From rohit_de at hotmail.com Tue May 1 03:19:58 2007 From: rohit_de at hotmail.com (Rohit De) Date: Mon, 30 Apr 2007 21:49:58 +0000 Subject: [Commons-Law] A Supreme Court Judge on caste in judiciary In-Reply-To: Message-ID: Thanks Anuj for starting off this much needed discussion. There is a need to interrogate the notion of"pure merit" that seems to exist in public discourse. Interestingly Justice Pandian also points out the lack of women judges. There are none of the present Supreme Court. While he doesn't look at religious minorites, the presence of Muslim judges is also negligible, so its not surprising that we have decisons like Aruna Roy and the Aligarh Muslim University. This is interesting because the figures for the subordinate judiciary seem to be a little more equitable. I found some figures in the Sachar Committee report (p.173) which state that Muslim representation in the judiciary is 7.8%, OBC's constitute about 23% and SC/ST's about 20%. The Hindu General (their terms) is over represented in the judiciary with almost twice their share in the population and constitutes almost half of all those in the judiciary. Don't subordinate judiciaries implement reservations for women as well? So obviously there is no necessary contradiction between being a judge and affirmative action of some kind. It would be useful if someone had access to figures which could indicate how many judges are drawn from the bar and how many are drawn from the subordinate judiciary, and which ones make it to the Supreme Court. It would also be instructive to look what the background of lawyer turned judges are. Looking forward to responses. Cheers Rohit >From: "Anuj Bhuwania" >To: reader-list at sarai.net, commonslaw >Subject: Re: [Commons-Law] A Supreme Court Judge on caste in judiciary >Date: Wed, 25 Apr 2007 21:34:59 +0530 > >Sorry, the earlier link I had sent did not work. Its now available at: >http://www.altlawforum.org/Resources/judicial_nineties/pandian.rtf > >Anuj > >On 4/25/07, Anuj Bhuwania wrote: > > Hi, > > > > In the context of the breathtaking arrogance displayed by Justice > > Arijit Passayat of the Supreme Court in refusing to reconsider its > > erroneous order injuncting reservation for OBCs in Central educational > > institutions, and the rather different response from Chief Justice > > Balakrishnan yesterday, I think its high time we started discussing > > the caste character of the higher judiciary itself. Of course, broader > > social representation is not necessarily a pancea for the "judicial > > emergency" that increasingly seems to prevail in India. > > > > To initiate a discussion on this issue, I am giving a link below to an > > extract from an astonishing SC judgment, in the SCAORA case, the > > famous case where the SC gave itself the power to appoint judges of > > the higher judiciary in India. The extract is a separate concurring > > judgment filed by Justice Ratnavel Pandian. Pandian cited data > > regarding SC/ST and OBC judges in the High Courts and the Supreme > > Court, and reproduced them in his judgement to make his point. (By > > the way, J. Pandian is the same judge who gave the majority opinion > > upholding the constitutionality of TADA) . Apart from this, I am not > > aware > > of any recent data and this too is dated 1993, compiling the caste > > make-up of the higher judiciary in India. > > > > http://www.altlawforum.org/Resources/judicial_nineties/Pandian > > > > Anuj > > >_______________________________________________ >commons-law mailing list >commons-law at sarai.net >https://mail.sarai.net/mailman/listinfo/commons-law _________________________________________________________________ Best Hotel Deals. Click here Now http://ss1.richmedia.in/recurl.asp?pid=19 From jeebesh at sarai.net Tue May 1 10:28:50 2007 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Tue, 1 May 2007 10:28:50 +0530 Subject: [Commons-Law] Access to Knowledge - Two or A2K2, Yale Law School 2007 References: <94d7347e0704282119p44b2cc5cjc45508cc14a9189b@mail.gmail.com> Message-ID: <64FD592F-DC8D-452F-AF03-A547A8DD3E9E@sarai.net> Begin forwarded message: > From: "Satish Jha" > Date: 29 April 2007 9:49:48 AM GMT+05:30 > To: undisclosed-recipients:; > Subject: [arkitectindia] Access to Knowledge - Two or A2K2, Yale > Law School 2007 > Reply-To: arkitectindia at yahoogroups.com > > > The Second Access 2 Knowledge conference being held at Yale Law > School has been most interesting for me from several points of > view-- just to name a few.. I did not expect that the world of > academia had changed so much in a couple decades.. from the times I > studied in Cambridge, MA when even supporting United Nations from > outside the US perspective seemed a bit radical, I heard some of > the finest intellectual arguments why the US understanding of > freedom of expression, IP, trade etc was perhaps among the most > limited in its understanding.. Including in some of the debates > that the social movements in India are passionately engaged in, > some of the most fascinating arguments were brought up at the > conference. It seemed that the debate from the point of view of > what should be than what is and dissecting "what is" from the point > of view of where we would like to be heading. The efficient > posting of all the deliberations on the net through wiki was very > encouraging and can be accessed through the following URL: http:// > research.yale.edu/isp/a2k/wiki/index.php/ > Broadband_WiFi_in_Developing_Countries#Satish_Jha > > -- > _________________________________ > https://www.linkedin.com/in/satishjha > > From rajeevkadambi at hotmail.com Tue May 1 21:09:35 2007 From: rajeevkadambi at hotmail.com (rajeev khusro) Date: Tue, 01 May 2007 21:09:35 +0530 Subject: [Commons-Law] commons-law Digest, Vol 46, Issue 1 In-Reply-To: Message-ID: An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070501/e22ccc27/attachment.html From k.ravisrinivas at gmail.com Wed May 2 08:25:12 2007 From: k.ravisrinivas at gmail.com (ravi srinivas) Date: Wed, 2 May 2007 08:25:12 +0530 Subject: [Commons-Law] A Supreme Court Judge on caste in judiciary Message-ID: The case on AMU has nothing to do with the caste/faith of the judge(s). "The Hindu General (their terms) is over represented in the judiciary with almost twice their share in the population and constitutes almost half of all those in the judiciary. " This is rubbish because the constitution no where states that no. of judges from any religion should be in proportion to the respective share of that religion in the population. Petty minds can not think beyond caste and religion based reservations at all levels. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070502/31405d6b/attachment.html From the.solipsist at gmail.com Wed May 2 22:22:01 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Wed, 2 May 2007 22:22:01 +0530 Subject: [Commons-Law] SCOTUS on the "obviousness" test, and silly patents. Message-ID: <4785f1e20705020952h50fb3a65g91c7fbd7bca34c77@mail.gmail.com> Dear All, This article from Ars Technica provides a good overview of the recent SCOTUS decision on the "obviousness" test for patents. The case has had immediate effect on pending cases. (E.g., VoIP provider Vonage has asked the US Court of Appeals for the Federal Circuit to vacate a lower court judgment that it infringed on three Verizon patents. Vonage is asking for a retrial of the case that will take into account the Supreme Court's latest guidance on patent obviousness.) On the Verizon case: http://arstechnica.com/news.ars/post/20070425-analysis-verizons-voip-patents-drop-dime-on-need-for-reform.html http://arstechnica.com/news.ars/post/20070502-vonage-cites-scotus-obviousness-ruling-in-verizon-patent-fight.html On KSR v. Teleflex: http://arstechnica.com/news.ars/post/20070430-supreme-court-ruling-makes-obvious-patents-harder-to-defend.html Supreme Court ruling makes "obvious" patents harder to defend By Eric Bangeman | Published: April 30, 2007 - 12:38PM CT > > In a decision issued today, the US Supreme Court reinvigorated the > "obviousness test" used to determine whether a patent should be issued. > Ruling in the case of *KSR v. Teleflex > *, the Court found that the US Court of Appeals for the Federal Circuit, > which handles patent appeals, had not been using a stringent-enough standard > to determine whether a patent was infringing. > > At issue in *KSR v. Teleflex* is a gas pedal manufactured by KSR. The > pedal has an electronic sensor that automatically adjusts its height to the > height of the driver. Teleflex claimed that KSR's products infringed on a > patent it held. KSR said that Teleflex's patent combining a sensor and a gas > pedal was one that failed the obviousness test, and as such, should not have > been granted. > > Patent law appeared to be on KSR's side: 1952 legislation mandated that an > invention could not be patented if a "person having ordinary skill in the > art" would consider it obvious. KSR argued that the US Patent and Trademark > Office should have denied Teleflex's patent, as it only combines components > performing functions they were previously known to do. However, the Federal > Circuit had adopted a higher standard, ruling that those challenging a > patent had to show that there was a "teaching, suggestion, or motivation" > tying the earlier inventions together. > > KSR had plenty of support from the likes of Intel, Microsoft, Cisco, and > GM, while Teleflex's supporters included GE, 3M, DuPont, and a number of > other companies concerned that some of their patent holdings would be harmed > should the Court side with KSR. > > SCOTUS found KSR's arguments convincing, ruling that the Federal Circuit > had failed to apply the obviousness test. "The results of ordinary > innovation are not the subject of exclusive rights under the patent laws," > Justice Anthony Kennedy wrote for the Court. "Were it otherwise, patents > might stifle rather than promote the progress of useful arts." > > The Supreme Court also said that the Federal Circuit's conception of a > patent's obviousness was too narrow. "The Circuit first erred in holding > that courts and patent examiners should look only to the problem the > patentee was trying to solve," according to Justice Kennedy's opinion. > "Second, the appeals court erred in assuming that a person of ordinary skill > in the art attempting to solve a problem will be led only to those prior art > elements designed to solve the same problem." > > The end result is that Teleflex's patent has been invalidated and more > importantly, the Federal Circuit will now have to pay closer attention to a > patent's obviousness. That may be good news for Vonage in its appealof a court's decision that its VoIP service infringes > on three Verizon patents. > Our analysis of the patentsindicates that they, too, may fail the obviousness test. > > More importantly, the Supreme Court ruling is good news for a patent > system in dire need of fixing. New legislation introduced to Congressa couple of weeks ago is another attempt at a fix. The bill would streamline > the patent appeal process while switching the US patent system from a > first-to-invent to a first-to-file system. It would also cap the amount of > damages that could be awarded for infringing patents. > As an aside, do check out this amazing website on unbelievable silly patents granted by the USPTO: http://www.patentlysilly.com/ Cheers, Pranesh -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070502/a26685e9/attachment.html From the.solipsist at gmail.com Wed May 2 23:49:34 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Wed, 2 May 2007 23:49:34 +0530 Subject: [Commons-Law] DMCA raises its ugly head again. Message-ID: <4785f1e20705021119y618ca01cgb5f458cdb7b8f5c3@mail.gmail.com> Dear All, I had written previously about AACS being cracked [ http://mail.sarai.net/pipermail/commons-law/2007-February/002336.html, and http://groups.google.com/group/nls-ip/t/555a6c5f534c7c80], but it seems that lately copyright issues are hampering the spread of that code (anyone remember DeCSS?) Just to refresh your memory, 09-f9-11-02-9d-74-e3-5b-d8-41-56-c5-63 was the processing key that arnezami (on Doom9) uncovered, which spelt the doom (pun unintended) of AACS as it is currently implemented. However, it has now reappeared in discussions online because AACS LA has threatened Google with a cease-and-desist notice, and Digg.com removed all posts that mentioned the above processing key, and suspended the members who did the posting. (They have since stopped doing that: read on for details.) I present below a sequence of events. 0. Google receives a cease-and-desist notice from Advanced Access Content System Licensing Administrator, LLC (AACS LA), via Proskauer Rose LLP, New York, NY, 10038, USA, noting that some sites hosted on their servers are infringing the DMCA. (Amongst others: http://uscpwned.blogspot.com/2007/02/holy-grail-located-hd-dvd-and-blu-ray.html| http://linuxnotes.blogspot.com/2007/02/09-f9-11-02-9d-74-e3-5b-d8-41-56-c5-63.html| http://simonsta.blogspot.com/2007/02/lost-meets-aacs.html | http://cronicasredux.blogspot.com/2007/02/crypto.html.) The entire notice is available here: http://www.chillingeffects.org/notice.cgi?sID=3218 1. On April 27th, Google asks a Google Notebook user called entangledstate to remove an entry from their service. (Exhibit 1 available at http://google.com/notebook/public/08633028492915060796/BDQY4SwoQx7zM7bMh#SDR-pLAoQlael2_4h) So, he created a blog called "Spooky Action at a Distance" (an Einsteinian reference to quantam mechanics) at (formerly) http://entangledstate.wordpress.com/ (view the Google cached version at http://72.14.209.104/search?q=cache:oAljKxLXz4UJ:entangledstate.wordpress.com/+spooky+action+at+a+distance+digg&hl=en&ct=clnk&cd=2&gl=in&client=firefox-a ) (what irony that Google enables this!). 