Little Fingers, Tiny Toes (#2)

Recently, I came across a Tweet that unsettled me. I live in a country where child marriage had been the norm for centuries. Even after its abolishment, the practice is still carried out in a lot of cities. Hence, the enforcement of the Protection of Children from Sexual Offences Act, 2012, came as quite a welcome relief. However, its effect has been significantly curtailed by a major legislative blunder that could very easily have been foreseen. This is what that tweet had pointed out. This is what I am going to be addressing today. Why? Because can anyone actually even begin to question why children need to be protected from any harm at all costs?

I will try to explain the situation in the simplest possible terms, however, being a lawyer I might get slightly technical at places. Please bear with me, I assure you it will all make sense if you continue reading. I actually implore you to read because the importance of this topic of discussion cannot possibly be overstated.

So, here it goes –

This Act was passed in 2012. To make access to legal recourse possible to all victims, this particular legislation has been kept free from the shackles of the Statute of Limitation. A limitation, for lack of a better illustration, is like a warranty period of sorts. If you are aggrieved by a particular action of another, you are required to file a complaint about it within the prescribed time for doing so, i.e., within the limitation period. Beyond this time period, the doors of legal recourse will be forever shut for you with regard to that particular action.

Now, do not fret. I assure you such a limitation makes sense at most times in order to prevent malicious and frivolous complaints from being filed. Thus, in cases of extreme gravity, like the one under discussion today, such prescription is done away. This means that a victim of childhood sexual abuse can file a complaint about the offence at any given point of time in his life and he shall not be denied access to justice. Makes sense, right? After all, the very nature of the offence is such that immediate filing of complaint about it is very near impossible since the victims are small children who might not even know what they were being subjected to.

Here’s the catch!

Our esteemed legislators, yes, the very members who we’ve chosen and elected to be our representatives, forgot to provide a retrospective effect to the Act. This means, for any sexual offence perpetrated against a child before the passing of the Act, i.e., before 2012, no complaint can be filed under the provisions for this Act.

So, if any one has suffered childhood sexual abuse for a period as early as just about 5 years ago, our legislation has only one thing to say – tough luck, kid!

Considering the backdrop of such offences, this lack in legislative foresight becomes even graver. It cannot be forgotten that majority of sexual abuse against children are perpetrated by relatives or close friends of the family. They are, essentially, the people that a child trusts implicitly without any question. Hence, the child would not realize what was happening or even why. He or she might get accustomed to it and think that it was something normal since they do not know better. Or, even worse, he or she might understand what was happening, but may not be able to speak out to, say his mom, about why his Uncle visits his bed at night. Now consider this situation in light of the fact that children are acutely aware that anything they say to an adult will never be taken seriously. Hence, they will not speak out.

It might take years before a child realizes, understands and gathers the courage to disclose what was done to him. How can we, in good conscience, or in any sort of conscience, tell these victims that despite everything, they will still not get justice? That maybe if they’d been born later and had this done to them later, they would have had a chance?

At what level is any of this right?

I thought about this a lot. And I thought hard. Then I saw a small sliver of hope. I remembered that the Indian Penal Code, at least for the purposes of all offences defined therein, considers a female of any age to fall under the definition of ‘woman’. So we can at least still get justice for a girl child? Well, I thought wrong.

The definition of Rape got its present, expanded and inclusive definition by way of amendments made in 2013, in the aftermath of the Nirbhaya Gang Rape, an incident that shook the entire nation. But hey! Guess what? Yes! They forgot to grant a retrospective effect in this case too.

So, if you’ve been raped in a way that is currently defined as rape (and always should have been, because let’s face it, how difficult is it to understand?) before 2013, then ladies and little girls, I am very sorry to say our country’s legislation has failed you.

If you are an adult, looking back at a dark crime in your childhood, I am so extremely sorry. The Legislators have washed their hands off of your pain and trouble. They shalt not Meddle with it at all, it’s only your problem, as far as they’re concerned.

