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Copyrights and the Art of Inking

Tattooing has been very popular in western culture. Movies and celebrities have influenced this popular culture of inking body. In realm of law, this has raised a very valid question. Whether the tattoo inked by tattoo artist can be copyrighted? Since India has still not witnessed any legal battle in this regard, this write-up will be only confined to the legal trends found primarly in the US. Any tattoo becomes copyrightable if it is original and fixed in a tangible medium (s.102 of the US Copyright Act,1976). It should not be a copy of another; it should be unique in its own way. Hence the tattoos which state generic terms like ‘mom’ are not copyrightable.  A tattoo can be solely the creation of the tattoo artist or can be a ‘joint work’ by tattoo artist and client. Merely suggesting the colour combination or arrangement does not make the client the co-author of the work. He must be in a position to determine and contribute significantly to the tattoo design. In former case, the client do not claim copyrights over the tattoo while in latter case, if one of the authors license without the permission of the  other author, this will result in copyrights violation.. Fixation in a tangible medium means it must be permanent and should be copied in a paper, canvas or CD. The Courts of US have recognised human skin as a tangible medium for the purpose of copyrighting tattoo.  The Indian Copyright Act, 1957 defines artistic work to include ‘any other work of artistic craftsmanship which is an inclusive definition to include tattoo.

The stand taken by US Courts on copyrightability of tattoo is primarily discussed in three cases.

Reed v. Nike Inc. :Rasheed Wallace Tattoo (2005)

The question whether tattoo could be subjected to protection under copyrights was discussed under this case.  Here, the tattoo artist Reed sued for damages against Nike and Weiden for using Wallace’s tattoo without his permission. Further, charges of contributory negligence were levelled against Wallace for making other defendants believe that he was the sole author of the tattoo. However, this case was settled before it went for trial.

Whitmill v. Warner Bros: Mike Tyson Tattoo (2011)

This is the most celebrated case on the copyright infringement of tattoo belonging to tattoo artist. In the slapstick comedy movie ‘Hangover II’, the Helms’s character depicts the tattoo of Mike Tyson. Whitmill contended that defendant has infringed his copyright by copying  it and publicly displaying it in addition to creating a derivative work. The preliminary ruling was in favour of Whitmill. The matter was decided out of Court.

Escobedo v. THQ: Conditt Tattoo (2012)

Escobedo had tatooed a lion on one Conditt .Conditt on an implied license permitted the defendant to display the tattoo on his body but not the right to reproduce it. Escobedo filed a case for derivative work against the videogames company, THQ Inc.

Effect of Copyrights on tattoo

The copyright holder is given the right to exploit it, license, reproduce or even extinguish it. In case of a tattoo, it is not possible for the tattoo artist to refrain his client from publicly displaying his tattoo. He gives his client an implied license to publicly display it and restrict the right to reproduce it and create derivative work. Johnny Depp modifying his tattoo from ‘Winowa Forever’ to ‘Wino Forever’ is an example for derivative work.  The tattoo artist is entitled to moral right that his creation should not be destructed, modified or mutilated without his permission. This is protected under Visual Rights of Artists Act in USA.  This means laser treatment to extinguish tattoo can be only done with the permission of the artist.

Conclusion

Copyrights on tattoo provide protection for artist for their artistic work. It is to note that in Reed’s and Escobedo’s case, they were alleging copyrights over preliminary drawings of tattoo while in Whitmill’s case, copyrights was on the tattoo itself.  Although the Court has recognised copyrights on tattoo, it failed to explain standard prescribed for adjudging both situations. To avoid conflicts, the parties must consider either entering into ‘work for hire agreements’ entailing waiver clause or license agreement to share benefits and reduce cost of litigation and thus creating a balance between  the rights of the artists and clients.

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Copyrightability Of Fictional Characters

At some point of life, all of us have struck friendship with fictional characters and may well even have formed alter-egos out of them and if only we could free them from the clutches of law. Fictional characters are the creation of literary, artistic or cinematography work. In ‘Warner Bros Inc. v. ABC’, the  US Court defined “character” as “aggregation of the particular talents and traits his creator selected for him”. Upon publication, these characters become open for public exploitation.

