Delhi HC judgement -Super Cassettes v. MySpace #copyright


The Delhi High Court’s judgment in Super Cassettes v. MySpace last July is worrying for a number of reasons. The court failed to appreciate the working of intermediaries online and disregard all pragmatic considerations involved. The consequences for free expression and particularly for file sharing by users of services online are especially unfavourable.

The judgment[*]is extremely worrying since it holds MySpace liable for copyright infringement, despite it having shown that it did not know, and could not have known, about each instance of infringement; that it removed each instance of alleged infringement upon mere complaint; that it asked Super Cassettes to submit their songs to their song identification database and Super Cassettes didn’t.

This, in essence, means, that all ‘social media services’ in which there is even a potential for copyright infringement (such as YouTube, Facebook, Twitter, etc.) are now faced with a choice of either braving lawsuits for activities of their users that they have no control over — they can at best respond to takedown requests after the infringing material has already been put up — or to wind down their operations in India.

The Facts

Aside from social networking, MySpace facilitates the sharing of content between its users. This case concerns content (whose copyright vested in T-Series) was uploaded by users to MySpace’s website. It appears that tensions between MySpace and T-Series arose in 2007, when T-Series entered into talks with MySpace to grant it licenses in its copyrighted content, while MySpace asked instead that T-Series register with its rights management programme. Neither the license nor the registration came about, and the infringing material continued to be available on the MySpace website.

Specifically, T-Series alleged that cases for primary infringement under section 51(a)(i) of the Copyright Act as well as secondary infringement under section 51 (a) (ii) could be made out. Alleging that MySpace had infringed its copyrights and so affected its earnings in royalties, T-Series approached the Delhi High Court and filed a suit seeking injunctive relief and damages. In proceedings for interim relief while the suit was pending, the court granted an injunction, but, in an appeal by MySpace, added the qualification that the content would have to be taken down only on receipt of a specific catalogue of infringing works available on MySpace, rather than a general list of works in which T-Series held a copyright.

The Defence

While other arguments such as one around the jurisdiction of the court were also raised, the central issues are listed below:

  1. Non-Specificity of Prayer
    T-Series’ claim in the suit is for a blanket injunction on copyrighted content on the MySpace website. This imposes a clearly untenable, even impossible, burden for intermediaries to comply with.
  2. Knowledge
    MySpace argued that no liability could accrue to it on two counts. The first was that it had no actual or direct knowledge or role in the selection of the content, while the second was that no control was exercised, or was exercisable over the uploading of the content. Additionally, there was no possible means by which it could have identified the offending content and segregated it from lawful content, or monitored all of the content that it serves as a platform for.
  3. Intermediary status and Safe Harbour Protection
    In relation to its status as an intermediary, MySpace raised several arguments. First, it argued that it had immunity under section 79 of the IT Act and under the US Digital Millennium Copyright Act (US DMCA). Another argument restated what is arguably the most basic tenet of intermediary liability that merely providing the platform by which infringement could occur cannot amount to infringement. In other words, the mere act of facilitating expression over internet does not amount to infringement. It then made reference to its terms of use and its institution of safeguards (in the form of a hash filter, a rights management tool and a system of take-down–stay-down), which it argued clearly reflect an intention to discourage or else address cases of infringement as they arise. MySpace also emphasized that a US DMCA compliant procedure was in place, although T-Series countered that the notice and take down system would not mitigate the infringement.
  4. Relationship between MySpace and its Users
    Taking from previous arguments about a lack of control and its status as an intermediary, MySpace argued that it was simply a licensee of users who uploaded content. The license is limited, in that MySpace is only allowed to alter user-generated content so as to make it viewable.

