Tuesday, December 16, 2014

Section 309 / Rajeev Dhavan

The Union government has decided to decriminalise suicide. A funny interpretation could well be that the Modi government can now commit hara kiri with impunity. But it should be noted that the cases under Section 309, which criminalises suicide, are haphazard, often concealing abetment to murder.
Philosophically, it is argued that the right to life includes the right to die without provocation or abetment by anyone else. In a development that could be traced back to the Wolfenden Committee report of 1957, England ended the criminalisation of suicide in 1961. Countries across the world followed suit. There is also concern about a duty to the sanctity of life. The law does not recognise a duty to save. But we need not get drawn into that controversy. We are concerned with the narrower issue of punishing a failed suicide attempt with imprisonment of up to one year or a fine or both. The offence of suicide is cognisable. A policeman is empowered to go to the hospital where the individual who attempted suicide is recovering, arrest him, and put him through the torture of criminal proceedings at a time when he is already emotionally fragile. In 1970, the Law Commission’s 42nd report recommended repeal and found it “monstrous… to inflict further suffering on even a single individual who has already found life unbearable, and happiness so slender”. In 1972, a bill was introduced in the Rajya Sabha, and discussed in a joint committee that lapsed in 1979.
Politics failed to humanise this provision. The matter was then addressed by the high courts. Bombay (1987) and Delhi (1985) struck down the provision, while Andhra Pradesh (1983) did not. The matter reached the Supreme Court in P. Rathinam vs Union of India (1994), which, in a sprawling and untidy judgment, struck down the provision. But some Supreme Court judges, including Justice J.S. Verma, felt that the right to die was inconsistent with “life and liberty”. This was consecrated in Gian Kaur vs The State of Punjab (1996), though the latter suffered from faulty logic and misplaced concerns.
The proposed amendment was supported by 18 states and four Union Territories. Bihar, Madhya Pradesh and Delhi continued to resist decriminalisation with no coherent argument of principle. But the most interesting aspect of the proposal is that it was linked to Section 124(1) of the mental health bill, which laid down that “the person who attempts to commit suicide shall ordinarily be presumed, unless proved otherwise, to have a mental illness and not be subject to any investigation or prosecution”. The wording of this section is clumsy. It cannot be that if the person is shown to not have a mental illness, he gets neither medical help nor immunity from prosecution.
Not all individuals attempting suicide are mentally ill in the narrow sense of the word. They may suffer from frustration, despair about living, health, debt, poverty, romance or shame, failure, depression. The instances I have culled from newspapers show that all are “sane” human beings who feel that they cannot continue living. This is not to suggest that people attempting suicide do not require medical or psychiatric help. They need support to regain their self-esteem. It is precisely because such people are not ill in the conventional sense that we omit to include them within the purview of welfare or medical care. Alas, the strains of everyday life mean that humanity has gone missing in India’s increasingly competitive and cruel society.
Euthanasia is not to be confused with suicide. Justice M. Katju’s somewhat unsatisfactory judgment on euthanasia in Aruna Shanbaug’s case (2011) did not find approval in Common Cause (A Registered Society) vs Union Of India (2014), which was referred to a larger bench on the grounds that Katju had misconstrued Gian Kaur’s case, which validated suicide and permitted passive euthanasia. Hopefully, the larger bench will examine the issues of suicide and euthanasia for the terminally ill who cannot decide for themselves. But the judiciary is not in sync with the times on these matters.
We are still left with an important issue. To punish attempted suicide is wrong. But what do we do in cases where someone else provokes or abets the suicide? Surely, the abettor, and anyone he is in conspiracy with, are guilty of homicide? That is why Section 305 of the Indian Penal Code deals with abetment of the suicide of a child or insane person. The charge invites death, life or other terms of imprisonment and a fine. Section 306 deals with abetment of suicide where the abettor, if guilty, may be awarded 10 years and a fine. The Delhi and Bombay courts felt that while suicide should be decriminalised, abetment to suicide should remain on the statute books.
Those who drive a person to suicide are criminals and  not to be spared. We see this in dowry death cases. But since 1986, there has been a direct provision, Section 304B, where punishment is not less than seven years and goes up to a life term. The mandatory seven years creates a problem, making judges reluctant to convict under 304B. A similar problem has arisen with minimum sentences under acts protecting SCs and STs.
How is the law to be changed? No fancy footwork is required on this through mental health legislation. What is needed is a simple clause replacing Section 309. An amendment to the IPC should simply state Section 309 of the IPC is repealed. The inhuman provisions criminalising suicide should have been replaced decades ago. On this, the Modi government has stolen a march over its predecessors. But we must withhold comment till the decriminalisation of suicide is actually enacted.