It is to be noted that stock character, archetype and characters that lack unique characteristics are excluded from the purview of copyrights. Further, it is not only the collection of characteristics attributed to a character that can be copyrighted but also individual characteristics. The glove worn by Freddy Krueger in the Nightmare on Elm Street films was given copyright protection. Courts have espoused two principles to determine the copyrightability of fictional characters :

  1. Especially Distinctive Test

This test elucidated in the US decision of ‘D C v. Towel’, has three elements. First, the characters must have “physical and conceptual qualities”. Second, the “character delineation test” i.e the character must be delineated to the extent that warrants protection.  This means more the character described, more the character can be protected. For example, the consistency maintained in expressing the characteristics of James Bond in sixteen movies reflects the higher measure of delineation of the character. Third, the character must be “especially distinctive” and “contain some unique elements of expression.”

  1. Story Being Told Test

This principle means the character must be well delineated to constitute the story being told than being a chessman who narrates the story. In other words, the character must not be a mere vehicle for telling the story; instead the story must revolve around the fictional character. This test was applied in ‘Universal Studio v. Kamar Industries’, where the Court upheld that character ‘ET’ was copyrightable as it was unique and distinctive character about whom the movie revolved.But this rule later on was diluted in ‘Air Pirates’ case where the Court held that the fictional character can be copyrighted even without complying ‘story being told test’ provided the character is sufficiently described to cross the fine line from idea to expression.

Graphical Characters

Courts have been liberal in granting protection to graphic characters compared to  literary characters. In Superman case, the Court upheld that creator of “Wonderwoman” has substantially copied pictorial and literal elements of “Superman”.  This does not mean artist are discouraged from using the idea of man super human powers.

Fair Dealing

Fair dealing means right to utilise copyrighted work for purpose to criticise, to comment, to analyse and even use it for educational purpose. In ‘Walt Disney v. Air Pirates’, the court had to examine whether these characters could be utilised for the purpose of parodying a character. The court was of the opinion that exact replication of the “Mickey Mouse” and “Donald Duck” did not amount to fair dealing. In ‘Mattel v. Walking Mountains’, the court upheld the use of nude Barbie dolls for the purpose of photography as fair dealing. The use was parody to point out the society’s tendency to objectify women.

Fictional characters in Public Domain

After the expiry of the period of copyrights, the fictional character will enter public domain. Such characters in public domain are not copyrightable. New authors are encouraged to add new creative elements to those characters and give life to those characters in their own versions. This has been done by Universal Pictures  with Mary Shelley’s “Frankenstein” and Bram Stoker’s “Dracula,” and Disney  with the Brothers’ Grimm “Snow White,” “Cinderella,” and “Rapunz”.

Conclusion

It is to be noted that in India the definition of literary work or artistic work does not include character although artistic works like cartoons are protected. The characteristic of character could only be ascertained from the totality of the work, moreover cases where protection is  given to fictional character has not come up in the Indian jurisprudence much. In MalayalaManorama  v. V T Thomas, the Kerala High Court did not delve into copyrighability of the character but restricted to ownership over the characters “ Boban” and “Molly”. With the rising number of Indian Superheroes in the mainstream Cinema and comics, the day when  Indian Jurisprudence unlocks the pandora’s box of intricate issues that revolve around the copyrightability of fictional characters is not so far because when superheroes become the saviours of our mundane lives, we are obliged to protect them legally.

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Copyright in Cloud Computing and Digital Era

Cloud computing has, so far, no clear definition. The physical difficulty in storing huge amount of data and recurring data breaches have impelled the development of a system wherein the information is not stored in the physical hardware but in cyberspace called cloud. It provides three types of services – (SaaS) Software as a Service, IaaS (Infrastructure as a Service) and PaaS (Platform as a service).

Iaas generally provide service to network architects. Here, the Cloud Service Providers (CSPs) provide infrastructures like storage, communication, firewalls and IP addresses thereby creating an environment where the platform developers can install and run a program. Amazon web service is one example that provides IaaS.

PaaS sets out a platform for the application developers to develop services and application without actually buying the physical hardware and software. Google App Engine provide platform for various companies to develop applications.