Outcomes

  1. Infringement by Facilitation
    The court concluded that infringement in terms of section 51 (a) (ii) had occurred in this case, since web space is a “place” in the terms required by the section and there were monetary gains in the form of ad revenue. The argument as to a lack of knowledge of infringement was also rejected on the ground that MySpace’s provision for safeguards against infringement clearly established a reason to believe that infringement will occur. Also referenced as evidence of knowledge, or at least a reason to believe infringement would occur, is the fact that MySpace modifies the format of the content before making it available on its website. It also tested for infringement by authorization in terms of section 14 read with section 51 (a) (i), but concluded that this did not arise here.
  2. Reading away section 79?
    The court accepted the argument made by T-Series to the effect that sections 79 and 81 of the IT Act must be read together. Since section 79 would be overridden by section 81’s non-obstante, the effect would be that rights holders’ interests under the Copyright Act will erode intermediaries’ immunity under section 79.
  3. Due Diligence
    The court rejected the argument that the provision of due diligence or curative measures post-infringement would be sufficient. Specifically, the contention that the quantum of content being uploaded precludes close scrutiny, given the amount of labour that would be involved, was rejected. Content should not immediately be made available but must be subject to enquiries as to its title or to authentication of its proprietor before it is made available. In fact, it holds that, “there is no reason to axiomatically make each and every work available to the public solely because user has supplied them unless the defendants are so sure that it is not infringement.” (Paragraph 88).

There is also an attempt to distinguish the Indian framework from the DMCA. While that law calls for post-infringement measures, it is argued that in India, on reading section 51 with section 55, the focus is on preventing infringement at the threshold. In response to the case that it would be impossible to do so, the court held that since the process here requires MySpace to modify the format of content uploaded to it to make it viewable, it will have a reasonable opportunity to test for infringement.

Analysis

Accounting for the Medium of Communication

The court’s analysis of the issues begins with a predictable emphasis on how the law of copyright would operate in the context of what is termed “internet computing”, peppered with trite statements about “the virtual world of internet” creating “complexit[ies]” for copyright law. The court appears to have entered into this discussion to establish that the notion of place in section 51 (a) (ii) should extend to “web space” but the statements made here only serve to contrast starkly against its subsequent failure to account for the peculiarities of form and function of intermediaries online. Had this line of argument been taken to its logical conclusion, after the character of the medium had been appreciated, the court’s final conclusion, that MySpace is liable for copyright infringement, would have been an impossible one to arrive at.

And What of Free Speech?

As it had argued before the court, intermediaries such as MySpace have no means by which to determine whether content is illegal (whether by reason of amounting to a violation of copyright, or otherwise) until content is uploaded. In other words, there is no existing mechanism by which this determination can be made at the threshold, before posting.

The court does not engage with the larger consequences for such a scheme of penalizing intermediaries. Censoring patent illegalities at the threshold, even if that were possible is one thing. The precedent that the court creates here is quite another. Given the general difficulty in conclusively establishing whether there is an infringement at all due to the complexities in applying the exceptions contained under section 52, it should not be for ordinary private or commercial interests such as intermediaries to sit in judgment over whether content is or is not published at all. In order to minimize its own liability, the likelihood of legitimate content being censored by the intermediary prior to posting is high.

The consequences for civil liberties, and free speech and expression online in particular, appear to have been completely ignored in favour of rights holders’ commercial interests.

Consequences for Intermediary Liability and Safe Harbour Protection

Even if every instance in question did amount to an infringement of copyright and a mechanism did exist allowing for removal of content, the effect of this judgment is to create a strict liability regime for intermediaries.

In other words, the court’s ruling will have the effect that courts’ determination of intermediaries’ liability will become detached from whether or not any fault can be attributed to them. MySpace did make this argument, even going as far as to suggest that doing so would impose strict liability on intermediaries. This would lead to an unprecedented and entirely unjustifiable result. In spite the fact that a given intermediary did apply all available means to prevent the publication of potentially infringing content, it would remain potentially liable for any illegality in the content, even though the illegality could not have been detected or addressed.

What is perhaps even more worrying is that MySpace’s attempt at proactively and in good faith preventing copyright infringement through its terms of use and in addressing them through its post-infringement measures was explicitly cited as evidence of  knowledge of and control over the uploading of copyrighted material, at the threshold rather than ex post. This creates perverse incentives for the intermediary to ignore infringement, to the detriment of rights holders, rather than act proactively to minimize its incidence.

A final observation is that the court’s use, while pronouncing on relief, of the fact that MySpace makes a “copy” of the uploaded content by converting it into a format that could subsequently be hosted on the site and made accessible to show evidence of infringement and impose liability upon MySpace in itself is a glaring instance of the disingenuous reasoning the court employs throughout the case. There is another problem with the amended section 79, which waives immunity where the intermediary “modifies” material. That term is vague and overreaches, as it does here: altering formats to make content compatible with a given platform is not comparable to choices as to the content of speech or expression, but the reading is tenable under section 79 as it stands.

