Author: Explains

Why in News

1. Supreme Court of India in Subramanian Swamy case upheld the validity of the criminal defamation law.
2. The court pronounced its verdict on a batch of petitions challenging the constitutional validity of sections 499 and 500 of the Indian Penal Code providing for criminal defamation.

What is Defamation?

1. Defamation refers to the act of publication of defamatory content that lowers the reputation of an individual or an entity when observed through the perspective of an ordinary man. Defamation in India is both a civil and a criminal offence.

The Law which deals with Defamation

• Sections 499 and 500

Sections 499 and 500 in the IPC deal with criminal defamation. While the former defines the offence of defamation, the latter defines the punishment for it.

Section 499

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Section 500

Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Supreme Court on Defamation

1. Court rules that defamation laws are not in conflict with the right to free speech.
2. Court stated that notwithstanding the expansive and sweeping ambit of freedom of speech, as all rights, right to freedom of speech and expression is not absolute. It is subject to imposition of reasonable restrictions

Why should it be retained?

1.  The reputation of an individual, constituent in Article 21 is an equally important right as free speech
2. It has interpreted art 21 to provide for the right to reputation and brought a new concept of constitutional fraternity – that is, an assurance of mutual respect and concern for each other’s dignity.
3. The Supreme Court declared that the right to free speech under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21.
4. It has been part of the statutory law for over 70 years. It has neither diluted our vibrant democracy nor abridged free speech
5. Protection for “legitimate criticism” on a question of public interest is available in the Civil law of defamation & Under exceptions of Section 499 IPC
6. Mere misuse or abuse of law can never be a reason to render a provision unconstitutional rather lower judiciary must be sensitized to prevent misuse
7. Monetary compensation in civil defamation is not proportional to the excessive harm done to the reputation
8. Editors have to take the responsibility of everything they publish as it has far-reaching consequences in an individual and country’s life
9. Since there is no mechanism to censor the Internet from within, online defamation could only be adequately countered by retaining defamation as a criminal offence.
10. Also, criminalisation of defamation is part of the state’s “compelling interest” to protect the right to dignity and good reputation of its citizens.
11. Unlike in the U. S, defamation in India cannot be treated only as the civil liability as there is always a possibility of the defamer being judgment-free, i.e., not having the adequate financial capability to compensate the victim.

Why should it not be retained?

1. These restrictions have a chilling effect on freedom of speech; they create an anomaly whereby the threshold for criminal prosecution for defamation is now possibly lower than the threshold for civil damages;
2. “Constitutional fraternity” is not a part of Article 19(2) of the Constitution, which specifically limits the circumstances under which the state can restrict speech to eight enumerated categories.
3. It is also nowhere in the fundamental rights chapter of the Constitution, so the question of “balancing” free speech against constitutional fraternity does not arise.
4. Article 21 which is a shield to protect the individual against State persecution or indifference, is used as a sword to cut down on the fundamental right to freedom of speech and expression because of this provision.
5. Freedom of speech and expression of media is important for a vibrant democracy and the threat of prosecution alone is enough to suppress the truth. Many times the influential people misuse this provision to suppress any voices against them.
6. Considering anecdotal evidence, every dissent may be taken as unpalatable criticism. Sections 499 and 500 of IPC prescribe two years’ imprisonment for a person found guilty of defamation.
7. The right to reputation cannot be extended to collectives such as the government, which has the resources to set right damage to their reputations.
8. The process in the criminal cases itself becomes a punishment for the accused as it requires him to be personally present along with a lawyer on each date of hearing.
9. Given that a civil remedy to defamation already exists, no purpose is served by retaining the criminal remedy except to coerce, harass and threaten.
10. It goes against the global trend of decriminalizing defamation

• Many countries, including neighbouring Sri Lanka, have decriminalized defamation.
• The United Kingdom abolished criminal defamation altogether
• More recently, the Constitutional Court of Zimbabwe struck it down as an unconstitutional restriction upon the freedom of speech.
• In 2011, the Human Rights Committee of the International Covenant on Civil and Political Rights called upon states to abolish criminal defamation, noting that it intimidates citizens and makes them shy away from exposing wrongdoing

11 Investigative journalism can be curtailed and the ombudsman would be threatened.

• The dozens of defamation cases filed in Tamil Nadu to silence journalists show that criminal defamation can fetter democratic accountability.

