(17) Use of facial recognition in Delhi rally sparks privacy fears

The SC in the case of Puttuswamy vs UOI dealt with the question of reasonable restrictions. It provides us of the test used for all restrictions on Article 21, under which privacy is being read.

 

“The first requirement that there must be a law in existence to justify an encroachment on privacy is an express requirement of Article 21. For, no person can be deprived of his life or personal liberty except in accordance with the procedure established by law. The existence of law is an essential requirement.”

 

“Second, the requirement of a need, in terms of a legitimate state aim, ensures that the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action. The pursuit of a legitimate state aim ensures that the law does not suffer from manifest arbitrariness.”

 

“The third requirement ensures that the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law. Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.”

 

The government also needs to identify its legitimate aims. “The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits,” the order says.

 

Police in Delhi used facial recognition software to screen crowds at a recent political rally – a first for India – raising concerns about privacy and mass surveillance amidst nationwide protests against a new citizenship law.

 

The Automated Facial Recognition System (AFRS) software that the Delhi Police had installed to identify missing children, was used at Prime Minister Narendra Modi’s rally on Dec. 22, a police spokesman said on Monday, without giving further details.

 

The use of the system for profiling and surveillance at public congregations is illegal and unconstitutional. It is an act of mass surveillance. From building an underlying database of people from public protests to running it on crowds of people attending rallies, this directly impairs the rights of ordinary Indians from assembly, speech and political participation,” he said.

 

Delhi Police assures that best industry standard checks and balances against any potential misuse of data are in place. Racial or religious profiling is never a relevant parameter while building these datasets,” the Delhi Police spokesman.

 

1. The Indian Government extended the ban on websites uploading child pornography as per IPC provisions. The director of a website filed a petition against the order before the SC challenging the same. Counsel the director on his line of argument.

(a) The ban is invalid as it is not proportionate to purpose to the problem before the government.(b) The ban is invalid as it does not pursue a legitimate aim.
(c) Director should withdraw as he will face societal backlash.
(d) Both (A) and (B).

 

2. The govt decided to ban websites with child pornography in line with measures of IPC which also criminalise sexual acts against children. The IPC imposes rigorous imprisonment up to 10 years for sexual crimes. Owners of website if found in violation of the new law shall be given a blanket death penalty.

(a) The law is invalid as it is not provided by law.
(b) The law is invalid as it does not pursue a legitimate aim.
(c) The law is invalid as the restriction is not proportionate to the aim of the law.
(d) The law is valid and the petitioner should withdraw the petition.

 

3. There has been a rise of fake news over social messaging apps. The apps have also been hacked by terrorists recently. The Govt. decided to ban all internet based social messaging apps. A files a petition challenging the law. Choose the line of argument that is most likely to stand in support of the petition to challenge the law.

(a) The law is invalid as it does not pursue a legitimate aim.
(b) The law is invalid as the restriction is not proportionate to the aim of the law.
(c) Both (A) and (B).
(d) None of the above.

4. The Indian Government recently imposed a complete lockdown of the country due to the outbreak of Coronavirus. No one in the country is supposed to move outside their houses including doctors and nurses even for emergency situations. Decide the legality of the action.

(a) The action is not pursuing a legitimate aim as absolute lockdown is harmful for those who are already infected with no scope for their treatment available.
(b) The action is not proportionate as it imposes an absolute lockdown even on emergency situations.
(c) Both (A) and (B).
(d) The action is illegal as Coronavirus is a global pandemic.

 

5. The government had no law in place to provide for datasets of facial recognition. What test of privacy does this violate if it does so?

(a) The restriction is not proportionate.
(b) The restriction is not provided by law.
(c) The law does not possess a legitimate aim.
(d) Does not violate Right to Privacy.

 

1. Ans. (d) The question is about the line of argument for a client. To uphold a ban, the law has to be provided by law, pursuing a legitimate aim and proportionate to the aim sought. Thus, (A) and (B) are valid lines of argument against the state’s ban on websites. Option (c) is irrelevant. Hence, (d) is the correct answer.

