Delhi HC’s Ruling on DU Photocopy Case Is a Huge Step Forward for Access to Education in India (by Rahul Bajaj, IDIA Trust)

The Delhi High Court recently rejected the demand of publishers’ to ban coursepacks on the grounds of violation of copyright, thus making educational content more accessible and affordable for students.

The Delhi High Court’s recent ruling, sanctioning the preparation and dissemination of coursepacks as a substitute for expensive textbooks, shows how the law can act as a force for good, not just in theory, but also in practice. The Court’s verdict is likely to play an instrumental role in making educational material more accessible and affordable for students, many of whom are unable to utilize such material at present because of its prohibitive cost.

This verdict breathes meaning and life into the right to education, which was recognized as a constitutionally guaranteed fundamental right by the Indian Parliament in 2002.

In August 2012, three of the biggest players in the Indian publishing industry, Oxford University Press, Cambridge University Press, and Taylor and Francis, instituted a lawsuit against Rameshwari Photocopy Services and Delhi University for preparing and disseminating coursepacks, which are miniature versions of textbooks that contain key excerpts from such books. The publishers argued that this amounted to copyright infringement. In October 2012, the Court passed an interim order in the publishers’ favour, restraining Rameshwari from making or selling coursepacks until the final determination of the interim application.

​The grant of this temporary relief by the Court practically sounded the death knell for students from poorer communities at Delhi University, as it had the practical impact of depriving them of access to their principal means of absorbing academic content in an affordable fashion, for almost 4 years.

The move of the publishers came in for heavy criticism, with more than 300 authors and academicians urging them to withdraw the lawsuit.

The amount of public attention that this issue received is best evidenced by the fact that Nobel laureate, Amartya Sen also wrote a letter to the publishers, urging them:

“Not to draw on the full force of the law to make these ‘coursepacks’ impossible to generate and use,” because “the cause of education must surely be a very important one.”

At the outset, the Court noted that it is a well settled principle that copyright is merely a statutory right, in contradistinction to a natural right, meaning that no copyright owner can claim to have the unfettered and exclusive right to exploit her creations. This being the case, the Court held, the publishers could not hold the photocopier or the university liable, unless they were able to demonstrate how the latter’s conduct amounted to copyright infringement within the meaning of the Copyright Act, 1957.

The determination of the case turned on what is commonly referred to as the ‘educational exception.’ The exception, forming a part of Section 52 of the Act which delineates a list of activities that do not constitute copyright infringement, shields from liability the reproduction of any work by a teacher or a pupil, among other things, in the course of instruction. To this end, the publishers argued that the phrase ‘in the course of instruction’ would only include the reproduction of copyrighted content for lectures and tutorials, and would not include the photocopying of the entire syllabus in the form of coursepacks.

Rejecting the argument of the publishers, the Court held that the exception does not merely cover the imparting of education in a traditional classroom setting, but must be construed in a capacious manner, including within its fold, all the steps involved in the absorption of knowledge at the college level. Further, since the exception envisages students taking notes from textbooks for educational purposes, the Court held, its intention cannot be frustrated by construing it in such a way as to make it inapplicable to the photocopying of textbooks which is nothing but a modern-day substitute for the arduous task of manual note taking.

On this basis, the Court came to the conclusion that the University or the photocopier could not be held liable for copyright infringement.

Image Source: SpicyIPWhile at first glance, it may appear that this case has little relevance for the general public, in light of the fact that it turns on a technical construction of a statutory exception, this could not be farther from the truth. At its root, this judgment recognizes, as the Court eloquently notes, the principle that:

“[c]opyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations… Copyright is intended to increase, and not to impede, the harvest of knowledge.”

For the cynics who think that intellectual property law is increasingly being used as a tool to promote commercial interests and erect barriers to access to transformative creations for those who would benefit from them the most, this judgment offers an alternative vision.

It offers a vision of a society in which intellectual property law, creatively and purposively interpreted, can bridge gaps as opposed to widening them; can generate opportunities, as opposed to impediments, for intellectual growth and progress; and can, in the final analysis, make our society more, and not less, equal.

The judgment recognizes the principle that education is a public good, which must be made available to all on equal terms. By giving precedence to the social goals that education helps promote, as opposed to the narrow interests of authors and publishers, the Delhi High Court has made it clear that India’s copyright law will be interpreted in a manner consonant with its sui generis needs.

If faithfully implemented, this judgment has the potential of reversing the trend of more than 80 million children dropping out of schools and colleges before completing their education.