The result of all of this is to dislodge the section 79 immunity that accrues to intermediaries and replace that with a presumption that they are liable, rather than not, for any illegality in the content that they passively host.

Effect of the Copyright (Amendment) Act, 2012

Since the judgment in the MySpace case, the Copyright Act has been amended to include some provisions that would bear on online service providers and on intermediaries’ liability for hosting infringing content, in particular. Section 52 (1) (b) of the amended Act provides that “transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public” would not infringe copyright. The other material provision is section 52 (1) (c) which provides that “transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy” will not constitute an infringement of copyright. The latter provision appears to institute a rather rudimentary, and very arguably incomplete, system of notice and takedown by way of a proviso. This requires intermediaries to takedown content on written complaint from copyright owners for a period of 21 days or until a competent rules on the matter whichever is sooner, and restore access to the content once that time period lapses, if there is no court order to sustain it beyond that period.

This post does not account for the effect that these provisions could have had on the case, but it is already clear, from the sloppy drafting of section 52 (1) (c) and its proviso that they are not entirely salutary even at the outset. At any rate, there appears to be nothing that *determinatively* affects intermediaries’ secondary liability, i.e., their liability for users’ infringing acts.


Disclosure: CIS is now a party to these proceedings at the Delhi High Court. This is a purely academic critique, and should not be seen to have any prejudice to the arguments we will make there.


[*]. Super Cassettes Industries Ltd. v. MySpace Inc. and Another, on 29 July, 2011, Indian Kanoon – Search engine for Indian Law. See http://bit.ly/quj6JW, last accessed on October 31, 201

Suspect’s sister apologizes for shooting of Malala


Rehana Haleem (left), who has apologised to Malala Yousafzai

Source: Independent | Andrew Buncombe

The sister of a man suspected of being involved in the shooting of the Pakistani teenage activist Malala Yousafzai has apologised for the attack, saying her brother has brought shame upon the family.

In an interview with a television channel conducted in the Swat Valley, Rehana Haleem said that the teenager who had fought for the right of young girls to be educated was like a “sister” to her. Her brother, 23-year-old Attah Ullah Khan, is one of three people police have indicated they are looking for in connection with the attack.

“Please convey a message to Malala, that I apologise for what my brother did to her,” Ms Haleem told CNN. “He has brought shame on our family.”

The young woman added: “What he did was intolerable. Malala is just like my sister. I’d like to express my concern for Malala on behalf of my whole family; I hope she recovers soon and returns to a happy and normal life as soon as possible.”

Malala, 15, was shot on 9 October as she and her classmates were on their school bus in the Swat Valley, which was under the control of the Taliban between 2007-09. Gunmen leapt aboard and demanded that the youngsters identify Malala. Three girls were shot – two of her friends who suffered non-lethal injuries and Malala herself who was struck by a bullet that passed through skin on her head and lodged in her shoulder. A Taliban spokesman claimed responsibility.

Amid the subsequent outcry, the Taliban sought to justify its actions, saying Malala had engaged with Western elements. They also blamed the media for its “negative” coverage of the shooting.

Malala, who first came to public notice when at the age of 11 she wrote an anonymous diary for the BBC during the period the Taliban held control of the Swat Valley, was rushed to hospital where doctors operated to stabilise her and to remove the bullet. Once it became clear she would require extensive rehabilitation she was flown to Britain, where she is undergoing treatment at the Queen Elizabeth Hospital in Birmingham.

It was reported this week that Pakistan’s President, Asif Ali Zardari, spoke with officials at the hospital for an update on the teenager’s condition and was told she was gradually improving.

Ms Haleem told CNN that security forces searched the family home a day after the attack and that the family was detained. She was pregnant and was subsequently released but her husband and other relatives remain in custody. Speaking from Warhi Mast Malik Abad, a village on the outskirts of the city of Mingora, where the attack on Malala took place, she said she had little doubt that her brother was involved in the shooting.

“If he was innocent, he would have come back and claimed he was innocent,” she said. “His behaviour is that of a guilty man. How could he abandon us?” Police said last month that they had arrested six men in connection with the shooting but were still searching for Mr Khan.