The crux of the matter is, if these complaints could have been filed and reached the Courts, they would have faced the question of “why the delay?” which may or may not have been explained satisfactorily by the victim. However, as the legal situation stands today, they will not even be allowed to be registered as a complaint in the first place.

Absurd? Yes.

End of story? I wish.

This was the legislation and the legislators. Let me now tell you about the judiciary.

I still remember how, in five years of law school, there was this one lecture in criminal law that sent my crying back to the hostel. Our Professor had discussed a case wherein a man had sexually abused a child. A man. Sexually abused. A child. A SEVEN AND A HALF MONTHS OLD CHILD. He would have succeeded in actually raping her if the child’s mother had not entered the room at the end moment. A case for outraging the modesty of a woman was brought against him.

As per the law, this offence is defined as the use of criminal force to a woman with the intention of outraging her modesty. While the first two parts of this definition were a matter of record and not disputable, the High Court decided to interpret what outraging the modesty of a woman would mean.

Two out of three judges forgot all about the “intention” part and. Let me tell you, the main thing that actually differentiates a criminal act from a non-criminal act is “intention” known as mens rea, which can be translated to mean ‘a guilty mind’. Yet, the two judges very conveniently forgot about the intention of a man that forced himself on a child. They propounded that “modesty is writ large on a woman’s body”. Hence, they reasoned that a woman’s modesty can be outraged only when she felt it being outraged. Her reaction is what would make the offence and not the action or intention of the perpetrator. So, since the child was of too tender an age and was physically incapable of understanding that her modesty was being outraged, ergo, it wasn’t outraged. Here, I would like to tell you that that man managed to rupture they child’s hymen and inflicted a gash 3/4th of an inch long in her vagina.

Yet, the judges did not find the offence to be made out. In doing so, the judges, effectively, clubbed all female children, mentally disabled women, intoxicated or inebriated woman and even drugged women into a category where their modesty could not be outraged because they would not be able to feel it happening or understand it to be happening to them.

Are you sufficiently outraged by now?

I know I have been since that day. I am even more now.

Thankfully, the Hon’ble Supreme Court overruled this highly erroneous decision. Yet, there may have been thousands of similar cases that may not have reached the Supreme Court.

So, this is the face of the legislation and the judiciary when it comes to the question of justice for our children and for our women. I could quote many more cases, but that list would be endless. Yes, in some cases, justice indeed has prevailed, but they form only a minuscule fraction.

So today, I implore you to take care of children. All children around you. I know parents need not be told this, yet there’s always something more that you can do to protect your children.

Imagine the plight of that mother who walked into her child’s room to find a man committing such a heinous act. Imagine what she must have gone through. Imagine the pain of that little, little, child. Imagine how she must have grown up in this society which might forget a criminal but will never let a victim forget what happened to her. She would have been labelled as impure, broken, damaged and shunned for something she did not even remember. They would never let her forget. They would never let her live. The would, in all probability, shun her.

So, yes, I implore you to protect your children better. Keep a keener lookout for any sudden behavioural changes in your child. When giving them a bath, tell them how to clean themselves, refuse to touch their private parts, gently remind them everyday that no one except for them are supposed to touch them there. Make your children better prepared to identify what’s the right kind of touch and what isn’t.

Just, protect them, will you?

I apologize for the long rant today, but I hope you would agree with me that this had to be done.

To read my previous post against child labour, read Little Fingers, Tiny Toes.

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The CCI Penalizes Hyundai Motors on the Basis of Relevant Turnover for having indulged in Resale Price Maintenance

Hello everyone!
Keeping in sync with the new direction of this blog as explained earlier today, I have created a new site for all things related to law. It’s called Law and Little Things. It’s objective is to demystify complex legal advancements for the layman. After all, law shouldn’t have to be Latin and Greek considering how much it governs our life, right?
Please go and follow the site if it piques your interest. I’m sharing the latest offering from there hereinbelow.