2. Ans. (c) The question is about the line of argument for a client. To uphold a ban, the law has to be provided by law, pursuing a legitimate aim and proportionate to the aim sought. Herein, the punishment is disproportionate as for committing the same sexual crime, a perpetrator is given rigorous imprisonment but the owner of website where the content is uploaded is given death penalty. Thus, option (c) is the most likely line of argument to succeed before the SC.

 

3. Ans. (c) The question is about the line of argument for a client. To uphold a ban, the law has to be provided by law, pursuing a legitimate aim and proportionate to the aim sought. Herein, the problem is the spread of fake news but the government has decided to ban all social media websites. It is a blanket ban which is not pursuing a legitimate aim and is disproportionate, thus both (A) and (B) are correct.

 

4. Ans. (c) To challenge a ban, it has to be provided by law, pursuing a legitimate aim and proportionate to the aim sought. Herein, the ban is absolute with no provision for emergency services. This is self-defeating for its legitimate aim and also disproportionate as the medical staff and other essential services are not being permitted. Thus, both (A) and (B) are correct.

 

5. Ans. (b) To limit a fundamental right, it has to be provided by law, pursuing a legitimate aim and proportionate to the aim sought. Herein, the government had no law for facial datasets which violates the first test, i.e. provided by law. Thus option, (B).

Legal Reasoning for CLAT, Passage- Labour Code on Industrial Relations Bill

On November 21, 2019, the Union Cabinet approved the introduction of Industrial Relations Code, 2019. This is the third code under labor reforms. Under the new code, forty-four laws are to be amalgamated into four codes. The four codes include wage rates, industrial relations and industrial security and labor welfare. The code intends to simplify and rationalize the Trade Union Act, 1926, Industrial Disputes Act, 1947, Industrial Employment Act, 1946. The code also features a two-member tribunal to fasten the disposal of cases. The code allows the companies to hire fixed-term contract workers. It defines fixed-term employment as a worker who can be hired for a duration of 3 months or 6 months or a year based on the season and orders. With the amalgamation of the laws, the process of registration and filing of returns will get streamlined. The process will help in improving ease of business and hence employment will increase. With the amalgamation of labor laws, the GoI intends to bring maximum governance with minimum laws. States like Andhra Pradesh, Assam, Haryana, Jharkhand, Madhya Pradesh, Rajasthan, Uttarakhand and Uttar Pradesh, where the threshold has been enhanced from 100 to 300 workers by state amendments, have been protected in the Code. The Code also proposes setting up of a “re-skilling fund” for training of retrenched employees. The retrenched employee would be paid 15 days’ wages from the fund within 45 days of retrenchment. An industrial establishment will have to contribute an amount equal to 15 days’ wages or such other days as may be notified by the central government, to this fund for every worker retrenched. The labor ministry is of the view that the proposed amendments will make it easier for an employer to engage/disengage workers based on requirement. On the other hand, it is also being ensured that the retrenched worker is provided an opportunity of acquiring new skills through the re-skilling fund to enhance employability. “The ease of compliance of labor laws will promote setting up of more enterprises, thus catalyzing the creation of employment opportunities in the country,” it said.

 

1. Who is the main recipient of the benefit of the code mentioned above?

(a) The courts as it provides for faster disposal of cases.
(b) The employees as they can get hired for a fixed term period.
(c) The employer as it helps ease the business.
(d) The state as it increases the scope of employment and economy.

 

2. Amita is a worker in a small enterprise that makes jute bags for wholesale for various industries. She was let off her job due to over hiring laborers causing budget constraint to the employer. Which of the below is not one of the benefits she might be given under the above act?

(a) She would be given employment in some other industry as she was retrenched without any fault of her own.
(b) She would be compensated for 15 days of wages to sustain herself while she looks for another job.
(c) She can file a dispute claim in the two-bench tribunal and expect quick redressal.
(d) She would be provided an opportunity of acquiring new skills through the re-skilling fund to enhance employability.