2. On April 30th, a Digg user named RuddO (http://rudd-o.com) wrote up an article about it (called "Spread This Number") and posted it online (and it has gone on to become the second-highest dugg story ever (as of today)). The story was taken down and RuddO was blocked. Everyone else who subsequently tried to post the same article was blocked too. (Read an account of these events at http://rudd-o.com/archives/2007/05/02/stickin-it-to-the-man-the-illustrated-report-of-an-epic-event/). (Read the original story itself at http://rudd-o.com/archives/2007/04/30/spread-this-number/) 3. A campaign starts building up, and people start linking to articles about the censorship, and posting about the ban on other sites (e.g., Censoring a Number and Digg.com Attempts To Suppress HD-DVD Revolton Slashdot), prompting Jay Adelson of Digg.com to post this (at 1300 hrs on May 1) as response as to why Digg was pulling down those posts: http://blog.digg.com/?p=73. A few hours later (at 2100 hrs), Digg's founder Kevin Rose posts this: http://blog.digg.com/?p=74, effecting a complete reversal. Other things of note: * On February 13th itself, Wired decided that it wouldn't publish the key: http://blog.wired.com/gadgets/2007/02/the_new_hddvdbl.html * There is even a blog at http://09-f9-11-02-9d-74-e3-5b-d8-41-56-c5-63.com/ * As noted in the Slashdot post, "Search Googlefor a broader picture; at this writing, about 283,000 pages contain the number with hyphens, and just under 10,000 without hyphens. There's a song. Several domain names including variations of the number have been reserved." (Interstingly, there are also many songs including all of DeCSS in their lyrics.) It will be interesting to see how Google proceeds with this case from here. I'll post about it if I see anything new. Cheers, Pranesh P.S. For those who care, Jack Valenti died on April 27th. While in his earlier days he championed Hollywood's anti-censorship movement, he is most remembered now for being a figurehead for the DMCA and IP-expansionism. And also held the belief that copyrights should last forever minus a day. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070502/706651d4/attachment.html From the.solipsist at gmail.com Thu May 3 20:18:35 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Thu, 3 May 2007 20:18:35 +0530 Subject: [Commons-Law] Fred von Lohmann on 09 f9 Message-ID: <4785f1e20705030748w6e9f5e13p6f147e21d9993183@mail.gmail.com> Dear All, Fred von Lohmann, with his usual effortless manner, explains the basics of the DMCA and why "09 f9 11 02 9d 74 e3 5b d8 41 56 c5 63 56 88 c0" is causing such a problem, in the backdrop of the 2600 case. Section 1201, if I remember right (from the course that Shyamkrishna Balganesh took). [from the EFF Deep Links] 09 f9: A Legal Primer May 02, 2007 As was reported back in February, an enterprising hacker unearthed and posted one of the decryption keys used by AACS to decode HD-DVD movies (other keys and exploits have been made availablein the weeks since). Now the AACS-LA (the entity that licenses AACS to makers of HD-DVD players) has set its lawyerson the futile mission of trying to get every instance of at least one key (hint: it begins with 09 f9) removed from the Internet. Predictably, this legal effort has backfired, resulting in eternal Internet fame for the key in question. In addition to having been posted on hundreds of thousands of web sites (and resulting in the temporary shutdown of Digg.com), the key has already spawned a song, a quiz, a domain name, and numerous T-shirts. So now might be a good time to review a few of the basic legal issues raised by the posting of the keys. (This is an overview of the legal landscape, not legal advice, and I am not expressing any view about how a case might come out if AACS-LA sued anyone.) *What is the AACS-LA's argument?* In its takedown letters, the AACS-LA claims that hosting the key violates the DMCA's ban on trafficking in circumvention devices. The DMCA provides that: No person shall ... offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof that that - (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. The AACS-LA presumably would argue that the key is a "component" or "part" of a "technology" that circumvents AACS. Moreover, AACS-LA would likely argue that the key was "primarily ... produced" to circumvent AACS, that is has no other commercially significant purpose, and that it is being "marketed" for use in a circumvention technology. The takedown letters seem to take the position that both the poster and the hosting provider are engaged in "trafficking." The AACS-LA will also doubtless point to the DMCA casesbrought against 2600 magazine for posting the DeCSS code back in 2000 (EFF was counsel to the defendant). In that case, both the district courtand court of appealsconcluded that posting DeCSS to a website violated the DMCA. *Who can sue over the posting of the key?* The DMCA entitles "anyone injured by a violation" to bring a civil lawsuit seeking damages (including statutory damages ranging between $200 and $2500 for each "offer"). In addition, if a person violates the DMCA "willfully and for purposes of commercial gain," a federal prosecutor could bring criminal charges(with the famous exception of the Sklyarov case , however, criminal prosecutions have generally been limited to situations where the DMCA violation was also accompanied by evidence of commercial piracy). *What about just linking to a place where the key is posted?* The courts in the DeCSS case wrestled with the proper test to apply when someone links to a location where a circumvention tool can be found. Ultimately, the district court held that an injunction against linking could be issued after a final judgment if a the plaintiff could show, by clear and convincing evidence, "that those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology." The court of appeals upheld that ruling, while admitting that the issue presented a difficult First Amendment question. *What about the DMCA safe harbors?* While no court has ruled on the issue, AACS-LA will almost certainly argue that the DMCA safe harbors do not protect online service providers who host or link to the key (the AACS-LA takedown lettersdo not invoke the DMCA "notice-and-takedown" provisions, nor do they include the required elements for such a takedown, thereby signaling the AACS-LA position on this). The DMCA safe harborsapply to liabilities arising from "infringement of copyright." Several courts have suggested that trafficking in circumvention tools is not "copyright infringement," but a separate violation of a "para-copyright" provision. It's difficult to say how a court would rule on this question, but it does create a specter of monetary liability for hosting providers, even if they otherwise comply with the "notice-and-takedown" procedures required by the DMCA safe harbors. *Is the key copyrightable?