop of the World War 2, the Geneva Conventions,1949 was passed which explicitly criminalized wartime Rape through Article 27. Further, this period saw many nations around the world gain their independence and further, enact their own laws criminalizing Sexual Violence altogether. But Conflict related sexual violence is still very much prevalent in the modern days with many allegations being leveled against various countries and their armies in the 21st century. few of the recent armed conflicts where there was an alleged large scale sexual violence are Tigray War, Myanmar Civil War, Russian Invasion of Ukraine etc.

It must be noted that even with various international conventions which have been ratified by various countries across the globe, Conflict related sexual violence is still as prevalent as it was in the 20th century with many being recorded for namesake without holding anyone responsible for the same.

THE UNITED NATIONS REPORT ON CONFLICT BASED SEXUAL VIOLENCE 

The United Nations report on conflict-related sexual violence covering 2022 underscores the urgent need to address this horrific issue. It has persisted despite international efforts to eradicate it, and the report highlights the dreadful situation that continues to spread out in various conflict-ridden regions around the world. Survivors of conflict-related sexual violence constitute a diverse and multifaceted group. The report documents cases involving women, girls, men, boys, and individuals of diverse sexual orientations, gender identities, and those affected by disabilities. Their ages range from the very young to the elderly, with the majority coming from socioeconomically marginalized communities. 

It is important to note that the report further uncovers the often-overlooked reality that men, boys, and gender non-conforming individuals are also strongly impacted by conflict-related sexual violence. Despite progress, it is crucial to confront the ongoing challenges faced by survivors and the children born of conflict-related rape. Stigma, insecurity, and socioeconomic isolation persist, casting long shadows over the lives of those affected.

As the civic space decreased and the rule of law weakened in 2022, both state and non-state armed groups saw the opportunity to exploit the vulnerabilities of affected populations. Groups used sexual violence, including rape, gang rape, and abductions, as real weapons, and instruments, causing immeasurable suffering to individuals and communities.  Internationally recognized terrorist organizations and transnational criminal networks have employed sexual violence as a tactical weapon to destabilize already fragile regions. 

This action and tactic of committing sexual violence has hindered all sorts of morality as well as any attempt made for a peaceful resolution of the issue. In several instances, sexual violence has been used as an instrument of intimidation. In some cases, the authorities responded to civilian demonstrations and protests with disproportionate force, including the use of sexual violence as a means of repression. This abuse of power creates a climate of fear that completely suppresses dissent and undermines basic human rights.

The involvement of multiple countries and their armies has made it difficult to hold perpetrators accountable. All too often, attribution for these dreadful crimes has been hindered because of the presence of multiple and varied actors, including state forces, private military and security companies, and militias operating alongside national armed forces. This lack of accountability perpetuates an extremely dangerous cycle of impunity, emboldening those who commit sexual violence to continue their actions without any fear of consequences. 

In order to address all these issues, it is pertinent to make sure that every claim of sexual violence is thoroughly investigated by a third independent body whose reports and findings are bindings as well as further acting as a solid proof in order to meet the ends of justice.

CONCLUSION

Conflict related sexual violence is still a huge issue which has to be addressed with due care and regards. It has often so happened that various instances of such conflict related sexual violence have just been forgotten or addressed poorly with the victims finding absolutely no justice. Further, the crippled international laws and organisations are bound by their limitations due to which they do not address such issues and cases until and unless they are in the interests of the countries which are considered to be the first world countries.

Therefore, there is an urgent need to address the issue of sexual violence in conflict areas with humanity and justice at the core rather than beneficial interests of the countries and for this to happen, there is a need for the international organisations to take up such issues more seriously and make sure that the nation at fault is punished according to the conventions laid down because at the end of the day, everyone is a human regardless of which country they belong to.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Article Written By – Namratha Sharma

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COMMUNAL STATEMENTS MADE BY NEWS CHANNELS – STRINGENT STATUTORY REGULATION IS THE NEED OF THE HOUR

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“SENSE over SENSATIONAL”, “DATA over DRAMA”, “FACTS over FRIVOLOUS” must be the mantra practiced by the TV News Channels in the course of disseminating the information.

INTRODUCTION

Every institution in India is governed by certain standard regulations or norms, but the set of standards applicable to media are yet to be developed. Media one of the strongest pillars of democracy is considered to act itself in maintaining certain practice of professionalism. It is also regarded as watchdog since it checks and balances the power of the other three branches of government i.e., the executive, the legislature and the judiciary. Media being regarded with such great importance must possess the standards of high value. The free press facilitates the individuals to partake in all pertinent matters affecting them. It has been universally accepted that only an autonomous press or media can endow citizens with a diversity of information and views on matters of public significance. The liberty to impart information is vested with media.[i]

Freedom of expression and communication through mediums including a variety of electronic media or published materials is an application of the individual human rights principle on freedom of expression. Therefore, the freedom of the press or media is very essential since this enables the public to know the performance of the government, the state, financial system, social systems and other matters of public concern.