 

3. What is not within the scope of achievement of the objective of the code?

(a) To fix terms of employment and help in job security of the labors.
(b) To amalgamate and unify laws including wage rates, social security, trade unions, industrial relations and industrial security and labor welfare.
(c) To create procedures and benches for faster disposal of labor disputes.
(d) To help in improving ease of business and hence employment will increase.

 

4. Rohit, Rahul and Priya are workers in the State of Kerala, in an industry of over 100 people who have been fired from their post, without any compensation. Can they seek any benefit under this Code?

(a) Yes, as they fulfill the conditions given in the above passage for application.
(b) No, as they are from the State of Kerala and it does not apply to the aid State.
(c) Yes, as their industry has over 100 people working, hence is qualified by the code.
(d) No, as there are no provisions or compensation discussed.

 

5. Ranbir runs a firm with 100 workers employed in handicraft work in the State of Uttar Pradesh. He recently had to fire 10 people due to budget cuts in production cost of his firm, before their fixed tenure was over. Would Ranbir be liable under the said code?

(a) Yes, as he runs an industry and hence would be liable to compensate them for the wages under the said code.
(b) No, as his industry is in Uttar Pradesh, hence he is exempted from the application of the code.
(c) Yes, as this a Union applied code, applicable everywhere, to all industries.
(d) No, as retrenchment of 10 workers puts him below the range of 100 workers quota and hence, he is not liable under the code.

 

 

 

 

 

 

CLAT Gurukul

1. Ans. (d) The main beneficiary of the above legislation would be the state as it gives them the benefit of ease of governance, increase in economy and employment. The rest were benefiting under the various laws anyways, the amalgamation is for State benefit. Option (a) is incorrect as the passage focuses on the benefits of such amendments rather than speedy disposal of trials. Option (b) is incorrect as we don’t whether employees enjoyed fixed employment or not before the amendment. Option (c) seems to be the correct answer but option (d) provides for more comprehensive and exhaustive choice. Hence, option (d) is the correct answer.

 

2. Ans. (a) She would not be ensured another job in another firm under this code, but the other benefits are extended to anyone wrongfully retrenched under this act. All the other options are explicitly stated in the passage and hence, option (a) is the correct answer.

 

3. Ans. (b) If read carefully option (b) provides for extraneous scope of application than the ones given in the code. Hence making it the incorrect answer as these are not the benefits extended in the code. All the other options are explicitly stated in the passage and hence, option (b) is the correct answer.

 

4. Ans. (a) Option (b) is incorrect as this a Union applied code, applicable everywhere, to all industries. Moreover, Kerala is not included in the lists of states where the threshold has been enhanced from 100 to 300 workers by state amendments. Hence, (a) is the correct answer as they ransacked without a cause and hence fulfil the conditions of the code. Option (a) is the correct answer.

 

5. Ans. (b) He had employed 100 workers only. The above passage states that Uttar Pradesh has been exempted through a state amendment for industries with less than 300 workers, hence Ranbir would not be liable in the above situation. Hence options (a), (c) and (d) are incorrect.

Legal Reasoning for CLAT, Passage- Homosexuality

Section 377 is a colonial law which aims to destroy personal choice and snatches away the right to choose one’s partners who constitute a minuscule section of the society. Section 377 reads as follows that “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” This section penalizes for three different subjects which are:

1. If a man has carnal intercourse with another man.
2. If a woman has carnal intercourse with another man.
3. If a person has carnal intercourse with any animal.
This section gives an unreasonable perception of the society which is based on vague, irrational and a stereotyped notion that sexual activity is only related to procreation but if this kind of sexual activity is considered unnatural then methods of contraception should be restricted as well. This infringes upon many basic fundamental rights which could remove this section from Indian Penal Code. This section on the face of it shows inequality towards the sexual minorities and infringes upon article 19(a), (b) and (d) which prohibits people to express them, to associate with people of their choice and also restricts them to move freely in the Indian Territory because of the bias they go through due to their sexual preferences. In a petition filed by Navtej Singh Johar it was contended by the appellant that the state can’t put two adults into jails who are involved in consensual unnatural sex.