 

HathiTrust Judgment and its impact on the Treaty of Visually impaired #copyright


The Hathitrust Judgment and its impact on TVI negotiations at WIPO

 

by Rahul Cherian at Oct 30, 2012 1 |

Those of you who have been following my earlier posts on the WIPO negotiations on the Treaty for the Visually Impaired will remember that one of the biggest concerns of the World Blind Union on the draft wording of the Treaty was with the definition of an “authorized entity” that can undertake conversion and distribution of accessible format copies.

Before the WIPO intersessionals began on October 17, 2012, the definition of “authorized entity” in the draft Treaty prescribed that only authorized entities that address the needs of beneficiary persons as one of their primary (in brackets) activities or institutional obligations can undertake conversion and distribution of books in accessible formats. This requirement is unacceptable since it will exclude many legitimate organisations and institutions that undertake these activities but who do not address the needs of beneficiary persons as a “primary” activity or institutional obligation. Some examples of such organisations/institutions are mainstream education institutions and mainstream libraries. Delhi University which has a large number of blind students will be excluded and this is unacceptable.

The main proponents pushing for the word “primary” was the United States and the European Union while India and other developing countries wanted the word to be deleted for obvious reasons. There was a virtual deadlock in the negotiations on this particular point.

The United States was pushing for the word “primary” because under US Copyright law, an authorized entity means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities. Under US law there was uncertainty as to whether educational institutions and libraries would be covered under the definition of “authorized entity”.

Enter the HathiTrust Judgment http://www.tc.umn.edu/~nasims/HathivAG10_10_12.pdf. The judgment, which was pronounced a few days before the October WIPO intersessionals by the New York Southern District Court, held that libraries and educational institutions fall under the definition of “authorized entities” under US law.

The US delegation to WIPO was instantly alerted about this judgment and was requested to negotiate broader wording for authorized entities under the Treaty as was now the position under US law.

At the intersessionals that concluded on October 19, as observers, we were not allowed into the room and the discussions were happening between the Member States but at the end of the intersessionals this is the proposed wording of authorized entity:

Authorized entity means an entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis.  It also includes a government institution or non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations.

As can be seen from above, this definition is broader than the previous definition since the word primary has been deleted from the main definition and it explicitly covers educational institutions and libraries. It is also interesting to note that even for profit entities that provide the above services on a non-profit basis to beneficiaries are covered.

It remains to be seen what form the definition of authorized entities will take but the HathiTrust judgment has definitely helped in the negotiation process.

The next meeting of the Standing Committee on Copyright and Related Rights takes place in Geneva between November 19 and November 23, 2012.

See my earlier posts on the WIPO negotiations.

Document

 

The real truth about the Koodunkulam Nuclear Power Plant #mustwatch


English: Construction site of the Koodankulam ...

English: Construction site of the Koodankulam Nuclear Power Plant Deutsch: Baustelle des Kernkraftwerks Kudankulam (Photo credit: Wikipedia)

 

The real truth about the Koodunkulam Nuclear Power Plant with its history and the people’s continuous protests. Great work by the NDTV team.  Join againnst the nuclear power in order to save the lives and livelihood of the people. kindly pass this video and share it in your blog and Social networks in order to spread the awareness.

 

Thousands of fishermen from 40 villages around the Kudankulam Nuclear Power Plant in Tamil Nadu have surrounded the area from about 500 metres in the sea and are shouting slogans to protest against the plant. This is a token seige of the plant, since they will not be allowed by policemen to get any closer. Activist SP Udhayakumar, who is spearheading the anti-plant protests, today said in their next action, protestors would lay siege to the Tamil Nadu Assembly in Chennai on October 29.

 

 

 

The Hindu: It’s time to behave! #advertising


reporter nameAnindita Sarkar, afaqs!, Mumbai,http://www.afaqs.com/
November 02, 2012 Section: News Category: Advertising

While The Hindu continues to target the youth, in its latest television commercial it turns the spotlight on Indian politicians and focuses on the poor example of governance that is being set by them for the new generation.

Beat up your children and they will think it’s the norm. Fight before the young and they will learn to do it better. Break chairs in the midst of solving national issues and the youth will trust that it’s precisely how the country is run. And so, behave.

The Hindu TVC

This is the insight The Hindu’s latest ad is based on. After an entire campaign run which involved The Hindu and The Times of India taking shots at each other, the Chennai-based national daily has launched a fresh ad campaign that urges the nation’s leaders to conduct themselves well.