Freedom of Speech and Expression of Film Makers/Artists and Censorship (by Kush Kalra, lawyer)

“I may not agree with what you say, but will defend to the death, your right to say it”, said the author Voltaire (Attributed to Voltaire by S.G. Tallentyre in “The Friends of Voltaire”, 1907).

India has the benefit of one of the most modern and liberal Constitutions which seeks to safeguard its rich and diverse heritage while also fostering the growth of a democratic culture.

One of the most cherished rights under our Constitution is to speak one’s mind and write what one thinks. No doubt, this is subject to reasonable restrictions, but then the ambit of what one can do is wide. The very heart of democracy is the freedom to think and act differently. Implicit therein is a freedom to react and respond to same situations differently and distinctly. As the Indian Supreme Court once pithily put it, “in a democracy, it is not necessary that everyone should sing the same song.”

While no one would cavil at the proposition that the freedom of speech and expression is a cherished constitutional value in theory, India cannot hope that its commitment to uphold this value will carry much meaning if it is not able to stay true to this commitment when the speech in question is offensive, unpalatable and disturbing.

Nowhere has this commitment been put to the test more than it has in the manner in which regulatory authorities deal with the phenomenon of the emergence of a new breed of actors and producers who are not afraid of expressing unconventional views and opinions.

Believing that their predecessors sold dreams and seldom dared to portray reality, the filmmakers of today want to tap into the transformative potential of the film to shape people’s opinions, break deeply entrenched stereotypes and start difficult conversations.

We cannot expect that they will present current and live issues and problems in the same manner as the generation which came before them. They want to chart a course of their own, uninfluenced by earlier works. A certain degree of freshness, a change of attitude and a different way of looking at the same medium by itself and without anything more should not result in bringing about disruptions or creating hurdles and obstacles in their way. To stop them abruptly and by extreme responses will not only discourage them but may kill creativity. If they are allowed to go ahead in their own way but with timely cautioning and warning, they may respond positively and take the same in proper spirit. However, to interfere with their work again and again, mindlessly will only invite extreme reactions. That would not be conducive to the growth of the medium. Eventually, it must march with the times and compete with the best of the works made locally and globally. That apart, the appeal of the social media coupled with the advent of television which operates on a multi channel basis 24X7 resulting in large scale production and distribution of teleserials, teledramas, telefilms presents an enormous challenge which is threatening the existence or efficacy of a celluloid film. A full length feature film needs to hold the audience to the seat for certain hours. Its story line, theme, script and the overall content should have that capacity and potency. Else, the audience interest will wane and vanish. Hence, filmmakers, producers, directors of today have changed their strategies.

The filmmakers of today are direct, forthright, attacking, aggressive and even brutal in their presentation. Just because they are not soft, subtle in their approach, censor board cannot be unduly strict and harsh. Holding up clearance certificates by censor board or suggesting cuts and excisions in virtually every alternate scene would   be counter productive. Not for nothing did finance minister Arun Jaitley recentlystate that he was “not satisfied” with the existing system of film certification.

Therefore, in view of the above, the need to protect freedom of speech and expression of filmmakers/artists assumes added importance.

It is also high time the Government constituted an expert body to deal with situations arising from such conflicts of views, as opposed to following an ad hoc, unprincipled and reactionary approach. At the same time, it is imperative that such a body be manned by experts from the film industry and different spheres of society so as to ensure maximum objectivity and independence.

In such matters of art and culture, the issue cannot be left to the police authorities or the local administration alone, especially when there is a spurt in such conflicts. The State has to ensure proper police protection where such authors and artistes come under attack from a section of the society. Regular programmes need to be conducted for sensitizing officials over matters dealing with such conflicts of artistic and literary appreciation.

In conclusion, censorship authorities in India would do well to remember J.S. Mill’s admonition: “The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

Marriage is Sacred, Marital Rape is (not) an Offence! (by Prerana Saraf, lawyer)

Marital Rape:
‘Laws on marital rape cannot be “suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.”

Remember when Women and Child Development Minister, Maneka Gandhi had written this to the Rajya Sabha when asked about Centre’s plans to criminalise marital rape? She had then faced the wrath of many human rights activists. However, she later did a complete U-turn, saying that the Centre was contemplating criminalizing marital rape.

Marital rape is non-consensual sex where the perpetrator is the victim’s spouse. Typically, this should be considered as one of the gravest forms of crime as the victim  is married to an abuser who can take advantage of the relationship and sexually abuse her repeatedly.