Way forward

Criminal defamation should not be allowed to be an instrument in the hands of the state, especially when the Code of Criminal Procedure gives public servants an unfair advantage by allowing the state’s prosecutors to stand in for them when they claim to have been defamed by the media or political opponents.

In recognition of the fact that many countries do have criminal defamation laws which are unlikely to be repealed in the very near future, following interim measures can be taken:

1. No-one should be convicted for criminal defamation unless the party claiming to be defamed proves, beyond a reasonable doubt, the presence of all the elements of the offence, as set out below;
2. The offence of criminal defamation shall not be made out unless it has been proven that the impugned statements are false, that they were made with actual knowledge of falsity, or recklessness as to whether or not they were false, and that they were made with a specific intent to cause harm to the party claiming to be defamed;
3. Public authorities, including police and public prosecutors, should take no part in the initiation or prosecution of criminal defamation cases, regardless of the status of the party claiming to have been defamed, even if he or she is a senior public official;
4. Prison sentences, suspended prison sentences, suspension of the right to express oneself through any particular form of media, or to practise journalism or any other profession, excessive fines and other harsh criminal penalties should never be available as a sanction for breach of defamation laws, no matter how egregious or blatant the defamatory statement.

Conclusion

1. While the right to reputation may be protected by the Constitution, it should not be at the cost of freedom of speech.
2. Free speech is necessary because it enables the media to hold governments and individuals accountable. Freedom of speech should also protect the right to offend within reasonable limits.
3. If the ability to legitimately criticize is not protected, voices throwing light on important issues will continue to be silenced by the rich and powerful

Background

1. Africa is a continent with various opportunities such as natural resources, demography and socio-economic development which attracts global attraction and competition.
2. According to IMF, 11 of the world’s fastest-growing economies are in Africa, with many of the nations recording high growth rates.
3. Various countries including India and China have been investing in Africa to tap such potential. This led to widespread investment and development which made the African leaders welcoming the competition.
4. Competition between India and China is for new markets, agricultural land and access to natural resources.

China’s strategy in Africa

1. China with its economic might has invested heavily in various infrastructural projects in Africa and became a strong player in Africa.
2. China started its economic liberalization way before India and with huge manufacturing base made deep inroads into Africa and devised effective strategy to exploit the natural resources in Africa. This created a strong lobby for China in Africa.
3. Since independence, India followed the non-interventionist approach in Africa. However, China established a military base in Djibouti and acts as a net security provider in the region.
4. The African countries have the huge demand for manufacturing and human resources which China has been effectively utilizing to establish a dominance.
5. China has also been leveraging its permanent member status in UNSC to convince African countries that it will effectively tend to their concerns in the United Nations.

India’s strategy in Africa

1. China has made deep inroads into Africa than any other country. But its dominance is slowly being replaced by India’s growing involvement in the region.
2. India has focussed on showcasing its cultural and historical ties with the region to improve the trade relations with resource-rich countries such as Sudan, Ethiopia, and Zimbabwe.
3. India’s soft power strategy has been successful which is evident in countries like Sudan where Indian companies have attained near complete control of the local oil and natural gas industry.
4. In Zimbabwe also, China’s dominance in the energy and resource sectors is being replaced by both state-owned and private Indian corporations.
5. African nations increasingly prefer India over China because of following reasons

• Chinese companies utilize Chinese workers instead of local people = No employment creation. But India employs local people and provide them with skills.
• Chinese companies don’t care about environmental protection, instead only the profits.

Chinese loans come with the prerequisite that only Chinese technology shall be utilized.

Way forward

1. Although China has a larger presence in African economy than India, there are growing opportunities for India to improve trade relations with Africa such as initiatives like Asia-Africa growth corridor proposed by both India and Japan for improving development and people-people partnership.
2. Africa is key to India’s economic and maritime interests in the Indian Ocean region. The Prime Minister’s emphasis on the “blue economy initiative” which aims to build on maritime trade links between India and the countries situated along the Indian Ocean is significant.
3. Africa’s automotive sector is growing on the back of rapid urbanisation, a growing consumer base with rising disposable income and a huge regional market.
4. It needs investments for creating infrastructure in ports, roads and railways, and training programmes to build a skilled labour force.
5. Therefore, Our expertise and human resources in building roads, airports, ports, railways, economic zones and industrial corridors should be shared.
6. India must not overlook the prospects of commercialisation of Indian innovation and technology in Africa.