* It doesn't matter. The AACS-LA takedown letteris not claiming that the key is copyrightable, but rather that it is (or is a component of) a circumvention technology. The DMCA does not require that a circumvention technology be, itself, copyrightable to enjoy protection. For more information about the continuing melt-down of AACS generally, as well as details regarding the various keys and how they interact, be sure to read the coverage on Doom9's forums, Freedom to Tinker , and Engadget, which have been doing the best job reporting on developments. Posted by Fred von Lohmann at 09:36 AM | Permalink| Technorati -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070503/b58bdc7f/attachment.html From rohit_de at hotmail.com Thu May 3 23:04:14 2007 From: rohit_de at hotmail.com (Rohit De) Date: Thu, 03 May 2007 17:34:14 +0000 Subject: [Commons-Law] A Supreme Court Judge on caste in judiciary In-Reply-To: Message-ID: "This is rubbish because the constitution no where states that no. of judges from any religion should be in proportion to the respective share of that religion in the population." Reservations are not always the natural conclusion of questions of diversity and lack of representation. There are no reservations on the Constitutional Court of South Africa, yet the judiciary has a careful mix of Blacks, Whites and Indians, Christians and Muslims and almost half the bench of composed of women. As for the AMU case, the Allahabad judgements reflected a poor understanding of law and a certain mindset which failed to appreciate the historic role that the AMU had played in creating Muslim middle classes in India. >From: "ravi srinivas" >To: commons-law at sarai.net >Subject: [Commons-Law] A Supreme Court Judge on caste in judiciary >Date: Wed, 2 May 2007 08:25:12 +0530 > >The case on AMU has nothing to do with the caste/faith of the judge(s). >"The Hindu General (their terms) is over represented in the judiciary with >almost twice their share in the population and constitutes almost half of >all those in the judiciary. " > >Petty minds can not think beyond >caste and religion based reservations at all levels. >_______________________________________________ >commons-law mailing list > >https://mail.sarai.net/mailman/listinfo/commons-law _________________________________________________________________ Mega Airfare Sale. Click here Now. http://ss1.richmedia.in/recurl.asp?pid=18 From lawrence at altlawforum.org Thu May 3 23:49:07 2007 From: lawrence at altlawforum.org (Lawrence Liang) Date: Thu, 03 May 2007 23:49:07 +0530 Subject: [Commons-Law] The Impossibilty of Satire Message-ID: <463A279B.5090800@altlawforum.org> Hi All I attended the hearing of the ongoing Kalyan Sanstha case in the Delhi high court and made some notes which i wanted to share Lawrence The first impulse that one has after coming out of a court hearing is to create a satire that accurately captures the slightly bizarre and terrifying vision of judges that one has had a chance to experience. But can caricature really live up to its responsibility of laughing truth to power? John Beger has said that “Graphic caricature is dead because life has outstripped it. Or more accurately, because satire is only possible when a moral reserve still exists, and those reserves have been used up. We are too used to being appalled by ourselves to be able to react to the idea of caricature”. So instead of imposing an impossible goal for satire, let us allow the court speak for themselves. I attended a hearing in the ongoing case of Kalyan Sanstha Social welfare Organization v. Union of India which deals with the question of encroachments on public land. As many of you are aware, the Delhi high court has in recent times, turned its zealous gaze on the massive encroachments on public lands which are resulting in ‘massive losses to the exchequer’. Their answer has been to appoint a monitoring committee and a large number of court commissioners who report on encroachments in various parts of the city. The matter that I was interested involves the Sanjay Basti, near civil lines, which consists of almost 2000 dwelling units. On 9th February 2006, the Monitoring Committee in its 8th Report referring to the “encroachment” at Sanjay Basti recommended that the High Court direct the CPWD to take action at once to remove these encroachments and ask them to give reasons for not taking any action so far and submit a compliance report on the next date of hearing. Pursuant to this, the high court passed an order dated 14.02.07 directing all concerned authorities to file action taken reports, with particular reference to the observations made by the Monitoring Committee. On 1st March 2007, a notice was pasted on one of the shop-cum-jhuggis on Timarpur Road. However, when residents enquired as to why and on what basis such notice was issued they were not given any information by Police or CPWD officials. None of the mandatory statutory requirements of Public notice under Section 30 of the DDA Act, such as individual notice, statement of reasons were complied with and the shop-cum-jhuggi dwellers given opportunity to show cause. On 6th March 2007, about 40 shops along the Timarpur Road, were demolished. Several residences, which were attached to the shops were also demolished in the process. Persons were not allowed to remove their belongings from the premises before the demolition and lost their belongings and means of livelihood. The Demolition team which comprised of members of the CPWD, MCD and NDPL was accompanied by two local political leaders and after the demolition another local political leader came to the site and made a public speech stating that the jhuggis would be brought down. The Sanjay Basti matter has been impeded with the mammoth Kalyan Sanstha Social Welfare Organisation case which involves almost all the ongoing demolition matters. The hearing began with an extended report by one of the court appointed commissioners on the status of illegal farm houses which violated building norms which stipulate that the maximum built up area for a farm house cannot exceed 1500 square feet, where as some of these farm houses had in fact exceeded this figure many times over. The commissioner produced photographic evidence of the blatant violations that were taking place and demanded that the court direct the officials of the MCD to take immediate action. What was interesting to note was the majestic manner in which the objectivity of the law was being played out. Anatole France’s famous dictum that the law prohibits the rich and the poor equally from sleeping under bridges was being given flesh and blood by the almost farcical manner in which a case involving the demolition of massive luxury farm houses and bastis were clubbed together. When faced with the accusation of being anti poor, the judiciary has in fact been quick to remind us that it is not just the houses and shops of the poor which are being targeted by encroachments by the rich as well. A similar line has been followed in Bangalore as well, where sealing drives have begun in the elite spaces of the city before moving into the poorer parts of the city. It is thus able to invisibilizes the differential impact that law has on different classes, and preserves the myth of its own objectivity. Another thing that struck me was the immense cartographic authority that the court wields; as reports from various parts of the city are brought to their notice, the judge links them using his invisible measuring tape of legality ( This area is off by fifty degrees while this one by seventy). It constantly strikes me that the interpretative task of the judge, which also provides him with his sense of the social world and for the city must be such a depressing one. If all one had to view life and urban experience are legal lenses, the view can only be an impoverished one. While one