While the broadsheet continues to target the youth with the campaign, taking off from where it left in its previous communication, this time around it tries to ‘behave’ more inclusive.

In its latest television commercial, the daily turns the spotlight on Indian politicians and focuses on the poor example of governance that is being set by them for the new generation.

Even as it stirs up a conversation that is really affecting the youth, the campaign decides to talk through those who are the source of that very conversation.

Conceptualised by Ogilvy India, the film is set in a classroom. The TVC opens with the professor asking his students to debate the rural development bill; and yes, he seeks ‘proper parliamentary behaviour’. The house is set open wherein two groups of students are pitted against each other. Very soon, the situation turns chaotic. Furniture breaks, books fly, faces are punched. Eventually, as an instrumental version of poet Narsinh Mehta‘s ‘Vaishnava jana to’ (a bhajan endorsed by Mahatma Gandhi during his daily prayer) takes over the screaming disorder, the ad ends with the note, ‘Behave Yourself, India. The Youth Are Watching’.

The insight

While The Hindu wanted to continue its dialogue with the youth, it was also keen to build a mechanism that would allow the daily to extend a thought that could raise many more pertinent issues.

Piyush Pandey
Suresh Srinivasan

And that is when the idea made its way. Piyush Pandey, executive chairman and creative director, South Asia, Ogilvy says that the idea occurred while he was disturbed by something he saw on television. What followed is The Hindu TVC that he wrote.

“The insight is very simple and comes from our everyday lives. It asks us to behave wisely because it will impact the way our children will conduct themselves. The ad tries to talk sensibly to the largest target group of this country (the youth) through an idea, which is much larger and therefore, the positioning becomes much wider now,” says Pandey.

Joono Simon, ECD (South) Ogilvy worked in close collaboration with Pandey to conceptualise and create the campaign.

‘Behave Yourself, India. The Youth Are Watching’ can easily change tone and talk about social injustice, intolerance, attitude toward senior citizens, or even address the current economic divide without taking much away from the classroom scene. But to begin with, The Hindu chose to speak about the politicians.

“A vibrant democracy requires participation of the youth predominantly and in today’s era, the lack of political icons is the bane of the country; the youth of today do not see strong icons to emulate in comparison to the heroes of yesteryears. The Hindu exposes this stark contrast of leadership, and is set to the pulse of the youth and their resentment with today’s governance,” says Suresh Srinivasan, vice-president, advertisement, The Hindu Group of Publications.

“Our previous campaign was not just a reaction to TOI; it was to propagate a story that was begging to be told. Showcasing the horror in junk news consumption and re-establishing that knowledge is the ‘new cool’. This campaign, like the previous one, is also set to the pulse of the youth and strengthens our positioning as a vibrant and aggressive brand,” he adds.

The film that is already being shared and talked about extensively on social networks is being supported by digital and cinema promotions. The print campaign too shall be launched shortly.

The insight-execution translation

Jitender Dabas
Ashwiny Iyer Tiwari

For Jitender Dabas, executive vice-president and head of planning, McCann Worldwide, the ad is a ‘populist’ commercial. According to him, newspapers playing the voice of conscience of the society or holding the mirror to the society is one of the most obvious brand strategies in the newspaper/media category and bashing the politicians is the best way to take a populist moral high ground in our society today.

“So, I see this ad getting very popular in urban India very soon and generating a lot of conversations. It will perhaps also enhance the stature of brand ‘The Hindu’. But will it ever succeed in getting the young, whose cause the newspaper seems to espouse or who are watching this ad on social media, to pick up a copy of ‘The Hindu’? I am not so sure. What surely works for the ad is great monochrome execution and the choice of music,” he says.

According to Ashwiny Iyer Tiwari, executive creative director, Leo Burnett, a newspaper stands for what is happening in the country at that moment. “And if the dynamics of the country is changing, it is only right to strategically portray what the current scenario is. We always say that we should be a living example for our children but our country’s so called political oldies with their tantrums are exactly the opposite. The insight has been very clearly communicated. Like the way the professor is shown — a middle aged man who does not have any point of view like many in our country and will still look in doubt as if nothing has happened.”

 

Manipur- No country for ‘outsiders’


The Telegraph
Wednesday , November 7 , 2012
Image
home rule: Many Manipuris feel the ILPS will protect their interests

Ramji was barely 14 when he landed in Imphal looking for employment. Originally from Bihar’s Sitamarhi district, Ramji, now 44, initially worked as a daily wage earner before starting his own cement shop in 1997. But he may have to wind up his business and go back to his village.