The writer is a senior advocate at the Supreme Court
- See more at: http://indianexpress.com/article/opinion/columns/309-reasons-why/99/#sthash.u4Cnogs2.dpuf

तब तुम क्या करोगे / ओमप्रकाश वाल्‍मीकि

यदि तुम्हें,
धकेलकर गांव से बाहर कर दिया जाय
पानी तक न लेने दिया जाय कुएं से
दुत्कारा फटकारा जाय चिल-चिलाती दोपहर में
कहा जाय तोड़ने को पत्थर
काम के बदले
दिया जाय खाने को जूठन
तब तुम क्या करोगे?

यदि तुम्हें,
मरे जानवर को खींचकर
ले जाने के लिए कहा जाय
कहा जाय ढोने को
पूरे परिवार का मैला
पहनने को दी जाय उतरन
तब तुम क्या करोगे ?

यदि तुम्हें,
पुस्तकों से दूर रखा जाय
जाने नहीं दिया जाय
विद्या मंदिर की चौखट तक
ढिबरी की मंद रोशनी में
काली पुती दीवारों पर
ईसा की तरह टांग दिया जाय
तब तुम क्या करोगे?

यदि तुम्हें,
रहने को दिया जाय
फूस का कच्चा घर
वक्त-बे-वक्त फूंक कर जिसे
स्वाहा कर दिया जाय
बर्षा की रातों में
घुटने-घुटने पानी में
सोने को कहा जाय
तब तुम क्या करोगे?

यदि तुम्हें,
नदी के तेज बहाव में
उल्टा बहना पड़े
दर्द का दरवाजा खोलकर
भूख से जूझना पड़े
भेजना पड़े नई नवेली दुल्हन को
पहली रात ठाकुर की हवेली
तब तुम क्या करोगे?

यदि तुम्हें,
अपने ही देश में नकार दिया जाय
मानकर बंधुआ
छीन लिए जायं अधिकार सभी
जला दी जाय समूची सभ्यता तुम्हारी
नोच-नोच कर
फेंक दिए जाएं
गौरव में इतिहास के पृष्ठ तुम्हारे
तब तुम क्या करोगे?

यदि तुम्हें,
वोट डालने से रोका जाय
कर दिया जाय लहू-लुहान
पीट-पीट कर लोकतंत्र के नाम पर
याद दिलाया जाय जाति का ओछापन
दुर्गन्ध भरा हो जीवन
हाथ में पड़ गये हों छाले
फिर भी कहा जाय
खोदो नदी नाले
तब तुम क्या करोगे?

यदि तुम्हें ,
सरे आम बेइज्जत किया जाय
छीन ली जाय संपत्ति तुम्हारी
धर्म के नाम पर
कहा जाय बनने को देवदासी
तुम्हारी स्त्रियों को
कराई जाय उनसे वेश्यावृत्ति
तब तुम क्या करोगे?

साफ सुथरा रंग तुम्हारा
झुलस कर सांवला पड़ जायेगा
खो जायेगा आंखों का सलोनापन
तब तुम कागज पर
नहीं लिख पाओगे
सत्यम, शिवम, सुन्दरम!
देवी-देवताओं के वंशज तुम
हो जाओगे लूले लंगड़े और अपाहिज
जो जीना पड़ जाय युगों-युगों तक
मेरी तरह?
तब तुम क्या करोगे?

वह मैं हूँ / ओमप्रकाश वाल्‍मीकि

वह मैं हूँ
मुँह-अँधेरे बुहारी गई सड़क में
जो चमक है--
वह मैं हूँ !

कुशल हाथों से तराशे
खिलौने देखकर
पुलकित होते हैं बच्चे
बच्चे के चेहरे पर जो पुलक है--
वह मैं हूँ !

खेत की माटी में
उगते अन्न की ख़ुशबू--
मैं हूँ !

जिसे झाड़-पोंछकर भेज देते हैं वे
उनके घरों में
भूलकर अपने घरों के
भूख से बिलबिलाते बच्चों का रुदन
रुदन में जो भूख है--
वह मैं हूँ !

प्रताड़ित-शोषित जनों के
क्षत-विक्षत चेहरों पर
घावों की तरह चिपके हैं
सन्ताप भरे दिन
उन चेहरों में शेष बची हैं
जो उम्मीदें अभी --
वह मैं हूँ !

पेड़ों में नदी का जल
धूप-हवा में
श्रमिक-शोणित गंध
बाढ़ में बह गई झोंपड़ी का दर्द
सूखे में दरकती धरती का बाँझपन
वह मैं हूँ

सिर्फ मैं हूँ !!!