SaaS generally aimed at end users, is accessed through internet. Here, the user is not concerned about its installation and maintenance. Consumer pays only for the usage. Gmail, Microsoft 365 are all services utilised in the form of SaaS.

Laws on Cloud computing in USA, EU and India

In European Union, EU Software Directive and EU Copyrights Directive govern copyrights laws on cloud computing. Former recognises software as a literary work. EU Copyrights Directive provides copyright holder the exclusive right to reproduce, distribute and communicate the work to the public.

In USA, the laws on cloud are envisaged in S.109 of the Copyright Act 1976. The copyright owner has exclusive right to ‘distribute copies…to public and others by way of transfer of ownership…’. In the context of Internet, this means transfer of files from one computer to another. The Act of Stored Communication, 1986 and Health Insurance Probability and Accountability Act are two other legislations that deal with storing personal information within a cloud.

In India, laws on cloud computing are still growing. The Copyright Act, 1957 recognise data stored in electronic form as literary work. While the Information Technology Act, 2000 deals with electronic governance and electronic records, the Information Technology (Reasonable Practices) Rules, 2011 entails rules on storage of sensitive personal information in cyberspace.

Cloud Computing, Copyrights and European law

Here, the copyright violation mainly concerns online storage lockers for content uploaded by users. In Newzbin’s case of United Kindgom, Newzbin Ltd was liable for providing hyperlinks in their webpage to download movies from other websites; there exist a close relationship between primary infringer and authoriser. Arguments were raised as to charge them as secondary infringer as they did not obtain license from the rightful copyright owner. In such situation the CSPs are obliged to follow “notice and take down” procedure. In Google Ad words case, CJEU held that the CSPs should play a neutral role and ensuring knowledge about data stored.

In 2012, Pirate Bay Bit Torrents founders were prosecuted by Swedish Government as primary infringer for encouraging copyrights violations. Similarly, Google was also sued  for publishing digitalised books for free without the permission of the copyright holders of various publishing houses.

Software Piracy

One of the most prominent services provided by the CSPs is SaaS. Many software companies are engaged in the business of providing cloud services to companies and other consumers. However, this poses various challenges. SaaS is believed to be the most efficient means to curb software piracy. This is because it is easy to track down the violators when data stored in cloud is being hacked compared to the difficulty of  police force to seize bootlegged CDs in every nook and cranny. However, the problems of “black clouds” and “grey clouds” remain unanswered. Black cloud is presence of pirated SaaS. Grey cloud arises when a consumer (a Company) buys a license legally and then sells to members of company and even to outsiders.

 

Conclusion

Direct infringement can be levelled against CSPs only if they partook directly in the violation. Management and storage of  data does not imply abetment to breach of copyrighted files,thus  making  the threshold to determine direct liability a high one and was pronounced so by the US Court in ‘Religious Technology Center v. Netcom Communication’. The plaintiff merely has to establish that the CSP is more than a ‘mere passive conduit’ for storage. But studies and reports suggest that storing data as SaaS is the best available method to counter software piracy. Enhanced protection of data and information from grey and black clouds are also the need of the hour.

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Dissent and Democracy – Sedition Laws in India

By Karan Kumar Khaitani

“It shall be the duty of every citizen of India to cherish and follow the noble ideals which inspired our national struggle for freedom.”[1]

The recent spate in instances of invoking sedition laws against human rights activists, journalists and public intellectuals in the country have raised important questions on the undemocratic nature of these laws, which were introduced by the British colonial government.

While sedition laws are part of a larger framework of colonial laws that are now used liberally by both the central and state governments to curb free speech, the specificity of these laws lie in the language of ‘disaffection’ and severity of the punishment associated with them. Sedition laws were used to curb dissent in England, but it was in the colonies that they assumed their most draconian form, helping to sustain imperial power in the face of rising nationalism in the colonies including India. Targets of this law included renowned nationalists like Mahatma Gandhi, Bal Gangadhar Tilak and Annie Besant. It is ironic that these laws have survived the demise of colonial rule and continue to haunt media personnel, human rights activists, political dissenters and public intellectuals across the country.