Yet, successive governments have been indifferent towards marital rape and the need to criminalise it. This despite a number of progressive recommendations from expert bodies created to study the subject, most notably the Justice J.S Verma Committee, which was set up in the aftermath of the Delhi Gang Rape Case, 2012. The Committee delineated three points:

That marriage or relationship between the accused and the victim (parties):
(a) cannot be used as a defence to the crime of rape or sexual violation.
(b) is not relevant in an inquiry into whether the victim consented to the sexual activity.
(c)  cannot be a factor that justifies mitigated sentences for the offense of rape.

Yet, India has consistently turned a blind eye towards the evils of marital rape.

The Law on Marital Rape at Present:
The Indian Penal Code, the principal legal instrument setting forth the key criminal offences in India, penalises a person for rape when he has sexual intercourse with a woman less than 16 years of age, with or without her consent. However, sexual intercourse by a man with his own wife is not rape unless the wife is under 15 years of age.

Though the legal age to marry for boys is 21 years and 18 years for girls, if a girl marries before attaining the age of 18 years and is sexually abused by her husband, then it is not considered to be rape as she is not under 15 years of age

This anomaly, absurd though it doubtless is, is emblematic of the state of confusion and internal inconsistency that has come to characterize Indian rape law.

Pam Rajput Committee’s Report on Marital Rape:
Pam Rajput Committee in its report named Status of Women in India,’ has come down heavily on the legislature for failing to recognize marital rape as an offense. It also criticized the Criminal Law (Amendment) Act, 2013 for ignoring J.S.Verma Committee’s Report on recognising marital rape as an offense irrespective of the age of the woman.

Protection of Children from Sexual Offences (POCSO) Act, 2012 on Marital Rape:
One Act that recognises marital rape (at least till the age of 18 years), is POCSO Act. The Act penalises sexual intercourse with a person under 18 years of age irrespective of their gender, age, marital status or even consent.

Criticism Against POCSO:
POCSO does not recognise consensual sex with a person below 18 years of age. Many experts have criticized this new age of consent as too high. It is in total disregard to the social reality as the law intends to assume that all adolescents in the country are sexually inactive and in any case of an adolescent sexual activity, the law would disregard the consent given by an individual.

This would lead to draconian and regressive effects. Moreover, the Act states that where the victim is below the age of 16, then it would be presumed that the accused has committed the offence.

A few instances of consensual sex involving individuals below 18 years:  
(i)  A 15-year-old girl eloped and married a 22-year-old man. Her mother filed a case of kidnap and sexual assault against the man. The girl admitted in the court that she had willingly gone with him and had sexual intercourse. In such a case, under POCSO, the man would be held guilty, as it does not recognise consensual sex with anyone below the age of 18 years.

However, the judge held that strict interpretation of the provisions of POCSO would mean that ‘an individual below 18 years of age has no choice over his/her body and cannot be allowed to have pleasures associated with one’s body.’ Hence, the man was acquitted.

(ii) In another instance, a pregnant girl aged 14 years admitted before the court that the only reason she and her mother filed a case against the man she had sexual intercourse is because he refused to marry her. The man was acquitted when he offered to marry her and provided shelter to her mother.

Criminalising Marital Rape Suits in All Contexts, Whether Indian or Not:
Extant laws in India have contrasting provisions on marital rape, thereby giving rise to unfettered discretion in the hands of judges to interpret the law in whatever way they deem fit. This has resulted in inconsistent verdicts being delivered by different judges while interpreting the self-same provisions – an ominous sign for a legal system that is founded upon the ideals of certainty and predictability.

study conducted by International Centre for Women and United Nations Population Fund reveals that a vast majority of sexual violence faced by women was within marriage itself. Only 2.3% of the rape cases were committed by other men.

This study should have been more than enough to meet the government’s requirement of data showing enough number of marital rape cases in India. It should be noted that the survey was only conducted in a few states, the number would have significantly gone up had it covered all states.

Therefore, it is high time that India enacted a law that specifically covered marital rape as an offense. Marriage does not mean forgoing one’s dignity. Any law which presumes this to be the case should have no place in the statute book in a liberal and progressive democracy.

The Indian Start-Up Ecosystem: What Lies Ahead (by Deeksha Malik, National Law Institute University)

“I see start-ups, technology and innovation as exciting and effective instruments for India’s transformation, and for creating jobs for our youth.”
– Shri Narendra Modi, Hon’ble Prime Minister of India

One can say without a doubt that India has become a “start-up nation”. With an exponential rise in the number of start-ups, it is ranked third (after USA and UK) among the global start-up ecosystems. From booking a cab or an affordable hotel online and renting houses to purchasing groceries using mobile apps and facilitating banking transactions through partnership with banks, technology-driven start-ups are everywhere. It is estimated that India’s start-up sector has received a total funding of nearly $5 billion by the end of 2015. Some of the factors which have contributed significantly towards this massive growth in the start-up space are an increasing number of venture capitalists, private equity firms, angel investors, incubators and support networks, a large population and a high mobile penetration, among other things. In a recent report published by NASSCOM in association with Zinnov, this scenario is driving the Indian economy towards momentous growth; global investors are bringing FDI through investments in young innovative companies and new employment opportunities are being generated every day. Start-ups are now able to hire exceptional talent from the industry and offer them fairly good compensation and flexible work environment. Women entrepreneurs, too, are taking advantage of the innovation economy.