Amended Section 66A / Dhruva Jaishankar

If you are reading this article, you have in all likelihood committed a crime. According to Indian law — specifically, Section 66A of the amended Information Technology Act — you could be facing a fine and a prison sentence of up to three years for having sent “by means of a computer resource or communication device” information that is “grossly offensive or has menacing character” or information you know “to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.”
The IT Act’s vagueness and comprehensiveness are troubling at many levels. Instances of Section 66A’s use have been infrequent but arbitrary. Several prominent examples date from 2012, such as a Jadavpur University professor arrested for disseminating a cartoon of Ms. Mamata Banerjee, a businessman in Puducherry charged for a supposedly offensive tweet against a politician, and the arrest of two young women in Maharashtra over comments related to Bal Thackeray’s funeral. Last year, the IT Cell of the Bharatiya Janata Party (BJP) compared the ostensibly draconian nature of Section 66A to the Emergency, with several leaders urging that it be amended or watered down.
Just last week, the Supreme Court requested clarity on Section 66A from the Centre, pointing to the inadequacy of the law and the arbitrariness of its use. The government, in its reply, defended the law: “even a single unlawful/illegal message or image has a potential to tear the social fabric and destroy peace and tranquillity.”
Misconceiving the online sphere
The inadequacies of India’s Internet regime are not relegated to this one particularly contentious piece of legislation. In reality, the Indian state, Indian society, and the Indian economy confront a series of interrelated dilemmas pertaining to the future of the Internet. The manner in which these dilemmas are addressed will be crucial to determining India’s future as an open society, a secure state, and a competitive economy.
Internet-related policy has been difficult to address because of a set of widespread misconceptions and imprecise language. One cardinal misconception is that the Internet is a thing unto itself, to be discussed, debated, and governed in a vacuum. The term “cyber” — whether used on its own or as a prefix — simultaneously insulates these matters from other aspects of public policy while encompassing a startlingly wide variety of issues related to personal and national security, economic development, and global governance. As an increasingly integral part of our day-to-day lives, the Internet is an extension of the offline world, with all its faults and features. And the faults lie not in the cloud, but in ourselves.
India’s digital revolution
The Internet is also here to stay. Mobile technologies have already proliferated widely across the country, a revolution whose implications have yet to be fully internalised. And despite constraints on mobile and broadband infrastructure, Internet use in India continues to expand. The digital revolution is now an integral part of every Indian’s existence — even the poorest of the poor. At the bottom of the pyramid, digital technologies are enabling financial inclusion, improving basic education, and effecting revolutionary changes in the distribution of welfare and social services. At the top, such technologies are advancing commerce, travel, market access, and research and development in unprecedented ways. A stable and open Internet will be inextricably linked to the Indian economy’s ability to grow, innovate, and compete in a global environment.
Disconnect between perceptions
A further misconception — one that is surprisingly widespread in the corridors of power — is that the Internet remains an inherently public space. Yet, as more and more personal information is saved and communicated online, the Internet can no longer be treated in that manner. Users increasingly have their private correspondence, their finances, their personal histories, and their photographs on servers, not on their person. As such, users expect — even if they are not necessarily entitled to — a level of privacy that governments and businesses do not always grant them. Personal violations by other users — incidents of hacking — are treated with opprobrium and are subject to legal action. But there remains a disconnect between Internet users’ perceptions of their own privacy and the ability, authority, and willingness of governments and online businesses to encroach upon it.
Finally, some still believe that the Internet can be — or should be — a completely open and anarchic space. The harsh reality is that, much like the offline world, the Internet is potentially dangerous. For all their unquestionable benefits, digital information and communication technologies can facilitate exploitation, criminality, hate speech, and threats to national security — just as other modes of communication do so in the offline world. The revelation just days ago that Mehdi Masroor Biswas, a Bengaluru-based engineer, was behind the pro-Islamic State Twitter handle @shamiwitness only further reinforces the notion that the Internet cannot remain completely anarchic and ungoverned — untouched by the hand of the state.
India is at present poorly equipped to deal with some of the dilemmas thrown up by these realities. Inadequate laws are but one part of the picture. The IT Act was amended in the wake of the 26/11 attacks in Mumbai, and it was pushed forward with minimal debate and in a climate of insecurity. The end result is so poor as to be simultaneously meaningless and omnipotent, and thus erodes the credibility of our laws and our democracy.
The Indian state is also expanding its capability to monitor communications online — steps that are necessary in the light of the very real threats to civil and national security in India — but with little public discussion as to its implications, and even less thought being given to appropriate oversight. The Centralised Monitoring System (CMS) is one such entity, but in fact several different agencies and ministries have the authority to monitor communications online.
Finally, India — for an economy that is largely dependent on services and small-scale entrepreneurship — is still underutilising the power of the Internet for its economic development. Internet start-ups still face onerous constraints, many of which relate to infrastructure and the regulatory climate. And vested interests resist necessary, and in some cases, obvious changes.
The need for innovation
Fortunately, there are possible solutions at hand to address these challenges. India’s laws on freedom of expression online — specifically Section 66A — need to be brought in line with the “reasonable restrictions” on free speech contained in our own Constitution. Simultaneously, efforts must be made to bridge the gap between public perceptions of Internet use and existing laws. This requires a better understanding by legislators, jurists, and members of the media of the inadequacies of existing legal frameworks. At the same time, better public education of users as to what constitutes illegal online behaviour is necessary. In the absence of such measures, arbitrary arrests and prosecutions for online infractions will continue.
Second, the notion that there is a trade-off between security and freedom must be put to rest. Given the potential for virulent hate speech and digital communications that compromise national security, there will be a continuing need for Indian security, intelligence, and police forces to monitor online communications and take action when necessary in the form of removing content and prosecuting serious violators. But there needs to be adequate oversight in place in the form of independent regulators, Parliament, the media, and the courts. Quis custodiet ipsos custodes ?
Finally, India’s economy — dependent as it is on services and entrepreneurship — will need all the help it can get from the development of a vibrant online marketplace. And yet, for an economy with inherent strengths in services, English language education, and technical skills, India has been remarkably weak in terms of digital innovation. India’s most successful online companies — Flipkart, MakeMyTrip, Rediff — are essentially variants of other online services that have been geared toward the Indian market, while other innovations have essentially involved lowering costs. If India is to compete globally, and if it is to generate tens of thousands of small businesses to ensure employment and growth, incentives and an infrastructure for radical innovation are necessary. The momentum is there in the form of the government’s Digital India campaign, but a closer marriage with Make in India — one that results in a meaningful innovation policy — will undoubtedly be required.