feels anger and outrage at some of the outrageous orders, one cannot but feel a certain pity at the impoverished lives that judges lead. In our greatest moments of anger and frustration at the inequalities of class and the arrogance of power, it is perhaps worthwhile to remember that Howard Hughes, at one time the richest individual, died of starvation. So to return to the case, the discussion on hospitals and farmhouses took u most of the afternoon and there wasn’t even a chance of Sanjay basti matter to come up ( never mind that the demolition had been slated for a few days later). The only respite from the overcrowded court room and the constant whining of the air conditioner and the court commissioners came towards the end of the day with two explosive exchanges that can only be terms in filmi language as paisa vasool. A senior advocate who had started his arguments in a very soft spoken and tentative manner slowly built up into an appropriate operatic crescendo, thundering at the judges that their orders were converting Delhi into a police state. The judge’s calm response was to inform him that if he wasn’t happy with the orders of the court then he could go elsewhere. It was not clarified where this elsewhere was. But it does seem clear that the judge’s because of their vast cartographic experience do have a very good sense of an elsewhere which is better. Recall Ruma Pal’s query in the Nangla Manchi hearing “if they cannot afford it why do they come to the city”. The mysterious elsewhere resurrects itself again. I was outside the ear shop of the lawyer otherwise I would certainly have suggested that he try his luck with the gatekeeper in kafka’s parable about the law. But it is probably best that I could not offer this suggestion or else I would have run the risk of violating my own rule against satire, and in the current atmosphere one does not want to risk being within the breathing space of any mode of illegality. The second part of the Paisa vasool saw a not so soft spoken lawyer having a duel with the judges on the merit of his voice, the quality of acoustics in the high court and the advantages of remaining standing. This lawyer, particularly agitated by the fact that the judges seemed to listen only to the court commissioners and not anyone else demanded the attention of the ear by the tested and respected strategy of raising ones voice. And we then learnt that it is not violence which is the sole monopoly of the law, but also all sound exceeding a particular decibel. The lawyer who was ‘encroaching’ the acoustic space of the judiciary was asked to lower his voice. His defense that this was his natural voice, and that it could not be changed, even at the dictate of a judge was not acceptable to the judges. Fearing a fatal heart attack, the judges, in a moment of concern the ordered him to sit down, but this offer was also declined and the lawyer instead chose to remain standing as he delivered his tirade against the judiciary over stepping its bounds. For all of us deprived of a vicarious victory (with India’s early exit in the world cup), these two moments had to be the closest thing to the double century that none of us got to see. And yet at the same time, at the end of the two paisa vasool moments in a rather dreary and depressing afternoon, I also had this uncanny post-ejaculation feeling of emptiness…… such a short lived moment of pleasure for so much effort. From lawrence at altlawforum.org Fri May 4 13:47:37 2007 From: lawrence at altlawforum.org (Lawrence Liang) Date: Fri, 04 May 2007 13:47:37 +0530 Subject: [Commons-Law] Devastating Looks: Smirks, Quirks and Judicial Authority Message-ID: <463AEC21.70602@altlawforum.org> Some more private love notes on my ongoing affair with the judiciary * Devastating Looks: Smirks, Quirks and Judicial Authority *Raoul Vaneigem, the Belgian philosopher writes that “The economy of everyday life is based on a continuous exchange of humiliations and aggressive attitudes. It conceals a technique of wear and tear which is itself prey to the gift of destruction which it invites contradictorily”. In an incredible story in his chapter on humiliation, Vaneigem says that one day, when Rousseau was traveling through a crowded village, he was insulted by a lowly peasant whose insults delighted the crowd. The great philosopher Rousseau was completely taken aback and flushed with anger, but could not think of a single thing to say in reply and was forced to take to his heels amidst the jeers of the crowd. By the time he had finally regained his composure and thought of a thousand possible retorts, any one of which would have silenced the joker once and for all, he was at two hours distance from the village. Vaneigem then says “Aren't most of the trivial incidents of everyday life like this ridiculous adventure? but in an attenuated and diluted form, reduced to the duration of a step, a glance, a thought, experienced as a muffled impact, a fleeting discomfort barely registered by consciousness and leaving in the mind only the dull irritation at a loss to discover its own origin?” This everyday experience that Vaneigem describes is slightly deceptive since it involves an exchange between a renowned philosopher and bumpkin, and the pleasure of the tale is derived from the underdog illiterate getting the better of the man of letters. But it is more likely that our everyday is marked by experiences of humiliation in which the underdog does not even have a chance to speak back to, let alone offer a biting remark. How many such experiences lay scattered in personal archives of humiliation and shame and it is unlikely that they will ever be recalled in the forgetfulness of public memory. While the official memory of judicial authority is stored in volumes of reported decisions and cases which unfortunate lawyers have to traverse through, there also exists an equal number of unreported decisions and orders which partially escape public memory. Unreported judgments are often understood as those which did not make it to the reporters. But are these utterances the only way that we can think of judicial power? Witnessing the courts functioning on a day to day basis also allows you to uncover another secret archive, an archive of humiliation and power. It is said that seventy percent of our communication is non verbal and this must be true of legal communication as well. The secret archive that interests me consists not of well reasoned judgments or even the unreasonable admonishment of the courts, but the various symbolic signs and gestures that accompany them. An incomplete index of the archive includes the stare, the smirk, the haughty laugh, the raised eyebrow, the indifferent yawn, the disdainful smile and the patronizing nod amongst many others. The trick lies in distinguishing the temporal life of these visual aids. Like a good alchemist, an observer of the court starts to read these potent mixtures and their combination with words, and begins to predict the disastrous consequences that certain looks/words will produce. My experience of following the demolition cases in the Delhi high court have led me to a few tentative