Law and Little Things

On 15th June, 2017, the Competition Commission of India (“CCI”) found Hyundai Motors Industries Limited (India) (“HMIL”) to be guilty of indulging in Resale Price Maintenance (RPM) having an appreciable adverse effect on market competition. The Final Order passed under Section 27 of the Competition Act, 2002 (the “Act”) is of significance by virtue of being the first order passed in the wake of the recent decision of the Supreme Court (“SC”) in which CCI’s penalizing power was considerably curtailed. The SC’s judgment in the case of Excel Corp. Care vs. The Competition Commission of India, by relying on the principles of equity and proportionality and on foreign competition jurisprudence vis-a-vis affected commerce, validated the concept of “relevant turnover” as introduced by the Competition Appellate Tribunal (“COMPAT”).

Background

Section 27(b) of the Act authorizes the CCI to impose penalty…

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The Great Indian Telecom Wars – Limited Period Offers

Last year in October, Reliance Industries Limited owned “Jio Infocomm” took the Indian Telecommunications market by storm. In an era where call rates were peaking and mobile data burned big, round holes in your pocket, Jio launched itself with a uniquely crafted welcome offer and most Indians jumped ship without a second thought. Much to the chagrin of the existing mobile and wireless telecommunications service providers,  Jio decided to offer its data, voice, video services and full bouquet of applications and content absolutely free from October till the end of the year. However, the Telecom Regulatory Authority of India (TRAI) snipped the period down till 3rd December, 2016. Regardless of such regulatory curtailment, Jio continued this offer till 31st December, 2016 and followed it up with a “Happy New Year” Offer which, in essence, extended the contents of the previous offer till 31st March, 2017, i.e., it gave all its users unlimited data, voice calls and messages until 31st March, 2017. It also provided an iPhone exclusive, ‘Jio iPhone offer’, offering unlimited local, STD, and national roaming on voice calls on any network in India, 20 GB of 4G data per month, unlimited 4G data during night, 40 GB Wi-Fi data and unlimited Short Message Service (SMS) from 1st January, 2017 to 31st December, 2017.

As a result of Jio’s antics, like a ripple effect, all other service providers also had to lower their rates and introduce special tariffs to retain its customer base.

Alleging the conduct of Jio to be anti-competitive by virtue of being an abuse of dominant position and being enabled by an anti-competitive agreement between it and its parent company, Reliance, which could afford to fund Jio unlimitedly, Bharti Airtel Limited (Airtel) approached the Competition Commission of India.

In its information filed before the Hon’ble Commission, Airtel alleged that Jio is indulging in zero pricing and predatory pricing. Furthermore, Jio and Reliance together were using the latter’s financial strength gained from other markets to enter into the telecom market.

Briefly stated, Airtel alleged contravention of Section 4 (2) (a) (ii) of the Competition Act, 2002, which states that any direct/indirect imposition of unfair/discriminatory price in the purchase or sale, including predatory price, of goods or service amounts to an abuse of dominant position. Additionally, it was alleged that Section 4(2)(e) of the said Act, which renders the use of dominant position in one relevant market to enter into or protect another relevant market to be an abuse of dominant position was also being contravened by Jio and Reliance. Furthermore, Airtel has also alleged a contravention of Section 3 of the Act stating that the provision of unfettered access to its resources by Reliance to Jio was resulting in an appreciable adverse effect on competition in the relevant market and was, hence, an anti-competitive agreement as per the provisions of the Act.

The Hon’ble Commission held a preliminary conference, on 23rd February, 2017, to hear both sides. Subsequently, on 9th June, 2017, the Hon’ble Competition Commission decided, on a prima facie analysis (as envisaged under Section 26 of the Act), that Jio did not occupy a dominant position in the relevant market, as delineated by the Hon’ble Commission. It further clarified that the provision of free services in itself was not anti-competitive unless offered by a dominant enterprise, backed by an objective of foreclosing competition. The reasoning of the Hon’ble Commission has been analysed as follows.