• For instance, a unique opportunity lies in Africa’s agriculture sector which suffers from low productivity, limited use of technology, lack of high yielding varieties of crops and good quality seeds.
• This opens a window for Indian entrepreneurs in high social impact sectors including agriculture, information and communication technology, pharmaceuticals, energy and healthcare.

Practice Question

1. “Although China has a huge presence in African economy, India has been slowly making inroads into Africa replacing China”. Comment.

Why in news?

1. Recently, the government approved the establishment of India’s first mega coastal economic zone (CEZ) at Jawaharlal Nehru Port (JNPT) in Maharashtra.
2. The CEZ will be located in the north Konkan region spread across Nasik, Thane, Mumbai, Pune, and Raigarh.
3. It will be part of 14 mega CEZ under the National Perspective Plan of the Sagarmala Programme.

What is Coastal Economic Zone?

1. It is a spatial economic region that could extend along 300-500 km of coastline and around 200-300 km inland from the coastline.
2. Each CEZ will be a grouping of coastal districts within a state.
3. It will provide a geographical boundary within which port led industrialization can be developed through uniform policy along the ports and coastal states.
4. Under CEZ, investor and business-friendly environment including ease of doing business, swift environmental clearances etc.

Significance

1. These CEZs are aimed at promoting the development of port-proximate industrial clusters, encourage port-led development, reduction of logistics costs and time for the movement of goods and enhance the global competitiveness of Indian manufacturing sector.
2. CEZ will facilitate export-led coastal economy based on labour-intensive sectors and will result in employment creation.
3. It will increase export growth since large manufacturing industries are assisted by ancillary industries in the CEZ.
4. CEZ would attract foreign investments with technology, capital, goods management and connections to the global markets.
5. It will create an ecosystem around the CEZ in which productive cluster of the small and medium firm would arise and flourish.

Challenges

1. Lack of availability of land with the states along with huge acquisition and compensation costs have delayed the implementation of the project.
2. Lack of sufficient infrastructure for evacuation of cargo at major and non-major ports resulting in a poor mix of modal transportation, low penetration of coastal and inland shipping, lack of scale and deep draft at ports also lead to the poor growth.
3. Involvement of multiple agencies might lead to a fragmented approach in the development of infrastructure for promoting industrialization, trade, tourism, and transportation across the country.

Way forward

Port-led industrialization through the development of CEZ expected to provide impetus to the “Make in India” initiative of the Government of India that will aid in the creation of jobs in India. However, speedier clearances without concern for the environment will be detrimental for the sustainable development as well. Hence proper environment impact assessment is needed before the actual implementation

Practice question

Critically evaluate the features, significance, and challenges associated with the development of Coastal Economic Zone in India.

Why in News?

The Parliament has amended the Child Labour (Prohibition and Regulation) Act, 1986 and passed Child Labour (Prohibition and Regulation) Amendment Bill, 2016 in July 2016.

What is Child Labour?

The term “child labour” is often defined as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development (International Labour Organization).

Key Statistics of Child Labour in India

1. 1 in every 11 children in India works to earn a living, according to statistics by Action Aid India
2. There are five states which are India’s biggest child labour employers-Bihar, Uttar Pradesh, Rajasthan, Madhya Pradesh and Maharashtra, as per data given out by save children NGO.
3. National capital Delhi is responsible for a share of 1 million child labour alone.
4. A recent analysis by CRY of census data in the country shows that the overall decrease in child labour is only 2.2 per cent year on year, over the last 10 years.
5. Also it has revealed that child labour has grown by more than 50 percent in urban areas.
6. There are 33 million child labourers between the ages of 5 – 18 years in INDIA as per census 2011 data and 10.13 million between the ages of 5- 14 years.
7. Considering that there are 444 million children India under the age of 18, they form 37 percent of the total population in the country.

Current Scenario of Child Labour

1. India is one of the leading countries in Asia has 33 million children employed in various forms of child labour.
2. India yet to ratify the Minimum age convention 1973 (No 138) of the International labour organization (ILO) that lays down ground rules for employment of minors across the globe.
3. According to a Live mint report ,the government last year amended child labour laws to allow children below 14 to work in family businesses and the entertainment industry (excluding circuses ) in order to create” a balance between the need for education for a child and reality of the socio-economic condition and social fabric of the country”.
4. The amendment modified the definition of adolescents- to children between 14 and 18 years of age and barred them from working in any hazardous industries only.