2016 has been the year of strategic and synergistic acquisitions by larger start-ups such as Flipkart and Snapdeal, and this is indicative of the vibrancy in the ecosystem. The money is well spent as the acquiring start-up stands to gain from the technology it otherwise would have to work towards. Some acquisitions have helped start-ups enter newer areas as in the case of online fashion marketplace Voonik Technologies. Its acquisition of Zohraa, Styl and Picksilk has enabled it to set foot in the ecommerce segment, and the acquired start-ups have gained from the transaction as they were not able to scale up. There are yet other cases where buyouts have helped the acquirer gain employee skills and expertise. In all, the deals with a total size of $534.9 million have generated entities that can cater to a larger number of consumers and may also deal in the global marketplace.

While we would want to look at the bright side, we must be cognizant of and responsive to the various challenges ahead. Some of the hurdles include lack of proper infrastructure as well as complexity of the market coupled with stiff competition. While there are several funding options available, many start-ups need the requisite mentoring to avail of proper finance. There have been some great business ideas which failed at the execution stage. India also faces some cultural challenges. Very few businessmen are prepared to take risks, something that is crucial to enter in the start-up sector. Moreover, India ranks 130 out of 189 countries in the Ease of Doing Business index, and Indian businesses still face issues as regards access to credit and ease of paying taxes. The said challenges have been underscored by other authors as well.

Some stakeholders of the start-up ecosystem have voiced their concerns over the fact that most of the top 200 start-ups are headquartered outside India so as to enjoy greater autonomy in operating their businesses. In this regard, think-tank Indian Software Product Industry Roundtable (iSPIRT) has campaigned for the Stay-in-India initiative and has argued that a number of changes at different levels such as faster incorporation and liquidation process, favourable IP-tax regime and relaxed external commercial borrowing norms must be brought about in order that start-ups flourish in a conducive environment.  The government is responding to some of these concerns. On January 16, 2016, the government kicked off the much-awaited Start-up India Action Plan, wherein start-up on fulfilling certain eligibility conditions shall be entitled to benefits such as fast-track examination of patent applications, tax exemption on capital gains and funding support. More recently, the Ministry of Corporate Affairs released a notification facilitating easier access of funds by start-ups via the convertible note route by introducing several relaxations therein. On its part, the Reserve Bank of India too has resolved to ease regulations to enable start-ups raise foreign funding.

While the several policy initiatives are sending positive signals to young aspiring entrepreneurs, India must look at the entire scenario from a broader perspective. For instance, our education system, which focuses on rote learning rather than creative and analytical thinking, requires a complete revamp. The existing vocational training institutes offer outdated courses that are ill-suited to the start-up economy. India certainly cannot have a piecemeal approach towards start-up growth.

Khaki is the New Black – the Significance of the Police Force

Pooja Kurian

Third Year Law Student, Alliance School of Law, Alliance University, Bangalore.

​In our country, several social, political and economic problems, which have festered for an unduly long period, continue to manifest themselves in a variety of ways. People are demanding a significant change from the leaders, to this current abominable situation. The one important medium through which this change can be made possible, is through an honest and reliable police force. This is because their work and duty is such that it is inextricably intertwined with almost every aspect of the life of the public.

There are several determined and undetermined functionalities and responsibilities of the police force, from managing the traffic, investigating petty crimes like theft to inspecting heinous crimes like murder etc. Though sometimes these responsibilities are considered underrated by the public, the police force is needed all 365 days of the year. They have been vested with various powers to fulfill these vital responsibilities. But today, we see that the police are misusing these powers. In essence, the duty of the police is to serve the public, but off late the public has been subjected to ill-treatment and terror by the police. Instead of protecting the people, they have been terrorizing them. The resentment against the police force is growing day by day in our country.