In the Universal Declaration of Human Rights, 1948 (UDHR), Article 19 states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Restrictions on the freedom of expression can be justified if they are provided by law or if they are in pursuance of a legitimate aim in international treaties such as the protection of national security, public order, public health or morals. There needs to be a necessity to restrict the right in the form of a pressing social need and there needs to be a strict scrutiny regarding the justification of the restriction. What needs to be seen is not just the necessity of the law that seeks to restrict the freedom but also the individual measures taken by the State. When a law restricts freedom of expression by reference to national security or public order imperatives, and that law is couched in general terms, specific justification needs to be provided by the State in prosecution (for compliance) with Article 19 of the ICCPR.

A colonial legacy like sedition law, which presumes popular affection for the state as a natural condition and expects citizens not to show any enmity, contempt, hatred or hostility towards the government established by law, does not have a place in a modern democratic state like India. The case for repealing the law of sedition in India is rooted in its impact on the ability of citizens to freely express themselves as well as to constructively criticise or express dissent against their government. The existence of sedition laws in India’s statute books and the resulting criminalization of ‘disaffection’ towards the state is unacceptable in a democratic society. These laws are clearly colonial remnants with their origin in extremely repressive measures used by the colonial government against nationalists fighting for Indian independence. The use of these laws to harass and intimidate media personnel, human rights activists, political activists, artists, and public intellectuals despite a Supreme Court ruling narrowing its application, shows that the very existence of sedition laws on the statute books is a threat to democratic values.

Section 124A should be scrapped in my view and the following law should be debated, discussed and enacted:

“Unlawful activity”, in relation to an individual or association, means any action taken by such individual or association

(i) Which directly incites through violent means, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union,

(ii) Which has, as a direct consequence of such action, the result of disrupting the sovereignty and territorial integrity of India;”

It is time we come out of the narrow closet of ideas of ‘nationalism’ and ‘Indian Culture’, and prevent ourselves from putting the larger goals such as upholding the principles of democracy at stake. For it will be a dangerous delusion if we continue to believe that the use or rather, the abuse of a law as arbitrary as Section 124-A of IPC cannot drive the people of the nation into a revolution and a dreadful retaliation against the state.[2]

At this juncture, it is important to point out that the democratic edifice of our country is not fragile to be easily shattered by ways of speeches in public places or by printing an article in the print media. In other words, the unity and integrity of India and the legitimacy of the Indian state are not as weak as it was in the case of the British colonial regime to be threatened and shattered by the speeches or the writings of a section of the political class.[3]

With this, I would like to conclude with the words of Gandhi Ji:

“Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

[1] Article 51(b), Constitution of India, 1950

[2] India’s Democracy in great Danger, Youth ki awaaz, 3rd March 2016

[3] Sedition Law and Indian Democracy, Law Teacher, 2016

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Defamation in Cyberspace

By Aishwarya Ganesan

In the era of the Cyber World, the Internet provides Individuals an equal opportunity to access data/ information; and with the high usage of technology, misuse of the cyberspace amplified. As the uses and applications of the technology develop, understanding of the technology grows.

With the growth in the extensive usage of social media, cyberspace has provided Individuals around the globe a wide platform to express their views. But should this electronic media be an arena to disrepute anyone?

ELEMENTS OF DEFAMATION

  • Plaintiff to prove publication of the defamatory statement, and that it refers to the Plaintiff
  • Prove that the Statement is defamatory
  • The said statement must be false and untrue and must be made with malicious intent

 

However if the statement is true and is made in Good faith and in Public interest, it fails from being a defamatory statement.

The Indian Penal Code solely talks of defamation.

Section 499 IPC: 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. Explanation 2.— It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Section 500 lays down the punishment in such cases:

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

Can a company be held responsible for its employees’ actions? The test that determines this is whether the actions were suited to the benefits of the company, the employee would be held vicariously liable if he were promoting his own interests. India is not yet a signatory to the Council of Europe’s Convention on Cyber Crime, formulated by the EU, globally; around 43 nations have signed this treaty addressing the issues of cross-border terrorism.