A Petition was filed before the SC by dancer NavtejJauhar and four others in 2018 to reassess the judgment passed in the case of Naaz foundation before the Delhi HC. The five judge bench led by the then CJI Deepak Mishra diluted Section 377 to exclude all kinds of consensual sex as it was arbitrary and irrational. SC in its judgment mentioned that “Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.” Justice Chandrachud noted that right to privacy and the protection of sexual orientation are fundamental rights which lie at the core of rights enshrined under Article 14, 15 and 21 of the Constitution. The SC decriminalized 377 to the extent that it would not exclude unnatural offences against minors and animals.
Our constitution has recognized several equality rights for the different sections of society and it recognizes the rights of gender as well. Indian constitution explicitly states that in Article 14 no state shall deny equality before the law and equal protection before the law within the territory of India, Article 19(a) states that right to freedom of speech and expression, Article 21 states that protection of life and personal liberty in which also gives right to live with dignity. These are the basic fundamental rights that are denied to some people because of their sexual orientation. Even these basic fundamental rights are denied to some people because of their sexual orientation.

Source with editing and revision: Discrimination towards Sexual Minorities in India <https://blog.ipleaders.in/discrimination-towards-sexual-minorities-in-india/>

Answer the following on the basis of above mentioned principles:

1. Jagga was charged under Section 377 for raping a goat. Advise Jagga.
a. Section 377 has been declared unconstitutional.
b. He has committed an offence under section 377.
c. There has been no harm to women and children, therefore, his action is lawful.
d. It is a lawful exercise of right to decide one’s sexual orientation.
2. Ram and Shyam were taking an evening stroll and were beaten up by police and arrested under Section 377. Which rights have been violated?
a. Right to privacy
b. Articles 14, 15 and 21
c. Article 19(a)
d. Section 377
3. Gita and Sunita (lesbians) were having consensual sex in their bedroom. The domestic help made a video of them and handed it over to the police. The police arrested Gita and Sunita. Advise them.
a. Their action is unlawful.
b. The domestic help has violated the privacy of Gita and Sunita.
c. The police has wrongfully arrested Gita and Sunita.
d. Both b) and c)
4. X had anal sexual intercourse with his wife Y without her consent. Advise Y.
a. X has committed rape.
b. X has committed an offence under section 377.
c. Both a) and b)
d. X has committed marital rape.
5. L is a bisexual man. She applied for a job at a trading company but was denied job because of his sexual orientation.
a. His right to privacy has been violated.
b. Articles 14 and 15 have been violated.
c. Article 19 has been violated.
d. Article 21 has been violated.

 

CLAT Gurukul
Answers

1. B. Only the part that criminalised consensual sex among adults without harm to women or children has been struck down. Other forms of unnatural sex are still an offence.
2. B. Articles 14, 15 and 21 have been violated which include the right to privacy and protection of sexual orientation.
3. D. Any consensual sexual act among adults is permitted and cannot be questioned, especially in their private spaces.
4. C. Since the intercourse was not consensual, both section 377 and 376 will be attracted.
5. B. Articles 14 and 15 have been violated because there is no intelligible differentia in discriminating between job applicants on the basis of their sexual orientation.

Legal Reasoning for CLAT, Passage- Divorce theories

The theories of divorce under Indian laws are as follows:

 

The fault theory of divorce is also known as the offense theory or guilt theory. Therefore it highlights on the point that a marriage can be dissolved when any of the parties within the bond of matrimonial ties commits an offense against the innocent party of the marriage. Thus it is necessary to have a guilty partner and an innocent partner within the bond the matrimonial ties. The innocent party only holds the right to seek remedy for the divorce. However, the most striking feature is that if both parties are at fault there is no remedy available for them.