However, there are innumerable difficulties they face while in the line of duty. This fully accounts for the sorry state of the police force of our country. ‘Police’ is a State subject as per the VIIth Schedule of the Constitution of India, but the State Governments are doing almost nothing to provide the police force with even the pre-requisites required for their day to day functioning. Firstly, around 20,000[1] police stations in our country are located in temporary buildings, sheds and tents. The police officials who are expected to protect the public do not even have the bare minimum working conditions. This immensely affects their mindsets. Most of the police officials are found lacking in dedication and honesty, which is expected of them. Secondly, the resources which they require to fulfill their duties are inadequate and insufficient. They aren’t provided with enough vehicles and fuel for it, not enough manpower is available and the arms and ammunitions provided are also obsolete. Several times, the police stations are unable to pay their telephone and electricity bills and the contingency funds, which are a pre-requisite for every police station, are allocated only to the bigger states.

It’s an inevitable fact that the police force is compelled to work for the people in power, because they are threatened and controlled by the use of such instruments  as postings, transfers, promotions etc. This severely affects the discipline and morale of the officials whereby they are forced to toe the line of their political masters rather than serve the public at large.

The police constables are at the lowest end in hierarchy. However, they constitute almost 94.6%[2] of the police force.  They are the ones who carry out the basic work. Lack of legal education has further exacerbated their situation. In fact, police constables who constitute the major chunk of the police force are the ones who work/interact at the grassroots level. They are the ones who can revolutionize policing in general. They are however deprived of any power and are under constant pressure to oblige their superiors.

The job profile of a constable has a condition that he has to be available for duty throughout the 24 hours of the day. But even after that let alone a leave, they aren’t even granted basic facilities such as clean drinking water and toilets. And, regardless of all these difficulties, they are expected to work diligently. The newly recruited constables are made to perform petty chores in the houses of their superiors which has no link to their job profiles, which in turn harms their morale. Also, meager salary, lack of proper habitation and other inhumane conditions have compelled the police force to go the wrong way.
Thus, now the system has eventually become a hollow structure. It needs to change, and should be such where the police force is empowered enough to serve and protect the people, where the rule of law is given utmost importance. This is possible through the following measures. firstly by formulating a structure where maximum complaint resolution is made possible, for this garnering the trust of the public is necessary. Secondly, providing them with better conditions which will improve their ability to operate. Thirdly, by devolution of powers amongst the lower ranks which would usher significant change thus leading to their empowerment as well. Also, more women must be employed as constables, who can then work with the women and children in their respective places of functioning. Fourthly, the police force must be insulated from the control of the politicians. Lastly fellowship, respect, compassion and understanding must be cultivated among the public for the police, which will help the latter serve the former in a more effective and fruitful way.
The need of the hour for our democracy is a modern police force which works for the people and are accountable to them, who are well-trained, well-equipped and who uphold the law at all times.

[1], (visited November, 09 2016).

[2], (visited November, 09 2016).

ED Blogging Winternship Opportunity

Want to blog and talk about things that matter to you? Harvard College US-India Initiative gives you an opportunity to intern and create smart content for Economy Decoded.

Winternship is ED’s flagship one month blogging and digital marketing internship program, aiming to provide enthusiastic learners a platform to observe and report, write and blog. Winterns can work from the comfort of their homes, wrapped in a cozy blanket with a mug of piping hot tea. The Super 30 (30 selected interns) have a shot at covering anything within the span of 10 articles over the period of one month and live the life of an ED Blogger.

Apply now if you think your wit deserves to be paid!

​Read more about it here:…/eds-blogging-digital-marketing…/


The Ongoing Backlash Of India’s Patent Law By USA Is Not Justified

The Intellectual Property Rights (IPR) grant exclusive rights to Patents, Copyrights, Trademarks, Geographical Indicators etc. to promote innovation.
Compared with several developed countries our IPRs are ‘weak’ as they do not comply with stringent US regulations. India, along with China, Russia and 8 other countries, is therefore, on priority watch list of US’ Special 301 report.

Earlier this February, the US Chamber of Commerce came out with a report that ranked India 43rd out of 45 countries in Intellectual property friendliness. In fact India has continued to languish at the bottom of the list ever since this exercise was started by the US. The people behind these reports are rich business lobby groups, led by PhRMA –the U.S. pharmaceutical lobby, looking to increase their profit margins at the expense of poor people.

                                                       The Situation Earlier

Before India joined WTO, Indian Patent law did not allow a product to be patented, only the process could be patented in case of food, drugs and other chemical substances. This was deliberately done by Indian lawmakers to protect public health as majority of patents were held by western companies who would have kept the prices high.

In those days reverse engineering to create the same drugs that western MNCs held patents to were common. Cipla was one such company, it provided generic AIDS and other drugs to the developing world at fraction of the cost thus making its use viable in poor countries. USA was meanwhile campaigning to stop India from exporting the AIDS drugs to Africa and other developing nations at a cheaper cost, a move which drew flak from the public and media.