That’s because the Manipur government wants to introduce the Inner Line Permit System (ILPS), a mechanism which allows people from other states to stay in Manipur for a limited period of time and that too with a permit. In July this year, the Manipur Assembly passed a resolution to that effect unanimously.

The ILPS comes under the purview of a central law ‘ the Bengal Eastern Frontier Regulation (BEFR), 1873, legislation introduced by the British to control business in what was then called the Bengal Eastern Frontier. An Inner Line Permit (ILP) is also required by people from other states when they go to Mizoram, Arunachal Pradesh and Nagaland (except Dimapur). The permit allows them to stay in the state for a period of 15 days to six months. The measure was introduced in a bid to protect the interests of the tribal communities in the region.

But the Union home ministry has rejected Manipur’s proposal to extend the ILPS to the state. In September, home minister Sushil Kumar Shinde said, “Our Constitution will not allow such things.” A senior home ministry official adds, “There is no rationale for the state to seek restrictions on the entry of Indians under an outdated law.”

But locals allege that “outsiders” are marginalising the natives. “People are being robbed of land and employment by the settlers. We cannot let this continue any longer,” says Mutum Churamani Meetei, co-convener of the Joint Action Committee (JAC), a collective of 20 non-political groups advocating the ILPS.

There are about 9 lakh Mayangs or “outsiders” in Manipur out of a total population of roughly 27 lakh. Mostly from Bihar and Uttar Pradesh, they work as construction workers, carpenters and porters. There are also other communities such as Punjabis, Gujaratis and Marwaris, who have been settled in Manipur since the early 20th century and run businesses in hardware, cement, marble and so on.

The introduction of the ILPS would spell doom for people like Ramji. “Last year, around 25 Bihari labourers left in fear. But we will continue to stay,” says Ramji, who lives in Imphal with his wife and three children and earns about Rs 5,000 a month.

Although the Manipur government is in favour of slapping on the ILPS, constitutional experts say that according to Article 19(1)(d) and (e) of the Constitution, every Indian citizen has the right to move freely throughout the territory of India and also to reside and settle in any part of the territory of India.

A senior state government official also points out it’s the Centre that has to give the go-ahead for the ILPS. “We cannot implement the ILPS unless the Centre gives its nod.”

Not so, says advocate Khaidem Mani, stressing that the state is legally empowered to make its own laws without seeking the permission of the Centre. “Article 19(5) of the Constitution states that nothing shall prevent the State from making any law with reasonable restrictions in the interests of the general public,” he says.

But constitutional expert Subhash Kashyap says that “State” should be read as Union of India, and not as a state legislature. Mani has a counter-argument. He says, “Under Article 12 in the Constitution, ‘State’ also means the government and the legislature of each of the states.”

While the debate rages, Kashyap warns that President’s rule can be imposed on Manipur if it doesn’t comply with the directions of the Centre. “Under Article 365 and 356 of the Constitution, if the President is satisfied that the state has failed to comply with the directions of the Union and a situation has arisen where the government of the state cannot be carried on in accordance with the provisions of this Constitution, he can impose President’s rule,” he cautions.

But clearly, the Manipur government has dug in its heels and is refusing to budge. The ILPS issue is likely to be raised again in the winter session of the state Assembly. And Manipur government sources say that chief minister Ibobi Singh will try and persuade the Centre to reconsider its proposal.

This is not the first time that migrants are being targeted in Manipur. In 2008, 14 migrant labourers were gunned down by militants. Government sources say that it’s the militant groups that have been pushing political parties to implement the ILPS in Manipur. In fact, this time too militants have set a December 31 deadline for the “outsiders” to leave.

Though the BEFR was never in place in Manipur, a different permit system for outsiders was, and it was abolished only on November 18, 1950. “That’s the reason we want to keep this as the cut-off date to decide the domicile status of the people. All those who entered the state after this date would require an ILP. They would have no right to purchase land or property in the state,” says Meetei. What’s more, land and property owned by people who came in after the proposed cut-off date would have to be handed over to the state.

However, some say this is an illogical demand. “Unfortunately, this anti-outsider sentiment is politically motivated. This is harming the image of Manipuris outside the state,” says Amar Yumnam, who teaches at Manipur University.