Since no competition analysis vis-a-vis dominant position is possible without first determining a relevant product market and a relevant geographic market, collectively ‘relevant market’, the Hon’ble Commission commenced its analysis by defining the relevant market to be the ‘provision of wireless telecommunication services to end users in each of the 22 circles in India’. 

It rejected Airtel’s narrow product market definition by recognizing that the distinction between data services and voice services was not pertinent to the present case as such services are provided in a bundled package by all service providers. The Hon’ble Commission also relied on the fact that the Department of Telecommunications (DoT) grants a Unified Access Licence to all telecommunications service providers without any distinction.

With regard to the relevant geographic market, the Hon’ble Commission noted that the territory of India has been divided into 22 circles for which the spectrum to service providers for offering their services is allocated by way of separate auctions. Moreover, the determination of tariffs by service providers was also seen to differ from circle to circle. Additionally, from the demand side of view, it was considered very unlikely that a resident of one locality will avail services from an other territory rather than looking at the options available to it locally.

In assessing the market position of Jio as compared to other service providers, the Hon’ble Commission relied on TRAI’s press release dated 17th February, 2017. It was found that Airtel itself had the largest market share (wireless subscriber base) of 23.5%, followed by Vodafone at 18.1%, Idea at 16.9%, BSNL at 8.6%, Aircel at 8%, RCOM at 7.6%, Jio Infocomm at 6.4%, Telenor at 4.83%, Tata at 4.7%, Sistema at 0.52%, MTNL at 0.32% and Quadrant at 0.27%. The Hon’ble Commission concluded that the existence of several market players provides consumers with free choice and they can shift from one service provider to another with ease. Furthermore, the market share of Jio was not found to exceed 7% in any of the 22 defined circles. Hence, it was not found to be a dominant enterprise, consequently, it was held that no case of abuse of dominant position could be made out against it.

Airtel’s contention of Jio enjoying a dominant position by virtue of holding the premier spectrum bands most compatible for offering 4G services and having access to RCOM’s band by way of a spectrum sharing arrangement was negated by the fact that as per extant regulatory requirements, DoT provides a cap on the overall and band wise spectrum holdings of all service providers. This regulation in itself had the objective of making the market less prone to anti-competitive conduct and ensured that spectrum did not get concentrated in a few hands.

Furthermore, since Airtel could not show any reduction in competition or elimination of competitors as a result of the free services provided by Jio, its allegation of below-cost pricing was also rejected. The Hon’ble Commission stated that, “the relevant market is characterised by the presence of entrenched players with sustained business presence and financial strength. In a competitive market scenario, where there are already big players operating in the market, it would not be anti-competitive for an entrant to incentivise customers towards its own services by giving attractive offers and schemes. Such short-term business strategy of an entrant to penetrate the market and establish its identity cannot be considered to be anti-competitive in nature and as such cannot be a subject matter of investigation under the Act.”

The Hon’ble Commission also noted that no anti-competitive agreement between and Jio and Reliance could be discerned from the facts and circumstances of the case. It stated that investments did not amount to unilateral conduct or leveraging of dominant position since Reliance itself was not a provider of telecommunication services or services ancillary to it. The Hon’ble Commission clarified that construction of such investments as anti-competitive would prevent market growth and deter new players from entering the market.

Thus, the Hon’ble Commission found no contravention of the Competition Act, 2002 and dismissed the matter under Section 26(2) of the Act by passing an order to such effect.

It is most pertinent to note that just a few days ago, on 28th May, 2017, acting on a complaint made by Jio, TRAI had blocked Airtel’s discriminatory and misleading offers to customers under the same plan. Further, Airtel was warned to register new tariff offers with TRAI within 7 days of launching. (Source)

Thus, two sectoral watchdogs have already meted out their decisions. Watch out this space for more as this war intensifies.