                                                       After Joining WTO

After becoming a WTO member, Indian Patent Act was amended in 2005, to comply with TRIPS agreement which sets the minimum standard of IPR. Most notably patents for drugs were allowed with a few safeguards in place for public health in developing countries, as allowed in the agreement.

India’s IPR regime is now compliant with the Trade Related Aspects of Intellectual Property rights (TRIPS) agreement of World Trade Organisation; but the pressure from developed countries to align the IPR to the standards of developed countries is imminent.

The PhRMA (U.S. pharmaceutical lobby) and western countries still make hue and cry of the following provisios of Indian Patent Act:

  1. Section 3(d): mentions that patents would not be granted in case of only incremental changes in an existing patent.

This prevents pharmaceutical companies from ‘evergreening’ their patents i.e. extending the life of an already patented drug with a minor tinkering in its chemical composition. This is how pharma companies retain monopoly of a drug and keep its price high.

In the landmark judgement of Novartis v. Union of India – a victory of public health, Supreme Court ruled that Novartis, a Swiss pharmaceutical giant cannot patent Glivec as the drug did not exhibit enhanced efficacy compared with a pre-existing drug.

While India is one of the few countries with a law against evergreening, in US the problem is prevalent as patents are granted even for ‘new and useful improvements’ to already patented inventions.

  1. Compulsory licensing (CL) allows the government to grant manufacturing rights of a patented drug to a third party if its prices are unaffordable or in case of non-availability of drug in India.

This helps in reducing the prices of life saving drugs and increasing the availability. Under the Doha Declaration on the TRIPS Agreement Public Health, each WTO member has the right to grant CLs and the freedom to determine the grounds upon which they are granted.

While US has less number of stated conditions to grant CLs, it is ironical that US government backed by PhRMA is trying to stop India from issuing CLs when it leads the world in issuing them.

  1. Software patents are not allowed in India without an accompanying computer related invention/hardware.

This too has drawn the ire of Western Software companies. Software Patents are very complex as they are not really inventions but the amount of time and money spent on lawsuits is huge, benefitting only major players. This is demonstrated by the sheer number of disputes the US courts receive regarding software patents.

Gary Becker, a Nobel Prize winning economist has said that “Disputes over software patents are among the most common, expensive, and counterproductive. Their exclusion from the patent system would discourage some software innovations, but the saving from litigation costs over disputed patent rights would more than compensate the economy for that cost.” Indian judicial system is far from coping with it.

                     Indian or International?

In 2015 Martin Shkreli was dubbed America’s most hated man for raising an AIDS drug’s price by over 5000% after acquiring its rights. He maybe a scapegoat but is not the lone pharma boss in trying to make huge money off diseased people.

When America cannot afford American drugs, how can India- with largest number of people below poverty line? Moreover, India still lacks basic healthcare insurance. Aligning India’s IPR to that of the developed world would be a disaster especially for public health.  In this view the ongoing backlash of India’s IPR by the USA is not justified.


India’s IPR is balanced in promoting welfare of its citizens and industrial innovation, especially since 2005 amendment.

This article was originally published on ED here.

Biasedness In Judges: Does Gender Of The Judge Influence The Judgment?

Disclaimer: The following article does not intend to bring down the image of our judicial system nor does it promote contempt in any form. This is merely an opinion piece and is in no way criticising the judges, their judgments or any particular gender. This is based on my experience during court visits.

A wise old man and a wise old woman reach the same conclusion.’ Must have heard this?
If we speak about judges, do you actually believe that the judges are unprejudiced? Does the gender of the judge affect the judgment?

One cannot fan or critic ‘bias’ from a sole angle. All and sundry in this planet and the human race are biased, be it family, friends, or any person with whom you share a special bond. The disparity in outlook, perceptions and sensitivity issues towards things varies from person to person. Adding to this, it won’t be a bombshell if I say that a woman’s and a man’s viewpoint may hold opposing views.

Are judges truly immune from this angle too? Long ago, law was considered to be a man’s field. In India, it was not socially acceptable for a woman to practice law. But today women are doing wonders in this field. Today’s judiciary embodies and is represented by both men and women. However, the question to be posed here is whether the gender of the judge has any impact on the process of judging?

Are the judgments rendered by female judges affected by ‘favouritism’? Obviously, we have no method to test this or to identify this difference. Lack of this does not imply that the gender of the judge does not play a significant role in their judgments and neither does it imply that it makes a difference.