hypothesis: Any reference to the right of the urban poor is responded to with a smirk Any mention of things like regularization will be met with a laugh Any challenge to the authority of the court will be silenced with an angry glare While we have traditionally focused on the consequences of the orders, and the discursive effects of the words, it is time that we learnt from learn dancers and pay attention to the subtle meanings of looks and gestures. After all if models have looks that can kill, judges have looks that can demolish. But like everything else in this country, these visuals aids are also a scarce resource and have to be carefully allocated for maximum efficiency. The courts follow a ‘needs based approach’ in their allocation of stares and glares. The more experienced and senior the lawyer, the less likely that s/he will require these visual aids, and in exceptional circumstances you may even have a situation where the lawyer is willing to trade in some of their own visual aids with the judges. But if you happen to be a younger lawyer or one of those cantankerous litigants arguing for impossibilities like fairness and justice then you will be accorded a larger share of these visual aids. Having worked out the first step, namely the temporal logic of the court glares, you will then be required to move to another plane. To begin with, you must first acknowledge that the world of visual legal communication is a secret world in which only the initiated can participate. Lay people can try their luck, but at their own peril. When Arundhati Roy stood on a hill and laughed at the tender concern of the Supreme Court in the Narmada Bachao Andolan case, she was hauled up for contempt. Thus if you are to participate in language of the court, you can only do it clandestinely, with silence or whispers being your safest weapon. Over a period of time you will begin to develop a wider vocabulary and it will be useful to note them down for future reference, for without a handy dictionary of these secret codes, the ordinary language of judgments and decisions fail to provide any intelligible meaning. Consider for instance the following exchange over a matter related to a demolition of large basti. The court appointed commissioner risers to make his indignant observation that a large portions of prime public land in North Delhi (more than 51,000 square yards to be precise) is being encroached on. The judge’s face reveals an appalled and pained look. The lawyer appearing on behalf of the residents of the basti objects to the statement of the commissioner and points out that this is not a case of encroachment on public land but that there in fact exists a J & J settlement which has evolved over many years and the residents are entitled to a fair treatment in law. He further argues that the facts alleged by the court commissioner is untrue and each one of them can be contested. The expression of pain and appall quickly morphs itself into a smirk and laugh as the judge says, that the high court is not the space for determination of facts and facts should be considered by the appropriate authority. The lawyer pleads that in this case there is no appropriate authority since the ‘facts’ are produced either by the monitoring committee or the court commissioners and the court is passing orders relying on these very ‘facts’. In record breaking speed, the smirk is quickly replaced by a look of absolute indifference and the line is repeated that the court is not the interested in questions of facts. The fantasy of pure unadulterated experience has inspired philosophers and poets alike. The equivalent fantasy of appellate judges is in the idea of pure unadulterated engagement with questions of law, untainted by the messy details of facts. After all the task of judicial interpretation lies in the world of words, while the word of facts is enmeshed in experiences of pain and violence. Rana Gupta in his amazing story, the Millionaire’s sleep describes a child prodigy who discovers that the secret of music lies not just in the melody or the tune but in their combination with time. Thus playing Beethoven’s 5th symphony at twelve in the afternoon produces very different results from playing it at seven in the evening. In a similar vein it could be argued that the secret history of judicial authority lies not in their sovereign utterances alone but in their combination with the quotidian but under examined smirk or glare. The challenging task ahead for the ethnographer/ historian of the daily life of courts lies in completing the gap in the official archives of the courts by rendering them more sensual; to fill in the empty spaces between words with the appropriate emotion, the correct gesture or look, without which the utterances themselves seem to be incomplete in meaning. Thus if one were to try ad speculatively reconstruct decisions with their proper affect, it might look lie this. This is from the much quoted paragraph in Almitra Patel v. Union of India Establishment or creating of slums, it seems, appears to be good business and is well organized (Sardonic but flat tone). The number of slums has multiplied in the last few years by geometrical proportion (rising indignation). Large areas of public land, in this way, are usurped for private use free of cost (Raised eyebrows displaying Irritation). It is difficult to believe that this can happen in the capital of the country without passive or active connivance of the land owning agencies and/or the municipal authorities (hands raised with look of incredulity and rage) . The promise of free land, at the taxpayers cost, in place of a jhuggi, is a proposal which attracts more land grabbers. Rewarding an encroacher on public land with free alternate site is like giving a reward to a pickpocket (venom and spite mixed with sarcasm). From linda.stupart at gmail.com Fri May 4 18:29:17 2007 From: linda.stupart at gmail.com (artsmedia) Date: Fri, 4 May 2007 14:59:17 +0200 (SAST) Subject: [Commons-Law] Young Curators Workshops at the Centre for African Studies Message-ID: <1178283557_SectionID-149111_HitID-1178283538000_SiteID-16216_EmailID-19995904_DB-1@ss20.q5s.us> Your email program does not support HTML. To view an online version of this email, please click the link below. http://stats.expertmailer.com/rwcode/content.asp?SID=0&SiteID=16216&Section=149111&EmailID=19995904&HitID=1178283538000 To unsubscribe, click the link below. http://stats.expertmailer.com/RWCode/subscribe.asp?SID=0&SiteID=16216&Email=commons-law at sarai.net&HitID=1178283538000 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070504/75d78881/attachment.html From amicusjuris at gmail.com Sun May 6 14:05:01 2007 From: amicusjuris at gmail.com (Saif Mahmood) Date: Sun, 6 May 2007 01:35:01 -0700 (PDT) Subject: [Commons-Law] An invite reminder from SaifMahmood on LawNetworking.org Message-ID: <1178440501251@LawNetworking.org> Hi! It's me Saif! I am reminding you to join my network on LawNetworking.org. LawNetworking.org is an online service that lets you find old friends and meet new people. You may also show yourself here by updating your profile and creating a