Social scientists too argue that the ILPS is out of place in a globalised world. “Many Manipuris are moving out of the state in search of work. It is infantile to close Manipur’s door to residents of other states,” says Bhagat Oinam, associate professor, Jawaharlal Nehru University. Oinam, however, believes that there should be some restrictions on people from other states wanting to buy land there.

Ironically, Manipur’s move comes at a time when states where the ILPS is in force are having second thoughts about continuing with it. “We don’t have the mechanism to keep a check on every migrant. Even though outsiders enter the state with an ILP, it is not always possible to know if they are overstaying,” says Nagaland chief secretary Lalthara. Another senior Nagaland government official admits that many benami (illegal) properties have also been bought by “outsiders”, which proves that the ILPS has not had much effect.

But in Manipur there is now a groundswell of sentiment in favour of the ILPS and few are willing to listen to the other side of the argument. “Only the ILPS can ensure that we are not swamped by outsiders,” asserts Manipur People’s Party leader Okram Joy Singh.

No wonder settlers like Ramji are afraid.

 

Bombay HC-slams cops for insensitive report- Shelter Home Horror #Rape #Vaw


Mankhurd shelter home horror

Appoints a three-member committee for a fresh probe into allegations of negligence, sexual abuse and torture

Yogesh Sadhwani

Posted On Tuesday, November 06, 2012

A week after Mumbai Mirror reported on allegations of rape, negligence and torture at the state-run shelter for women, Navjeevan Mahila Vasti Gruh, Bombay High Court disapproved the probe report submitted by deputy commissioner of police, Crime Branch, on grounds that it lacked sensitivity.

DCP Ambadas Pote, in his report, denied allegations made by an inmate of the Mankhurd home, in the interview carried by Mumbai Mirror on October 29.

Expressing surprise at the report, HC has now appointed a three-member panel to probe the allegations afresh.

The panel comprises Dr Asha Bajpai from Tata Institute of Social Sciences, renowned counsellor Dr Harish Shetty, and Rashmi Karandikar, superintendent of police.

In his report, Pote stated that his Special Investigating Team recorded statements of around 100 persons, including staff, inmates, social workers who routinely visit the home, and police personnel, and that none of them mentioned sexual abuse. He also stated that the inmates were given adequate food and were well taken care of.

Pote’s report was filed in HC, which is hearing a suo moto PIL after receiving an email from activist Purnima Upadhyay, who feared for the safety of women after reading the interview of an inmate who had escaped on October 27.

While government pleader Dhairyasheel Nalavade claimed that no such incidents occurred at the home, advocate Shubhada Khot, the amicus curie, pointed out several flaws in investigation.

The division bench of Chief Justice Mohit Shah and Justice Nitin Jamdar said that the investigation was carried out in an insensitive manner. “Where are the women now? Are they still under the same caretakers?” asked HC. When informed that the women were indeed under the same caretakers, HC said, “Tell us, what action are you taking against the caretakers referred to by the woman?”

The bench stated that the police officer merely looked at the specific allegation of “armed men barging into the home, randomly picking up girls and raping them at knife-point”. The court pointed out that the video-taped interview revealed that rowdy elements would visit the premises and on their request woman caretakers would ask inmates to go out with them. Those who dared refuse, were tortured.

“What does this mean, what more you want?” the judges asked Nalavade, expressing surprise that no FIR was registered. “One statement of one witness is sufficient to lodge an FIR, this statement contains more than sufficient material.”

Further pointing out that “apparently many wrong things are going on there” HC stated that the “State authority should have appointed a sensitive person to investigate such a case”.

Meanwhile, in his affidavit, Ujjwal Uke, principal secretary, Women and Child Development Department, admitted that with a capacity for 100, the home which had 298 inmates, was overcrowded. He admitted that around 100 women continue to languish there despite release orders, due to lack of escorts to send them home.

The next hearing is on November 26.