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“No one can compel a woman to love.” – Supreme Court of India

On 28 April, 2017, the Supreme Court of India dropped the mic, in a stellar performance, on all debates pertaining to the friendzone, road-side romeos and eve-teasing.  Guys, you can curl up in a corner and cry all you want over unrequited love, but the Big Bad Boss of Courts, deeply pained by the plight of young woman forced to end her life at the behest of her ex, has declared that the right to live with dignity is a woman’s fundamental right. She has the same right to her own space as a man does. Moreover, she has the right to choose who to love. It speaks much about the deplorable depravity of the men of our society that this needed to be recognized and laid down by a court of law.

The Judgment in itself is a departure from routine. Instead of beginning with a dour relaying of facts, viz.,what the applicant has pleaded for and the opposition raised by the respondent, the Judgment, very sensitively, provides the background leading up to a young woman’s death showcasing why it is wrong at so many levels and, hence, is a major cause of concern. This sensitive handling has been shown all throughout the ruling, yet, I believe the beginning deserves a special mention and, thus, has been reproduced as follows:

“The present appeal, by special leave, depicts the sorrowful story of a young girl, in the middle of her teens, falling in love with the accused-appellant and driven by the highest degree of youthful fixation, elopes with him, definitely in complete trust, and after the accused is booked for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code (IPC), she stands behind him like a colossus determined to support which consequently leads to his acquittal. In all possibility, she might have realized that the accused should not be punished, for she was also equally at fault. Be that as it may, as per the prosecution version, he was extended the benefit of acquittal.
The sad story gets into a new and different beginning. The accused feels that he has been prosecuted due to the prosecutrix and gets obsessed with idea of threatening the girl and that continues and eventually eve-teasing becomes a matter of routine. Here, as the exposition of the prosecution uncurtains, a situation is created by the accused which becomes insufferable, where the young girl feels unassured and realizes that she could no more live in peace. The feeling gets embedded and the helpless situation compels her to think that the life is not worth living. Resultantly, she pours kerosene on her body and puts herself ablaze but death does not visit instantly and that is how she was taken to a nearby hospital, where in due course of investigation, her dying declaration is recorded, but she ultimately succumbs to her injuries and the “prana” leaves the body and she becomes a “body” – a dead one.”

For all men out there who think their gender bestows upon them the birthright of not taking no for an answer and merely relegating it to the friendzone, I would like to draw your attention to the following lines of the Judgment:

“One is compelled to think and constrained to deliberate why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom. It has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. No one can compel a woman to love. She has the absolute right to reject.”

Allow me to reiterate, NO ONE CAN COMPEL A WOMEN TO LOVE. SHE HAS THE RIGHT TO REJECT. No one.
For all the men who think their gender gives them the god given right to wolf-whistle, leer and comment on every female on the road, it would be my immense honour to present the following lines of the Judgment to you:

“We are at pains to state that in a civilized society eve-teasing is causing harassment to women in educational institutions, public places, parks, railways stations and other public places which only go to show that requisite sense of respect for women has not been socially cultivated. A woman has her own space as a man has. She enjoys as much equality under Article 14 of the Constitution as a man does. The right to live with dignity as guaranteed under Article 21 of the Constitution cannot be violated by indulging in obnoxious act of eve-teasing. It affects the fundamental concept of gender sensitivity and justice and the rights of a woman under Article 14 of the Constitution. That apart it creates an incurable dent in the right of a woman which she has under Article 15 of the Constitution.”

On a concluding note, the Supreme Court stated that in a civilized society, there is no room for male chauvinism. Furthermore, a man should not put his own ego or, for that matter, masculinity on a pedestal and abandon the concept of civility.
All noble sentiments which, if understood by the men of our nation, would render the establishment of things akin to the Anti-Romeo Squad in Uttar Pradesh quite redundant.
The only problem is that this judgment comes a little too late to sound the voice of reason to ears that have already been deafened by virtue of being raised in this society. I just hope not many more ladies have to die before we begin to raise our men right.