Asia’s first cyber Defamation case was filed in India, in the case of SMC Numatics Ltd. v. Jogesh Kwatra. Defamatory e-mails were said to be sent by the defendant to the top management of SMC Numatics, who has, since been retrained from communicating with the Plaintiff. This order of the Delhi High Court holds extensive significance since it was the first time an Indian Court recognised the issue of Cyber defamation, and took action against it.

Section 66A of the IT Act, 2000: If any person sends by means of a computer resource or a communication any content which is grossly offensive or has a menacing character or which is not true but is sent to create nuisance, annoyance, criminal intimidation, hatred or ill will etc shall be imprisoned for an imprisonment term which may be up to two years combined with a fine. This section has been struck down; however a few other sections have been amended and added to curb issues relating to Cyber Defamation.

Section 68(A) has been proposed for providing modes and methods for encryption for secure use of the electronic medium. This principle has been proposed for safer usage of the electronic medium. Section 69, has been amended to take care of the concerns of the Ministry of Home Affairs regarding the safety, sovereignty and integrity of India and further preventing stimulation to the commission of any cognizable offence. This provision relates to the authority/power to issue instructions for interception or monitoring or decryption of any information through any computer resource, which stands rightfully amended.

Section 67 of the Act is amended to diminish the term of imprisonment for publishing or transmitting obscene material in electronic form to three years from five years and there is an increase in the fine thereof from Indian Rupees 100,000 (approximately USD 2000) to Indian Rupees 500,000 (approximately USD 10,000). A series of new sections have been inserted as Sections 67 A to 67C. While Sections 67 A and B insert penal provisions with respect of offenses of publishing or broadcasting of material containing sexually explicit act and child pornography in electronic form, section 67C deals with the obligation of an intermediary to preserve and retain such information as may be specified for such duration and in such manner and format as the central government may prescribe.

Today appreciation of the need for legislation and what is required in terms of its structure and content has changed

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Origin and Development of Contract Law

By Prashansa Shah

About 144 years old is our Indian Contract Act, and since then, it has been very much active and developing. The contracts and contract making today, reaches new dimensions with numerous variations and innovations, but still holding on to the prime purpose of safeguarding the parties’ interests and expectations.

As we analyse the origin and development of laws of contract, one of its core purposes has always been to facilitate and ensure smooth functioning of business and exchange.

The emergence and development of contract law derives most of its history from the industrial revolution. Since ancient times, it was the growth of trade and commerce that enhanced the need to have contracts.

After the inception of civilization, eventually people realised, that performing activities that involved exchange and transactions with each other, was is a very vital and unalienable part of their livelihood. As commerce flourished through this idea, the need to safeguard the same from false practices and non fulfilment of promises also arose.

However, the scenario was such that there was lack of a formal and systematic mechanism to rule over the transactions and abide the parties to perform and fulfil their duties and promises. Absence of any such rule, created disharmony, quarrels and disputes, leading to increase in losses, frauds, non-uniformity and thus non reliability and unrest in the society.

In order to avoid the unnecessary chaos and such unpredictability, laws were formulated. The frequency of people approaching the courts for breach of contracts increased, as everyone wanted to secure their commercial interests and expectations. Consequently, a huge collection of caselaws developed with the courts and the inception of specific laws eventually took place.

CONTRACT LAW AS A SOCIAL UPGRADATION

Widespread encouragement was given to the recognition of contractual obligations and towards the evolution of ‘rights of parties’, by virtue of contracts rather than by status. Evidently, the development of laws of contract was seen as an ideal development of the whole society where it was absorbed. This is because binding promises and contracts gave rise to contractual obligations governed by laws and conferred rights and remedies to the parties. All this eradicated some of the ill-terms of the society which perpetuated inequality in the name of status and superiority. A sense of equality was developed with the freedom of contracts, and at the same time, certain restrictions upheld by the law also prevented misuse of such powers and freedom.

“The movement of all progressive societies has hitherto been from status to contract.”[1] Is indeed very well observed, as we see the positive changes in the society with the emergence of contract law.

 

INDIAN CONTRACT LAW

The Indian Contract Act, 1872, governs the contractual affairs within the jurisdiction of India. India being a country with colonial history, the English Law of Contracts has been a major source of derivation and inference for the formation of Indian contract laws. However, owing to the difference of situations and circumstances, the Indian contract law suits itself, to the Indian scenario and at various places differs from the English rule.

