We are pleased to announce the re-constitution of our Editorial Board for the academic year 2016-17. The new Editors are: 1. Aishwarya Gupta 2. Aratrika Choudhouri 3. Ira Chadha Sridhar 4. Paridhi Poddar 5. Srivats Shankar 6. Vivasvan Bansal
We congratulate the new team and wish them all the very best for the coming year. ... See MoreSee Less
Weekly Note on Right to be Forgotten by Rashika and Abhinav
The Karnataka High Court recently directed its registry to ensure that an internet search made in the public domain would not reflect the name of a woman associated with a previous criminal order passed by the same High Court. This marked the first instance where the ‘right to be forgotten’ has been recognised and applied by Indian courts. The right to be forgotten involves the removal of personally incriminating information from the public domain. Justice Anand Bypareddy, who passed the order, reasoned in his judgment that individuals involved or implicated in cases of a highly sensitive nature possessed a “right to be forgotten” in order to avoid an adverse impact upon their personal reputation and standing in society.
This right allows individuals to request the removal of personal data from being available online. The origin of this right can be traced back to the French jurisprudence, the ‘right to oblivion’ (droit à l’oubli) and since then it has been recognised in a number of jurisdictions across the world. It was a concept that was deliberated in the European Union and was recognised formally in the EU as well as Argentina in 2006. In fact, in England, the Rehabilitation of Offenders Act, 1974 allows some criminal convictions to be ignored after a rehabilitation period. Such data protection rules have attempted to exclude potentially damaging information about individuals from the public domain; however, there is a lack of international consensus on the same.
The Karnataka High Court order takes into account the evolving trend in western countries to recognise an individual’s right to determine her/his life autonomously without being stigmatised as a consequence of specific unsavory actions in her/his past. Interestingly, the judgment does not delve into the contentious debate over the conflicting rights to privacy and free speech and expression. The recognition of the right to be forgotten raises several concerns regarding the impact such recognition would have on freedom of expression. Skeptics raise concerns along the lines that such rights are a form of censorship that lower the quality of information available to all citizens. It has further been argued that a right to be forgotten would lead to widespread suppression of facts. However, the need for such a right exists because of the fact that in today’s day and age, revenge porn and petty crime records are available simply by entering a person’s name. The ease with which such information is accessible is alarming. Most jurisdictions have recognised that there exists a right to happiness, which includes the freedom to live a life free from unwarranted and unnecessary attacks on one’s character, social standing or reputation. The growing trend of revenge porn poses a threat to the reputation that an individual enjoys. There thus rightly exists a need for either the judiciary or the legislature to recognise that citizens must be permitted to alter their internet footprint. ... See MoreSee Less
Weekly Note on “A Relaxed Adoption Regime: A Step towards Facilitation” by Aratrika Choudhuri
The new Adoption Regulations, 2017, framed by the Central Adoption Resource Authority (CARA) - as mandated under Section 68(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015 - and effective from January 16, 2017, have been hailed as a progressive step towards strengthening the adoption programme in India. The Regulations seek to create a holistic framework for resolving issues faced by both adoption authorities as well as Prospective Adoptive Parents (PAPs).
The 2017 rules clearly ensconce the best interests of the child, and due regard to compatibility with the socio-cultural environment, as fundamental principles governing the adoption process. Registration on the Child Adoption Resource Information and Guidance System is mandatory for all PAPs. Such registration would be a deemed registration in all Specialised Adoption Agencies of the State or States they have opted for, thus streamlining the adoption process in a much more efficacious manner.
Notably, the regulations have expanded the definition of “children eligible for adoption” to include “a child of a relative” and “child or children of spouse from earlier marriage, surrendered by the biological parent(s) for adoption.” Thus, relatives will also be now permitted to adopt children, as opposed to the past scenario wherein only orphaned or abandoned children were permitted to be adopted. However, for adoption by relatives or step-parents, PAPs will need to seek consent from a biological parent if he/she is alive, or otherwise from the Child Welfare Committee, before filing an application in a court to obtain an adoption order. Further, in case the PAPs are a couple, at least two years of stable marital relationship is mandatory, and the minimum age difference between the child and either of the PAPs must not be less than twenty-five years. However, this age criterion does not apply in case of relative adoptions and adoption by the step-parent, thus demonstrating a marked willingness to place the child in a familiar environment, and a more holistic approach to the issues involved in child custody and guardianship.
Continuing the drive to reduce adoption-related expenses, the regulations have waived the passport-related fee that foreigners had to pay if they adopted children from India and wished to take them abroad. The exemption now enables foreigners to directly secure passports for their adopted children, without having to submit a surety bond of Rs 15,000 for the same. The Women and Child Development Ministry and the CARA proposed that this requirement be done away with, primarily because of the fact that the Home Study Report, containing details of the adoptive parents, such as their social and economic status, background, standard of living, would already provide the requisite psychosocial profile of the PAPs, and therefore such bonds or future investments are now rendered unnecessary. This clearly demonstrates the increasing significance attached to proper data-collection and data-storage in a continually updated repository, with respect to the PAPs.