blog. LawNetworking.org will supply more online services in future. It's also fun, safe and free!! That's worth something. Join my network on LawNetworking.org now!!! Best regards, Saif amicusjuris at gmail.com -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070506/7f079326/attachment.html From shuddha at sarai.net Sun May 6 17:56:46 2007 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Sun, 06 May 2007 17:56:46 +0530 Subject: [Commons-Law] Gujarat Fake Encounters: The Spin Doctoring has Begun Message-ID: <463DC986.3050207@sarai.net> (apologies for cross posting on Commons Law and www.kafila.org ) Gujarat Fake Encounters: The Spin Doctoring has Begun The Gujarat Fake Encounter Story (which many of you may be following) is rapidly being scripted along the familiar lines of the 'Corrupt Policeman-Corrupt Politician-Underworld Links' nexus. While this may be true, (and I do not doubt that Narendra Modi, who holds the 'Home' portfolio in Gujarat, must not be entirely un-involved in this matter) it would be unfortunate if the Gujarat 'fake encounter killings' , like 'fake encounter' stories in Kashmir, Delhi or elsewhere are now spun into 'systemic aberrations'. Rather, they should be seen as evidence of how the system actually works, and how efficient it is. Rajdeep Sardesai, our teflon television crusader, did his bit this afternoon in a CNN IBN special where he repeatedly tried to push the point that the 'encounters' were part of the BJPs 'communal' agenda, neatly handing them a stick with which to now go to town with. Of Modi and Vanzara as Hindu heroes, versus the tainted pseudo-secular English Media types. In a story titled 'Has SC Pressure Unmasked Vanzara' Datelined, May 05, 2007, http://www.ibnlive.com/news/has-sc-pressure-unmasked-vanzara/39827-3.html the CNN IBN report says "Which raises the question – was Vanzara acting on his own, or was he following a political agenda?For the last two weeks, Gujarat Chief Minister Narendra Modi has chosen to stay silent.Also remained quiet was the minister of state for home Amit Shah, widely seen in Gujarat as someone whom Vanzara directly reported to. According to an Intelligence bureau report, it was alleged that at a meeting held on January 30, 2006 at the Circuit House in Gandhinagar, Amit Shah admitted in cavalier manner that Kauser Bi had been killed by Vanzara." In this version, a high state of panic, a 'strategy of tension' about terrorism in Gujarat has served the BJP and Modi well, and so, encounter killings have been arranged from time to time to ensure that the public believes that Narendra Modi is in constant danger. Vanzara himself is said to have been involved in 9 Encounters that killed a total of 15 people in recent years. I am not disputing the broad picture that this story paints. What I am not quite convinced about is the way in which it located the entirety of the authorship of this episode as something that has somehow transpired solely between a 'communalized political leadership' and some rogue senior police officers. Even for this to work, there have to be more people involved. Not all of them Gujarati, maybe not all of them communal or even tied to the simple agenda of keeping Modi in power. Elsewhere, CNN IBN has said that Vanzara was allegedly paid to kill Sohrabuddin by 'Rajasthani Marble traders' in order to relieve them of Sohrabuddin's extortion. [See - Marble lobby paid Guj cop to kill CNN-IBN, May 2, 2007 http://www.ibnlive.com/news/ips-officer-vanzara-may-have-been-a-contract-killer/top/39619-3.html?xml The question is not whether Mr. Modi sanctioned or did not sanction the killings (even presuming that he did), or whether Sohrabuddin was killed on the request of 'Rajasthani Marble Traders'. The question is, how could the Gujarat police (even if we assume that it acted under orders solely emanating from Modi's home ministry in Gujarat, or from the Rajasthani Marble Trade) successfully undertake an operation that needed to be fine tuned as far away as Hyderabad, just on its own resources. I have no doubt that Mr. Modi (or the deadly Rajasthani Marble Lobby) would have reason to be happy with the outcome, the question is, who else was happy? If Rajdeep Sardesai and others of his kind want to make this an issue of Modi versus the good guys, they will be doing the greatest sevice to Modi (who delights in being taken on by the mainstream English media) and to those others, not necessarily in Gujarat, who co-scripted the parts that Vanzara, Pandyan, Sohrabuddin, Tulsiram and Kausar Bi played. The Mainstream Media channels like CNN IBN will have done their duty of playing the tough investigators and will have won themselves kudos from the secular conscience keepers of our republic, the BJP will be happy to stage yet another polarization, and the hidden scritpwriters of the episode will stay safe and sound, where they belong. Sohrabuddin and Kausar Bi will become one party's martyr, Vanzara and Pandyan will become another party's martyr. Everyone who matters will gain. Here is why I think the whole question of 'fake encounters' is a lot more complicated than simply a matter of some corrupt cops doing the bidding of some corrupt politicians with links to some underworld dons, or in pursuit of some 'communal agneda'. While all this may be true, it does require more than the corrupt politician of one state to bring into being an operation that involves the police apparatus of three states - namely, Gujarat, Rajasthan and Andhra Pradesh (one of which, Andhra Pradesh was not ruled by the BJP). Add to this the strange mix of small town underworld operatives, informers, safe houses and much else besides that points to a picture far larger than the B Movie of Cops gone bad and Netas gone crazy. What is missing, or not commented on, in much of the discussion around the fake encounters is the fact that this kind of multi-state co ordination of police forces can only be done by Central bodies. The one central body uniquely equipped to bring such co ordinated efforts to fruition is none other than the Intelligence Bureau. It may be recalled that the IB has from time to time made it known that there were plans afoot to assasinate Modi and other BJP, VHP leaders in Gujarat. Once a prediction is made, it can be seen as effective only if the facts follow suit, so, if no specific plot to arrange for Modi or Togadia's assasination can be found, then a few dead bodies (some unidentified, some of small time extortionists like Sohrabuddin can be conveniently placed for a photo opportunity). Some other dead bodies like that of Kausar Bi, can be made to disappear. We need to remind ourselves that Rajkumar Pandyan, IPS, one of the people arrested with IG (Border Range) Vanzara, is a superintendent of police with the Intelligence Bureau. [ See - Three IPS officials arrested for fake encounter PTI Report in Hindustan Times, April 24, 2007 ] Vanzara was chief of the Anti Terror Squad of the Gujarat Police, while Pandyan was his deputy during the time when Sohrabuddin was killed and Kausar Bi disappeared. Anti Terror Squads of sensitive states like Gujarat are always directly handled by the IB from the