Women are deemed to be more “emotional”, “empathetic” and “involved” as compared to men. Rather, it’s a true fact. It doesn’t imply that men are more mature. It’s just that women have sensitivity issues, to which they can easily relate themselves to; specially, if the matter relates to a family issue or a crime towards women or any concern of such a kind for that affair.

It is taken as a fact that a judge will perform his/her judicial duties without any bias. But it does not necessarily mean that the judge has shed away all of his/her life experiences, just by being sworn in. This is purely not feasible. How can you anticipate someone to undergo instantaneous change in whatever he/she personally feels or believes in or has, perhaps, experienced it?

A lady judge can, in a way, be said to have the most obstinate bias of all, in that she believes that she is not biased at all. In fact, a female judge’s judgment may sometimes be seen leaning towards the more unexpected side in order to prove herself neutral.

But it is practically not achievable to not lean towards the victim side when a matter of sexual offence against a woman appears before her court. Sometimes you will find them to be so much traumatised with the issue, that they cannot be unbiased. They simply cannot help relating to the victim, so much that the right of the other party to be equally heard without any prejudice is trampled over.

During the internships when I visited courtrooms, I could clearly see how a lady judge gets persuaded by the female victim and hardly bothers to listen to the other party. It is not only the case with a single judge, or a single time, because this happens most of the times.

And some of them are so clearly biased that you can basically read their minds and know the outcome of the case even before it is rendered. They think they already know these kinds of people and hardly bother listening to them.

While male judges are seen to be sensitive and concerned towards a female accused criminal and grant them privileges, lady judges are strict and unmoved by the accused woman’s plight. (Read: A woman is a woman’s worst enemy) This at times is a good thing and at times a very very wrong thing to do.

When a law student, during his/her internships, witnesses such biasedness, you can’t even imagine what kind of an image will be formed in his mind regarding our judicial system, which he/she so far considered to be free from bias.

Every person looks up to the judge with faith and a ray of hope. Is justice so scrawny that it is influenced by the emotions of a person? ‘Uninfluenced justice’ is not that easy to attain.

Anyway, these issues of bias are not that big a scam. It is very less in number, but yes it exists.

This article was originally published on ED here

Single Men Cannot Adopt, Especially Not A Girl Child: Know Why?

India is home to about 20 million orphaned children and a nearly equal number of infertile couples. And yet, as per the Central Adoption Resource Authority’s (CARA) records, there were only 3011 in-country adoptions in the year 2015-16.

Twenty million and three thousand – there is a sizeable chasm between the two figures. So, where are we going wrong?


Of course, a lot has changed over the years, but, unfortunately, a lot has also remained the same.
It is also worth noting that out of the 20 million or so orphaned children, at least 50,000 are adoptable, yet only about 1600 are legally “up for adoption”.

Apart from all this, there is just a general lack of awareness about child adoption in India. While the detailed process can be found on this website, below is a list that I have curated of little-known, but very important, facts about adopting a child in India.

1. Only a fraction of orphaned children are legally adoptable.


Children (below 6 years) whose care-takers are unable to care for them can be relinquished at an adoption agency after following the required procedure. Likewise, a child found abandoned and whose caretakers cannot be traced, if eligible, can be declared ‘legally free for adoption’ by the Child Welfare Committee. A court-committed child can come into adoption through the Juvenile Welfare Board.

          2. Your registered religion decides which legislations regarding adoption will be applicable to you.

For Indian citizens who are Hindus, Jains, Sikhs, or Buddhists the adoption is under the Hindu Adoption and Maintenance Act of 1956. Under this act, a single parent or married couple are not permitted to adopt more than one child of the same sex.

Foreign citizens, NRIs, and those Indian nationals who are Muslims, Parsis, Christians or Jews are subject to the Guardian and Wards Act of 1890. Under this act, the adoptive parent is only the guardian of the child until she reaches 18 years of age.


There is also a Juvenile Justice Act of 2000, a part of which deals with adoption of children by non-Hindu parents. However, this act is applicable only to children who have been abandoned or abused and not to those children who have been voluntarily put up for adoption.

          3. Prospective Adoptive Parents (PAPs) are allowed to give preferences as to what kind of child they wish to adopt, as crass as that sounds.



They may ask for a child of a certain age, gender (if it is the first child in the family), skin colour, religion, special features, health condition, etc. However, greater the specifications, more difficult it is to find a child who conforms to them.

          4. Single men cannot adopt, especially not a girl child.

Live-in couples and couples who have been married for less than two years are also not eligible for adopting a child. While the former is a rule meant to avoid cases of sexual abuse of female children, the latter is to make sure there is a minimal chance of the couple splitting up after adoption.