The Right to freedom enshrined under Article 19 of the Constitution of India guarantees the Freedom of Speech and Expression, among the other rights. Although Article 19 does not expressly provide for freedom of press, the fundamental right of the Freedom of Press is implied in the Right to Freedom of Speech and Expression.[ii]

The media practitioners and journalists must comply with appropriate moral and ethical standards of conduct. The media which collects and facilitates information to the public must carry it out with utmost duty and caution and refrain from expediting misleading and distorted information. Hence, the media must ensure a stable balance between the exercise of its freedom and responsibility.

The Media and Entertainment (M&E) Industry in India, which includes print, cinematograph films, broadcasting, and digital media, are all governed by the Ministry of Information and Broadcasting (MIB).

ACTS AND REGULATIONS GOVERNING NEWS CHANNELS AND JOURNALISTS

  • Cable Networks Regulation Act, 1995 – It deals with television, both news, and entertainment regulations. This Act majorly covers the provisions relating to broadcast licensing, content regulation, advertising standards, redressal mechanisms and penalties. There are only few provisions with regulate the news channels.

  • Print media regulated by the Press Council of India – The Press Council Act, 1978 claims to be the statutory regulation on the subject. The Press Council of India (PCI, being a statutory and quasi-judicial body governs the conduct of the print media. The chairman, a retired judge of the Supreme Court of India, heads the PCI. However, the Press Council of India has a limited role to play in the regulation and therefore the Media sector in India is often considered to be self-regulated.

  • News channels and journalists conduct regulated by the News Broadcasters Association (NBDSA) – The television media has established its own ‘self’ regulatory mechanism, i.e., News Broadcasting Standards Authority (NBSA). Self-regulation is the fourth type of regulation which involves regulations being administered and enforced by the bodies themselves through internal policies[iii].

The general idea behind the concept of self regulation is that if the press comes under government control, it would intervene or interfere with media independence and autonomy. Hence, India adopted self-regulation mechanism to ensure impartiality and neutrality.

At present, apart from the statutory body, PCI, there is no other statutory regulatory body to regulate the content of the News Channels in India. They are regulated by a self-regulatory body known as the News Broadcasters & Digital Association (NBDA) which has formulated a standards code known as the NBA Code.

The NBDA has also laid down news broadcasting standards regulation as an industry standard and also constituted under it News Broadcasting & Digital Standards Authority (NBDSA) for disputes adjudication and to enforce the NBA code.

Apart from that, an internal mechanism for adherence to authenticity of information is sought to be ensured through mechanisms such as Media Council of Peers and Media Watch Groups, Readers Editor or Internal Ombudsman, ‘letters to the editor’, all of which are intended to highlight and address the wrongs done by media-persons, reporters or the management[iv].

CASE LAWS – COMMUNAL REMARKS MADE BY THE TV NEWS CHANNELS

• In a case involving the News Channels Times Now Navbharat, News 18 and Aaj Tak, the NBDSA imposes penalties for violating The Code of Ethics and other guidelines on communal issues.

In the programme broadcasted by Times Now Navbharat and News 18, the journalists while discussing the Shraddha Walker murder case incorrectly cited Shraddha Walker as an example of ‘love jihad’. The NBDSA took cognisance of the matter and said that alleging the murder as ‘love jihad’ to air sensational news and gain popularity was against the guidelines. Hence, the term ‘love jihad’ should be used with serious introspection in future broadcasts as religious stereotyping amounts to a violation of the Code of Ethics.

The NBDSA thus imposed a fine of ₹1 lakh and ₹50,000 on the broadcaster of Times Now Navbharat and News 18 respectively and directed the broadcasters of both the channels to get the video removed from all online platforms within seven days of the order.

With regard to the programme broadcast by Aaj Tak, the anchor failed to mention that a mosque was burnt down in Nalanda, Bihar, that Muslim shops and houses around the mosque were also burnt down, and that the cops did not arrive for several hours while the burning was taking place, and when they did arrive, they misbehaved with Muslim women and looted the houses. “The anchor kept blaming Muslims for the violence,” it was alleged[v].

The NBDSA held that by broadcasting the impugned programme, the broadcaster had violated the Code of Ethics and the specific guidelines and accordingly, the authority warned the broadcaster to be careful while airing future broadcasts and also directed it to remove the video from all platforms within seven days of the order.

  • NBDSA imposes ₹50,000 Hindi TV channel News18 India for turning a news debate on Hijab into a “communal issue” and violating the said guidelines.

In this case, the news channel, while discussing the Hijab ban in Karnataka had violated the guidelines by staging the ‘extreme views’ in the debate session.

The anchor Aman Chopra was accused of referring to the Muslim students as “Hijabi gang”, “Hijabwali Gazwa Gang”. The complaint also stated that there were extreme communal remarks made by the panellists in the course of the debate[vi].

The NBDSA did not find any merit in the accusation against the journalist. But, noted that the anchor had acted in flagrant disrespect of the Code of Ethics & Broadcasting Standards. It highlighted the decision of Supreme Court on the role of the anchor to maintain a balance between the panellists and the crucial role they play in stopping hate speech.