[1] Quoted by Sir Henry Maine. He holds some of the splendid and widely noted works on study of societies and their development.

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Competition in Space – The commercial regime of private players

By Hariharan Vignesh

Launching satellites into orbit, once the exclusive domain of the U.S. and Soviet governments, today is an industry in which companies in the United States, Europe, China, Russia, Ukraine, Japan, and India compete. In the United States, the National Aeronautics and Space Administration (NASA) owns and launches its space shuttle. Private sector companies provide launch services for other NASA launches, and many of those for the Department of Defense (DOD). Commercial customers purchase launch services from the U.S. companies or their competitors. Since the early 1980s, Congress and successive Administrations have taken actions, including passing several laws, to facilitate the U.S. commercial space launch services business. The Federal Aviation Administration (FAA) regulates the industry

Several entrepreneurial U.S. companies have been attempting to develop RLVs through private financing. Many have encountered difficulties in obtaining financing from the financial markets, and some have sought government loan guarantees or tax credits. Some have received limited direct government funding through various contracts. One company, SpaceX, headed by Elon Musk (creator of PayPal), asserts that it will dramatically reduce the cost of reaching orbit with its partially reusable Falcon launch vehicle i.e The first Falcon launch, of small DOD communications satellites.

Europe, China, Russia, Ukraine, India, and Japan offer commercial launch services in competition with U.S. companies. Most satellites are manufactured by U.S. companies or include U.S. components and hence require export licenses, giving the United States considerable influence over how other countries participate in the commercial launch services market. The United States negotiated bilateral trade agreements with China, Russia, and Ukraine on “rules of the road” for participating in the market to ensure they did not offer unfair competition because of their non-market economies.

Europe: The European Space Agency (ESA) developed the Ariane family of launch vehicles. The first test launch of an Ariane was in 1979; operational launches began in 1982. ESA continued to develop new variants of Ariane. Ariane 5 is the only version now in use. ESA also is developing a smaller launch vehicle, Vega, whose first launch is expected in 2005. Operational launches are conducted by the French company Arianespace. Arianespace conducts its launches from Kourou, French Guiana, on the northern coast of South America. Arianespace also markets Russia’s Soyuz launch vehicle and ESA is planning to build a launch site for Soyuz at Kourou.

India: India conducted its first successful orbital space launch in 1980. Its ASLV and PSLV launch vehicles can place relatively small satellites in low Earth orbit. India is developing a larger vehicle (GSLV) capable of reaching geostationary orbit. The GSLV, which uses Russian cryogenic engines that were the subject of a dispute between the United States and Russia (discussed earlier), made its first operational flight in September 2004.

The U.S. Congress has been debating issues involving the domestic launch services industry for many years. Part of the debate has been focused on satellite export issues (discussed below). Another part concerns what the government should do to stimulate development of new launch vehicles by the private sector, particularly in a market that is stagnant or declining. That debate focuses on whether tax incentives or loan guarantees should be created for companies attempting to develop lower cost launch vehicles. Tax incentive advocates argue that loan guarantee programs allow the government to pick winners and losers; loan guarantee advocates argue that tax incentives are insufficient to promote necessary investment in capital intensive projects.

Thereby, it is evidently clear that competitive regime needs to established in order to feed both public and private partnership between governmental and non-governmental entities to survive and thrive in the market of the future.

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Emergency Laws and Civil Liberties

By George Nalappat

The provision of emergency laws in various constitutions around the world has always been up for a debate. The power that is vested in the governments and the executives to enforce and implement emergency powers can be traced back to the early Greek civilization. Even though such is the case, it is so astonishing that so little thinking and writing has been done on the politics of the emergency situations other than for the early scholarly efforts of Carl .J. Friederich, Clinton L Rossiter and Frederick .M. Watkins and the writings of German jurist Carl Schmit.[1] However, it has been found out through various researches that such widespread implementation of the emergency laws have been violating the human rights of people all around the globe and even pose a threat for implementing the Human rights covenants that are proposed by the UNO.