 

Mutual consent theory- The reasoning behind this theory is that since two people marry each other through their free will, at the same time, they ought to likewise be permitted to move out willingly. In any case, it highly criticized that this methodology will advance immorality as it will prompt rushed separations and parties would break down their marriage regardless of whether there was a slight contradiction of personality.
Irretrievable breakdown of marriage theory- The irretrievable breakdown of marriage theory is defined as a failure in the matrimonial relationship owning to such adverse circumstances that no reasonable probability remains for the spouses to stay together. As a result of such adverse impossible conditions and situations, the husband and the wife cannot ever stay together. Thus we can say that in such cases there is a stronger reason to live apart compared to the emotions of love, affection, and loyalty that should commonly prevail between the husband and the wife. Therefore the rationale behind this theory is that if a marriage is beyond all possibilities of a repair then it should be brought to an end; when a marriage is not able to last then there is no point in sharing rights and obligations between the two parties.

 

Source with Editing and Revision: https://blog.ipleaders.in/divorce-under-hindu-marriage-act-1955/

 

Questions

 

1. Oreo and Bourbon married under Indian Law. After few years into the marriage their relationship turned sour. They both started neglecting each other. One day Oreo found out that Bourbon is seeing another girl. Enraged by this she also started an affair with her gym trainer. They both came to know about their extramarital affairs. It proved to be hard especially hard on Bourbon and so he wanted divorce from her on the basis of her fault. She on the other hand didn’t want the relationship to end. Can Bourbon succeed in his attempt?

a. Yes
b. No
c. Can’t Say
d. Yes but only if he is able to prove that Oreo indeed was indulged in extra marital affairs.

 

2. Suppose in the same facts given in question above, Oreo also wants to end the relationship. Which of the following theory they can employ to get the divorce?
a. Fault Theory
b. Mutual Consent
c. Irretrievable Breakdown Of marriage
d. None of the above.

 

3. Suppose Oreo and Bourbon decided to forget about their lapses, forgive and commit to each other again in order to save the marriage. Both started mending their ways. However Oreo was not able to trust Bourbon again, she tried and tried but failed to attain any stability. She confronted Bourbon about this and asked him to agree for the divorce on mutual grounds. But he out rightly rejected the idea and told her to take some more time. She finds it futile and wants the divorce anyway, advise her.
a. She can get a divorce based on fault theory
b. She can use mutual consent theory to get the divorce
c. She can get a divorce using the theory of irretrievable breakdown of marriage
d. She can get a divorce using either fault of irretrievable breakdown of marriage theory

 

4. Suppose in the facts given in the question in above, after forgetting and forgiving each other for their lapses they both started working to improve their relation. However Oreo kept suspecting that Bourbon was still talking to some girls. She was becoming increasingly jealous and so she decided to confront him. He denied any such thing, but it didn’t calmed Oreo and she started nagging Bourbon about it and made his life hell. Bourbon found it increasingly difficult to maintain composure in face of baseless allegations and abuses by Oreo. Completely exhausted by Oreo’s constant suspicion and nagging, Bourbon decided to end the marriage. Advise him
a. He can get a divorce based on fault theory
b. He can use mutual consent theory to get the divorce
c. He can get a divorce using the theory of irretrievable breakdown of marriage
d. He can get a divorce using either fault of irretrievable breakdown of marriage theory

 

5. Suppose in the facts used in the question above. Oreo finds out evidences that Bourbon indeed hasn’t changed much and is still involved in extra marital affairs. When she confronted him he accepted his fault and promised to never repeat it. However Oreo doesn’t want to continue the marriage. Advise her.
a. She can get a divorce based on fault theory
b. She can use mutual consent theory to get the divorce
c. She can get a divorce using the theory of irretrievable breakdown of marriage
d. She can get a divorce using either fault of irretrievable breakdown of marriage theory

 

 

 

 

 

 

 

 

 

CLAT Gurukul

Answers

1. B If both parties are at fault there is no remedy available for them.
2. B It allows parties to end the marriage voluntarily the same way they entered into the union.
3. C It is happening because of Oreo’s inability to feel good about the marriage and she is left with no hope. So IBM theory would apply. Not any single party is at fault here.
4. D The fault is on Oreo’s part by being overly suspicious, but even irretrievable breakdown of marriage theory would also apply as Oreo wouldn’t believe in him and he can’t live with the constant nagging. So there is no scope of things getting better in their marriage.
5. A He had committed the lapse again and so he is at fault.