Further, the Child Study Report and Medical Examination Report are required to be provided, thus effectuating a bilateral transfer of information and transparency in the adoption process. The Child Study Report would also include the individual care plan, drawn up after accounting for the child’s medical, emotional, psychosocial, educational, leisure and rehabilitation needs; et al. Notably, post-adoption follow-up reports are required to be regularly provided on a six-monthly basis, for two years, from the date of placement with the PAPs. These guidelines evince a conscientious approach towards ensuring a higher success rate for adoptions, especially given the potential negative psychological impact upon all stakeholders, and the further possibility of detrimental developmental psychosocial consequences for the reserved child, in case of non-selection of the PAPs by the Adoption Committee, or in case the PAPs reject the reserved child.
The regulations have prescribed that the DCPU must, at all times, maintain a panel of professionally qualified social workers, who are also required to assist in pre-adoption counseling of PAPs, and to guide them regarding the intricacies of the matching process. The responsibility for proper documentation and record keeping also vests with the DCPU, therefore a dynamic approach must be adopted to integrate the DCPU with the other stakeholders involved in the adoption process, such as State Adoption Resource Authorities, Specialised Adoption Agencies and Child Care Institutions.
Thus the new adoption norms seek to create a facilitative adoption regime in India, in consonance with the Hague Adoption Convention 1995. While this is certainly a laudable move, reports suggest that there is an urgent need for spreading awareness regarding these rules and regulations, especially with the local authorities, such as the Child Care Institutes and Child Welfare Committees. ... See MoreSee Less
ARTICLE IN FOCUS THE FUTURE OF ASYLUM IN INDIA: FOUR PRINCIPLES TO APPRAISE RECENT LEGISLATIVE PROPOSALS by Bhairav Acharya Last Friday, President Donald Trump signed an executive order that bars citizens of seven Muslim-majority countries from entering the United States for the next 90 days and suspends the admission of all refugees for 120 days. This seismic move is estimated to impact more than 218 million people worldwide. A dozen travelers who fit the ban's criteria were detained and prevented from exiting the New York airport. The apparent objective of the ban is to strengthen national security. While many individuals in India shun this move, till date, India has consistently refused to promulgate a central legislation on refugees, or be a signatory to the 1951 Refugee Convention, treating the decision to grant refugee status as a matter of political expediency. The Citizenship Act is regarding the acquisition and termination of Indian citizenship. Section 2(b) of the Citizenship Act defines the term “illegal immigrant”. The Citizenship (Amendment) Bill 2016 proposes to amend the definition of this term by adding a proviso stating that persons from minority religious communities from our neighbouring Muslim majority countries shall not be considered as illegal migrants and should not be subjected to prosecution.
Bhairav Acharya lays down the four principles on which future asylum laws should be be measured against in THE FUTURE OF ASYLUM IN INDIA: FOUR PRINCIPLES TO APPRAISE RECENT LEGISLATIVE PROPOSALS in Volume 9 Issue 3-4 (2016).
In this paper, the author discusses the Asylum Bill, 2015 that was introduced by MP Shashi Tharoor in the Lok Sabha. He highlights the shortcomings of this bill while laying down the parameter to judge any future asylum bill. He argues that the failure to protect mass influxes has damaged the credibility of the international refugee regime. The paper discusses India’s past experience and calls for promoting the principle of non-refoulement, using differentiated protection procedures, intelligently managing refugee populations, and addressing secondary movements.
Article in Focus: 'Granting Animal Rights under the Indian Constitution: A Misplaced Approach? An Analysis in light of Union of India v. A Nagraja' by Jessamine Matthew and Ira Chadha Sridhar
With the sudden proliferation in statewide protests in Tamil Nadu against the ban on Jallikattu, and the People for Ethical Treatment of Animals undertaking a sustained campaign in favor of animal rights, the tensions between the opposing camps have reached a crescendo. The public discourse on animal rights and welfare in India is now witnessing one of the largest mobilizations in recent history.
In midst of this public debate, we bring to you Granting Animal Rights under the Indian Constitution: A Misplaced Approach? An Analysis in light of Union of India v. A Nagraja' by Jessamine Matthew and Ira Chadha Sridhar in Volume 7 Issue No. 3-4 of the Law Review.
This paper argues that bringing animals within the ambit of rights is not only incompatible with the traditional jurisprudence of rights, but may also be an ineffective method of addressing the larger issue of protecting animals. This is fundamentally because it has been consistently upheld by Indian courts that Article 21 of the Constitution of India is a source of protection for human rights and human dignity. By protecting non-human animal life through Article 21, it is argued that the Supreme Court has defied earlier notions of who the possessors of this right are. Instead, this paper recommends a shift to a duty-based approach towards animal welfare which is more likely to succeed in ensuring the safe and humane treatment of animals by humans. "The Court held that jallikattu, and other sports involving bulls, was indeed harmful to their being. It carefully analysed the nature of a bull’s response to external stimuli or danger and found that bulls’ natural response is that of ‘flight’ as opposed to ‘fight’. However, as these sports take place in closed or restricted environments, bulls are not able to exercise their natural responses, resulting in considerable harm. With respect to the question of the cultural significance of these practices, the Court endorsed the argument of AWBI and held that the PCA Act overrides this culture or tradition. The Court reasoned that even if it had been a cultural practice, it must now give way to the provisions of the PCA Act. " ... See MoreSee Less
Jallikaatu could be referred to as bull taming event typically practiced in Tamil Nadu as a part of Pongal celebrations on Mattu Pongal day, third day of the four-day Pongal festival. The term 'jallik...