The NBDSA held the anchor not only failed to stop the other panelists from crossing the boundary but had given them a platform to express extreme views which could adversely affect the communal harmony in the country. Therefore, considering the above merits the NBDSA imposed a fine of Rs 50,000 on the broadcaster and admonished the broadcaster. Further, it directed the broadcaster to remove the video of the programme from its website and all platforms within seven days of the order.

REALITY OF SELF – REGULATION IN INDIA

The cross-media ownership by big corporate companies has assumed alarming proportions[vii]. Early 2013 saw the leak of the Radia tapes which disclosed the shocking and unholy links between journalists and politicians, lobbyists and business groups. The Press Council of India through its Chairman addressed this issue; however, no stringent measures had been taken. That depicts the incapacity of Press Council of India. It cannot suspend the journalists for the unfair work they do[viii].

Presently, there is no qualification prescribed by the Press Council for journalists, although there is such a situation prevailing in the Bar Council Act for advocates and Medical Council Act for medical practitioners. The Bar Council of India and the State Bar Councils have control to remove[ix] a member from the profession for professional misbehaviour and infringement of professional principles. The Medical Council also has similar powers[x]. But the Press Council does not have any power beyond warning or censuring[xi] delinquent journalists. Thus in India, there is no self regulation in reality.

RECOMMENDATIONS TO IMPROVE THE ACCOUNTABILITY OF THE BROADCAST MEDIA – CHANNELS AND JOURNALISTS

  • There is a need for having the contracts made and drafted among media and journalists or guest contributors that lay prominence on clear requirement to follow the Code of Practice. Each media establishment should have concerned branch to see if it is followed strictly.

  • There should be an independent ombudsman appointed to solve any issues pertaining to newspapers and channels. This can be done assessing the circulation or viewership and further on the basis of revenue threshold. The ombudsman should act as a support system for reporters who are asked to refrain from covering any matters, and additionally for readers to lodge complaints[xii].

 

  • There should be a universal code of ethics made and those should be distributed to staff journalists without impediment; assets and income or earnings of the news paper company, the editors, journalists are to be made public[xiii].

  • There is a necessity for media training that can be commenced by media establishments as part of journalism courses. New approaches need to be developed where students will be well informed about the current affairs, the working of press, media and that inculcates interests in them[xiv].

CONCLUSION

No institution can function effectively without adequate framework. The measly and feeble provisions on broadcast regulations have yielded no progress in adjudicating the wrong-doers. The instances of the violating self-regulatory norms are increasing day by day. The deviants can easily get away with their acts by mere payment of fine. Strong legislations have to be enforced to govern the conduct of the news-channels and journalists so as to deter them from committing a similar offence.

Media is the source of information for all the happenings across the country in particular and world at large. Every act or omission on their part influences and affects the public at large. Hence, the media exercising a great impact on the society but be regulated proportionally.

It is the need of the hour to enforce a Statutory Regulation in this regard. The penalizing provisions must be strong and unambiguous to address all the deviant acts of the perpetrators. Further, the need of the time is to draft a common code of conduct for journalists – reporters and editors – separately taking ideas from working journalists across print, TV and web, retired veteran journalists, and those affiliated with media.

Therefore, if the government truly believes in self-regulation, it should take efforts to mandate or facilitate the coming together of the broadcasting fraternity under one umbrella legislation.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Article Written by – Keerthi K

[i] E. Siapera (eds.) Radical Democracy and the Internet: Interrogating Theory and Practice (Palgrave Macmillan publisher, London, 2010).

[ii] Virender v. State of Punjab, AIR 1958 SC 986 and Sakal Papers v. Union of India AIR 1962 SC 305.

[iii] Denise E. DeLorme, “Early Journalists and the Evolution of Publicists’ Stunts: From Circus Ballyhoo to Professionalism” 2 Journal of interdisciplinary & multidisciplinary Research 27 (2008).

[iv] Meera Mathew, “MEDIA SELF- REGULATION IN INDIA: A CRITICAL ANALYSIS”, ILI Law Review , Winter Issue 2016 

[v] https://www.thehindu.com/business/Industry/nbdsa-takes-action-against-three-tv-news-channels-for-violating-guidelines-on-communal-issues/article67905171.ece

[vi] https://thewire.in/media/news18-india-fined-nbdsa-hijab-ban-communal-harmony

[vii] Ibid

[viii] Dunja Mijatović, Media Self-Regulation Guide Book (OSCE publication, Vienna, 2013).

[ix] Advocates Act, 1961, s. 35.

[x] Indian Medical Council Act, 1956, s.24.

[xi] Press Council Act, 1978, s. 14(1).

[xii] Keval J Kumar, Media Education, Communications and Public Policy: An Indian Perspective, (Himalaya Publishing House, Bombay, 1995). Avialable at : http://www.diplomatie.gouv.fr/fr/IMG/pdf/KevalKumar.pdf (last visited on Aug. 25, 2016).

[xiii] Meera Mathew, “MEDIA SELF- REGULATION IN INDIA: A CRITICAL ANALYSIS”, ILI Law Review , Winter Issue 2016 

[xiv] Ibid

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