(Dhruva Jaishankar is a fellow with the German Marshall Fund.)

Source : http://www.thehindu.com/todays-paper/tp-opinion/for-better-signage-on-the-cyber-highway/article6691943.ece

New Electricity Act

The amendments to the Act are likely to change the business dynamics for distribution companies (discoms).

It will provide small consumers a choice of suppliers and allow distribution companies (discoms) to procure power from their own renewable energy plants to meet their renewable purchase obligation.

The Union Cabinet on Wednesday cleared changes in the Act. Union Power Minister Piyush Goyal earlier this week said the Bill would be tabled in Parliament soon.

Aimed at creating a competitive market for retail buyers, open access will allow consumers of less than one Mw to choose their supplier.

  • Open access for over 1 Mw allowed – enabling inter-state transmission from surplus to deficit points
  • Power supply business separate from setting infrastructure for supply – opens the market for ancillary business, increases competition
  • Choice to consumer to select his power supplier – market driven tariffs, better supply and open ground for competition
  • Time-bound distribution licence – pressure on discom to perform better
  • RGO along with RPO – promotion of clean energy and its adoption

In the Electricity Act-2003, consumers of more than one Mw can change their distribution company.  

Power generators, too, will be allowed to sell their surplus outside a state. “Opening the sector will make sure the supply of power is in line with market realities,” said an executive in a distribution company.

Currently, state governments can appeal to the regulator to stop such sales in extraordinary circumstances. Distribution companies in other states are unable to freely procure such power.

 “We end up scheduling costly power, which has pushed us to the wall. Banks have also withdrawn any support from the discoms,” said a senior executive with a Delhi-based private power distribution utility.

The distribution industry owes Rs 13,000 crore to power plants.

A big relief for the distribution sector is the separation of the content and carriage businesses. Building infrastructure for power supply and the supply of power will be two different business entities. Besides, any power supplier can use the infrastructure.

The bill also has an important insertion imposing a “duty to connect, supply to request”, where the last-mile supply will keep in mind the economics and viability.

“In most developed markets, the carriage business is controlled by the regulator and content, that is power supply, is market driven within a price band,” said the executive.

As a separate business, the onus of development of the network will rest with the carriage provider.

Distribution companies from across the country have written to the ministry of power seeking a clear demarcation of duties and responsibilities for content and carriage.

The distribution companies, which have repeatedly pointed to their financial stress as the reason for not complying with the renewable purchase obligation, have now been asked to generate renewable power to meet their targets.

The Act proposes a National Renewable Energy Policy and a new Renewable Generation Obligation.

The head of oneof the  distribution companies said the sentiment among Indian consumers was that power should be cheap.

“All consumers think they are burdened with costly power, whereas the discoms struggle with recovering their cost. In a situation like this, an unbundled distribution sector helps all,” said the executive.

Source: http://www.business-standard.com/article/economy-policy/next-gen-power-distribution-era-to-emerge-with-new-electricity-act-114121200892_1.html