Many people oppose this, insisting that there should be an evaluation on a case-by-case basis rather than having a blanket rule which decreases the probability of an orphaned child getting a home.

          5. You can now adopt children online.

As part of the new rules, Maneka Gandhi’s ministry has brought all adoptive parents and children together in an online database managed by the CARA.

An adoptive parent can choose a child from any part of the country without getting stuck with one adoption agency. It is a transparent system, with parents given a seniority number instead of being put on indefinite wait.


We need to normalize the idea that adopting kids is a valid course of action even for parents who could conceive a child themselves. To see it as merely an inferior backup option for infertile couples is extremely regressive.

The only way to normalize something which goes against society’s most basic conventions is to spread awareness about it.

If people understand the process and read success stories, they’ll be more inclined to accept the concept. And that’s what we are striving towards.

So, if you are an adoptive parent, or know someone who is one, do share your story with us in the comments below!

This article was originally published on ED here.

Despite Being Brown, Indians Indulge In Color Bias Towards Black People. Are We Even Sorry About It?

In 2013, a Nigerian national was killed by a mob in Goa. It was followed by an Indian minister calling Nigerians a “cancer”.

In 2016, A Tanzanian student living in Bangalore was attacked by a mob and forced to parade naked in front of the crowd.

To talk of more recent incidents, a 24-year-old girl from Uganda, in the very same city, was murdered by an Indian following an alleged “dispute over payment for sexual favors”. The girl was a student there. This happened on 2nd February 2017


Indians certainly are extremely biased against people with dark skin and here I speak as an Indian who has observed this in a variety of forms.

The era and ideology of British colonialism are generally identified as the source of color bias in our country. If we are to reckon with the history of subordination India has had, it was not just limited to the period of British colonization.

The color bias is way more deep-rooted in our minds than we can imagine.

Even before any invasion took place in India, the society was divided into those who could “afford to be indoors” and the others who had to toil in the sun.

The Aryans that came were fair-skinned Eur-Asians who considered themselves superior to indigenous Indians in all aspects; as they carried out all the intellectual work and restricted others out of it, it furthered the color-based class divide in the subcontinent.

The Mughals only played along with these lines. Certainly, during the colonial period, the color bias was highly propagated by the British and most visible in the purview of history.

It colonized the Indians to hold the light-colored British on a higher pedestal and worked to stir up any existing prejudices among the colonized for their fellow countrymen.

Skin color was used as a tool for discrimination by the colonial forces in African countries as well. Though there, it was used by the whites to keep others out of power. Here, it was also equally practiced by the locals against other Indians.

In India, color bias doesn’t translate so directly into superiority bias; it is charged with an interplay of national, religious, caste and class identities to a great extent.

Due to these interwoven factors, in India, a dark-skinned Indian might not face discrimination from her fellows while an Englishman visiting the country might encounter expressions of contempt from many.

For the Negro community here, it’s a double disadvantage because of the prevalent color bias as well as the way it is propagated through their description in pop culture references, be it via any sort of narrative in any given media.

Pick up any mainstream action movie of Bollywood, the villain’s goons are always the burly Afro-Americans; not only this, the melanin content is decisive of the degree of threat – the darker being the more deadly.

Take the example of Akshay Kumar starrer “Mr. And Mrs. Khiladi” and its climax scene and you’ll know what I’m talking about.


Though one wouldn’t even advocate the possibility of that figure being the hero of the story, the same black burly man is never even the mastermind against the hero; all he can be a mindless juggernaut or a mere gun-for-hire.

There have been numerous incidents in India where people of this community—students, corporate executives, and delegates—have been suspected to be drug dealers and targeted, arrested without any tangible proof.

In August 2014, Aam Aadmi Party leader Somnath Bharti purported a raid on some African residents. In his defense, he said that he had received complaints of drugs and prostitution racket in that area.

Apparently, no one told this well-wisher and the people who came to him with their ‘complaints’ that we do have a functional police force in our country!

This color bias is on various different levels in our country, as it has been towards us throughout our history. Though interestingly enough, a majority of Indian kids studying in the US end up befriending Afro-Americans after being bullied by white kids.


Campaigns against fairness cream brands are coming up and being actively promoted nowadays; the color bias against fellow countrymen, wherever it is, is taking up the most subtle forms.
Though in the same country, hate crimes against the African community never make headlines, no matter how morbid they are.

The protests and campaigns that the community holds against the hate are far from being acknowledged.

It seems to me that we are still slaves of the mindset endowed by centuries of slavery; we don’t seem to be making any efforts to free ourselves.

This article was originally published on ED here.