The encroachment of emergency law provisions on civil liberties and the gradual change of emergency powers to emergency regimes have been two of the grounds in which the very existence of emergency powers has been questioned by various philosophers around the world. The reliance of the executive on emergency powers to respond to perceived threats from other foreign sovereigns have always presented a challenge for the maintenance of a constitutional governance ever since the beginning of a Republic.[2] However it has also been concluded by various legal philosophers that since the provision of emergency power is present in almost every contemporary constitution, thought and time needs to be given on how to accommodate emergencies within our social life and thereby how to constitutionalize emergency powers.

The persistence of emergency powers and the breakdown of civil liberties have been the cause for the collapse of democracy in various countries and hence it is the need of the hour to spend some thought into the said topic.

Through an in depth study on prevalent emergency laws throughout the world- AFSPA for example, it can easily be found out that Emergency laws/ martial laws pose for constitutional democracies – problems of a magnitude and variety to defy easy solution, and evokes response which vary according to a nation’s pattern of political experience and institutions. It is also understood that the time has gone in which one could challenge the very existence of the provision for emergency laws in various constitutions and hence the focus now should be on how to accommodate the existing emergency powers into our civil society

To accommodate the provisions of emergency regimes in our society, the first realization that we need to have is that there is a fundamental difference between the rights enjoyed by a society, as a whole during a period of emergency and a period of normalcy. If this realization has been well thought out by the existing political system, instances will be less, where there is an outcry for the slightest violation of human rights. However, this does not mean that human beings will be entirely denied of their inherent civil and political rights, but it means that there has to be a certain degree of relaxation on the rights guaranteed to every human being. So the conflicts regarding emergency regimes and human rights will be entirely determined on where a restraint needs to be imposed on the powers that are enjoyed by an executive in a period of emergency. This simply means that a clear cut balance needs to be struck on the emergency powers enjoyed by an executive during the period of emergency and its encroachment on human rights. This balance has to be maintained or else it would lead to the collapse of the constitutional machinery existing in a state.

There are different mechanisms that allow a state to make this balance. One such mechanism is to develop a constitutional machinery within the state itself that ensure minimum protection for its citizens during the period of emergency. The second method is by devising procedural safeguards against the violation of human rights taking place within the state. This is where the role of the judicial system existing in a state comes into play. After intra-state mechanism has been successfully developed, the next task is to make sure that the international community comes together to act against the violators of human rights. To achieve this mechanism, there has to be an overall change in the existing international rules. Constitution of a separate International Body to monitor the effects of emergency regimes that exist in different nations. It should be ensured that countries that deviate from the set International standards are imposed with sanctions, one kind or the other to make sure that such instances never repeat and some of the basic human rights are given priority over the needs of the executive or the needs of a state as it is claimed.

Whatever be the mechanism that has been brought into force, it does come with its own limitations. Almost all measures require the consent of the executive, who takes care of all the affairs of the state. Bringing into force, such mechanisms without the prior permission of the executive will require a complete overhaul of the existing political landscape of a country, and when this is viewed in a broader picture of international regime, the chances for such occurrences are very remote. Overall, it can be concluded that the issue of emergency powers has no easy solutions. It will take years of detailed discussion and not a political revolution to bring in solutions, though it won’t be concrete, but solutions that ensure that the individual rights in an international sphere does not conflict with the needs of emergency regimes that are imposed on the state by an executive.

[1] Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America, rev. ed. (New York: Blaisdell, 1950), chapter 26; Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton, N.J.: Princeton University Press, 1948); and Frederick M. Watkins, The Failure of Constitutional Emergency Powers under the German Re-public (Cambridge, Mass.: Harvard University Press, 1939).

[2] Executive use of emergency powers to respond to foreign crisis threatens to undermine both constitutional separation of powers and individual liberties. As it was warned by James Madison almost 200 years ago, “perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.” A. SCHLESINGER, THE IMPERIAL PRESIDENCY ix (1973) (quoting Letter from Madison to Jefferson, May 13, 1798); see also THE FEDERALIST No. 8, at 45 (A. Hamilton) (J. Cooke ed. 1961) (“Safety from external dangers is the most powerful director of national conduct. Even the most ardent love of liberty will, after time, give way to its dictates.”).