Constitutional Safeguards for Children 

The constitution provides various safeguards for children which are as follows:

1. Article 15(3) gives the power to the State to enact laws to protect children.
2. Article 21A provides free and compulsory education to all children between the ages of 6 and 14.
3. Article 24 prohibits employment of children under the age of 14 years in hazardous industries.
4. Article 39 (e) provides that the State shall direct its policy to ensure that the tender age of children is not abused.
5. Article 45 provides that State shall endeavour to provide early childhood care and education to children below the age of six years.
6. Article 47 provides that it is the duty of the State to raise the level of nutrition and standard of living and to improve public health.

Salient features of the Child Labour (Prohibition and Regulation) Amendment Act Bill

1. The Bill proposes a ban on employment of children below 14 years in all occupations except in family business and in entertainment industry provided education of the child does not get hampered.
2. It prohibits employment of adolescents (a person between 14 and 18 years of age) in hazardous occupations as specified (mines, inflammable substance and hazardous processes).
3. The central government may add or omit any hazardous occupation from the list included in the Bill.
4. It enhances the punishment for employing any child in an occupation and for employing an adolescent in a hazardous occupation. For the first time, the fine has been increased from 20000 to 50000 Rs and 6 months to 2 years imprisonment. For repeat offenders, the offence is cognizable and proposes a punishment of 1-3 years.
5. The Bill proposes relaxed penal provisions for parents. In case of parents being repeat offenders, it proposes a fine of 10000 rupees.
6. It empowers the government to make periodic inspection of places at which employment of children and adolescents are prohibited.
7. It also sets up a Child and Adolescent Labour Rehabilitation Fund to be set up under the Act for rehabilitation of children and adolescents.

Arguments in Favour

1. The amendments intend to preserve Indian art and craft by enabling parents with traditional skills to pass them on to their children.
2. The setting up of a Child and Adolescent Labour Rehabilitation Fund will help to improve the condition of the children and sponsor education for them.
3. It prescribes a more stringent penalty for Violators and high term of jail and fine with non-bailable charges.
4. It gives more autonomy to various institutions involved in child labour protection rehabilitation and redevelopment y empowering the government to make periodic inspection of places.

Arguments in Against

• Reversing the gains

In 1986, the Child Labour (Prohibition and Regulation) Act had after much discussion and expansion included 83 occupations. The new amendment reverses the gain by bringing down the list of hazardous occupations for children to include just mining, inflammable substances and explosives.

• Open discretion of government authorities

Further, the occupations listed as hazardous can be removed, according to Section 4 — not by Parliament but by government authorities at their own discretion. This leaves it to open discretion.

• Promoting family labour

It allows child labour in “family or family enterprises” or allows the child to work in the entertainment industry. Most of the child labour is in work with family members. Not defining the nature and time limitation will act as a main obstruction to their educational endeavour.

• Non-uniform implementation

List of hazardous factories can be amended by the state government, thus, leading to the non-uniform implementation of this act.

• Making lawful what was unlawful earlier

It allows that the children may work after school hours or during vacations, thus, actually making lawful a large part of child work that was earlier unlawful.

• Roughly defined purpose of Fund

Funding from the child rehabilitation fund is not directly linked to education and development rather it aims towards these goals without any mentioned method thus not giving any specific list of objectives.

Way forward

1. The Constitution of India mandates the state to secure a healthy childhood to all its children by virtue of Article 21-A, 24, 39(e), (f), 41 and 45.
2. Despite this, slavery is the keynote of industrial life in India and child labour prevails in one or the other nook and corner.
3. Even after the new Amendment Act, the blueprint for tackling child labour has multifarious lacunas and is not conducive in providing the fullest extent of justice to its children. The complete abolishment of child labour is still a distant dream.
4. It is high time to realize that child labour is not just a social issue but a moral one. The cardinal right to free and compulsory education to children is a fundamental right and child labour is antagonistic to this basic right of a child.

Practice Question

Critically examine the Key features of the Child Labour (Prohibition and Regulation) Amendment Act?