 

Haji Ali dargah trustees defends restricting women’s entry, activists protest #discrimination


DON’T COMPARE HAJI ALI WITH MECCA, SAYS TRUSTEE

‘This is a dargah, and women aren’t allowed in cemeteries’

Suhail Khandwani, trustee of the Mahim and Haji Ali dargahs, defends the rule that places restrictions on women

 Nov 6, 2012 Jyoti.Punwani @timesgroup.com , Mumbai Mirror

The decision of the trustees of the Mahim and Haji Ali dargahs to ban women from entering the mazaar (inner sanctum) has drawn a sharp reaction, even from within the community.
“Muftis are turning Talibani,” some sufis who visit dargahs regularly have said, while Islamic Scholar Asghar Ali Engineer has pointed out that no ban on women entering mosques or mausoleums exists either in the Koran or the Hadees. However, Suhail Khandwani,trusteeoftheMahimand Haji Ali dargahs, defends the recent rule that prohibits women from going up to the mazaar, terming it a belated improvement on existing tradition.
Whythisnewrule?
Earlier women were allowed in both Haji Ali and Mahim dargahs right up to the mazaar. Then the management changed. We were informed by our Mufti Mehmood Akhtar Raza thatunderShariahlaw,womenwere not allowed. So we created a space two feet away where women can pray. Seventy to 80 % women have said they are fine with this. I had thoughtpeoplewouldsay:whynot? I’m surprised the question being asked is: why?
But the big question remains – whynow?
Improvements can take place at any time. We tried to implement the Islamic law as soon as we learnt about it.
But Islamic scholars say that there is nothing in the Koran about women not being allowed. In fact, according to Asghar Ali Engineer, Prophet Mohammed has said: ‘Don’t stop the female servants of Allah fromenteringAllah’shouse.’
Is Mr Engineer a mufti who can pronounce a fatwa? And this is not Allah’s house. You can’t compare it with Mecca. This is a dargah. Women are not allowed in cemeteries. We are not forbidding women – we are creating a separate space for them withinthepremises.Thatwayweare also protecting women. Often there’s too much rush, they are forced to mix with men. That’s also notgood.Youknowwomenaresupposed to be accompanied by their sons or husbands when they travel.
In SaudiArabia,not in India…
That’stheShariah,it’snotthatSaudi Arabia has invented it. If somebody starts practising it here, it’s a desirable thing. And the dargah is the right place to implement this.
Women may not find this desirable. In Mumbai, women are used to going to dargahs without men. As a trustee, shouldn’t you be respecting tradition instead of breaking it?
As a trustee, I am improving the existing tradition. And we are not beingrigid.Weareleavingthedecision to women. We are educating them gradually, we have not directly stoppedthem.AndinMahim,wearegetting a good response. People are getting convinced.
There’s a fear that tomorrow some mufti may say that unless you wear a veil, you won’t be allowed. Or that a non-Muslim may not be allowed.
No, nothing like that (will happen). We are a very secular trust. There’s no dress code, except that it must be respectful. Even men can’t go in without a cap.
There are progressive interpretations of the Shariah too. In moderntimestoforbidwomen–isn’tthatgoingbackwards?
If Shariah law does not permit something, we need to correct ourselves. As Muslims, we have to be guided by it.

Suhail Khandwani, trustee of Mahimand Haji Ali dargahs, tells Mirror how banning women from dargahs is justified
Haji Ali dargah restricts women’s entry, activists protest
HT Correspondent, Hindustan Times
Mumbai, November 06, 2012
Haji Ali dargah restricts women’s entry, activists protest

The Bharatiya Muslim Mahila Andolan (BMMA), a women’s group, plans to write to the state authorities over the restricted entry to women at dargahs in the city.

the sanctum sanctorum triggered their survey. Of the 20 city dargahs visited in September, seven did not allow women near the grave.

“When we asked with the trustees, we were told that the decision was taken after the authorities noticed that a woman came inappropriately dressed last year,” said Noorjehan Safia Niaz, founder, BMMA.

The dargah trustees said that the decision at the Haji Ali dargah was taken almost seven years ago.

“Eventually, this will be done in every dargah, as the Sharia law claims that no woman can visit a cemetery or a grave,” said Suhail Khandwani, trustee of the Haji Ali dargah and managing trustee of Mahim’s Makhdoom Shah Baba’s Dargah, where religious leaders have been educating women visitors about the law.

“We will write to minorities minister Arif Naseem Khan, the state minorities commission and the trustees of Haji Ali. They need to take steps to curb such a regressive trend,” said Niaz.

“Managements can’t run dargahs according to their whims and fancies,” said Hasina Khan, Awaaz-e-Nizwaan, an NGO.

Related articles