centre. Which means that though Modi may have been involved, the question of who co-authored the orders to arrange so many 'encounters' to protect Modi may have come from sources quite far away from Ahmedabad and Gandhinagar. Remember that the CNN IBN report I quoted mentions 'IB Reports' saying that "at a meeting held on January 30, 2006 at the Circuit House in Gandhinagar, Amit Shah (Gujarat's minuister of state for home affairs and key Nody point man, admitted in cavalier manner that Kauser Bi had been killed by Vanzara." How exactly does CNN IBN lay its hands on IB reports, and to what extent should we treat the entire contents of an IB report as news. Especially, when one of the people indicted in the episode happens to be an IB operative (Pandyan). A fair amount of reading between the lines is necessary here. A news channel quotes an IB report (without giving a source) about an episode where an IB functionary is directly involved in a murder. Why then is the IB willing to countenance a leak about something that compromises one of its own. Perhaps the answer could be found in a strategy of 'selective information delivery'. You say a few things that are so shocking that they temporarily inhibit us from asking a harder question. So, in the 13 December case, when the heat was high, CNN IBN delivered a piece of 'selective information' - of Davinder SIngh of the STF having tortured Afzal (which had been known all along) mainly to distract attention from the question of how Afzal got to be where he is today. So, here too, an IB report, mentions people who are quite close to the IB, in a shocking episode, probably in order to shield other less dispensable functionaries and more important processes. It is time to revisit the story of Ishrat Jahan and Javed Sheikh (the Malyali Hindu convert to Islam from Pune who was presented as an earlier would be assasin). It is time to ask just how many people the IB was cultivating, and is cultivating today, in different places, in order to make sure that the right kind of dead bodies turn up with routine regularity. Incidentally, now that Vanzara and Pandyan have been arrested, the IB has once again made it known that theire lives are in danger in Sabarmati Jail in Ahmedabad and that they should be taken elsewhere. [See - Sabarmati jail inmates could pose threat to Vanzara: IB Times of India, 5 May, 2007 ] Two possibilities emerge from this prediction - one, that the IB is only trying to look after its own, and two, that once again, this prediction might disturbingly come true, that someone might actually 'take out' Vanzara and Pandyan in Sabarmati Prison. Either way, the IB stands not to lose. If Vanzara and Pandyan are safe, they will be safe because the IB has made sure that they are safe, and they will then be vulnerable to pressure of the kind that they do not spill the beans over much. If they are 'taken out' then once again, the truth departs with them. All of this goes to show, that the game is far more complex than even a Narendra Modi can play. We should ask, not who Narendra Modi controls, but rather, who controls Narendra Modi. We should begin considering the fact that the IB, RAW and other agencies of stealth are as vital to the political scenario in India today as the underworld and policemen are, and their job is not just that of offering convenient pre-election predictions to the powers that be. There is a state within the state in India, what is called a 'deep state' in Turkey, and every encounter killing shows just how far and wide the writ of that state within the state runs. Perhaps a concerted effort to make the decisions of the Intelligence apparatus in this country acquire a degree of transparency and accountability is in order. Unless that is done, many more Sohrabuddin's, Kausar Bis, Tulsirams, Ishrat Jahans (and countless others in Kashmir and elsewhere) will meet their encounter with a Bullet that may or may not be accounted for in the ordinance and ammunition registers of many different police, counter-insurgency, intelligence and anti terrorism deparments. best, Shuddha From ljishnu at gmail.com Mon May 7 01:03:02 2007 From: ljishnu at gmail.com (Latha Jishnu) Date: Mon, 7 May 2007 01:03:02 +0530 Subject: [Commons-Law] encounter killings and IB Message-ID: re Shuddhabrata's mail. you're spot on. such killings are not possible without the backing of the IB and other central agencies like raw. it happened during the punjab militancy and there are several reports on this. HT did a story on this a couple of days ago, and it is telling but we need to highlight this more. Encounter opens up old wounds across India- Hindustan Times Kanwar Sandhu and Manoj Joshi Email Author Chandigarh/New Delhi, May 04, 2007 First Published: 01:56 IST(5/5/2007) Last Updated: 03:56 IST(6/5/2007) The probe into the murders of Sohrabuddin Sheikh and his wife Kausar Bi near Ahmedabad in late 2005 has again focused public attention on extra-judicial killings — what the police call "encounters". An explanation for the prevalence of extra-judicial killings in this country could lie in a confidential letter written over 15 years ago by the head of the Intelligence Bureau (IB). This letter, of which Hindustan Times has a copy, served as a de facto blueprint for police forces nationwide on how to carry out extra-judicial killings while avoiding public attention. The letter was written by VG Vaidya, director, IB, to then Punjab DGP KPS Gill on December 30, 1991. It dealt with the subject of some police officers revealing to Western journalists how they had killed terrorists without legal sanction. One officer even gave the journalists access to a militant who had been illegally detained and was later shot. "Their professional compulsions in executive action should not get reflected in their public utterances, which should be correct and responsible," Vaidya wrote in the letter. In effect, he was condoning the killings, and objecting only to these being frankly revealed to journalists. The killings in Gujarat have opened old wounds, as HT correspondents who fanned out across India, found. Starting today, a series of stories will show how families are demanding fresh probes into encounters that are not acknowledged as extra-judicial killings but are still on police files. As many countries formerly run by military juntas begin scrapping amnesties and investigating thousands of extra-judicial killings and disappearances dating as far back as 1968, it could be time for democratic India to do the same, said security experts and former police officers. "This (exposure of fake killings) has to be done. It must be done for the country's sake, but I can assure you it'll create a lot of problems," said EN Rammohan, former DG, BSF. "We must exorcise the past." Rammohan said extra-judicial killings were now so widespread they involved entire security forces. "In Kashmir, only a Truth and Reconciliation Commission (of the sort South Africa set up after apartheid ended) will enable India to make peace with the Kashmiri people," he said. There is no accurate count, but police units have killed hundreds nationwide since Vaidya wrote his letter. In Gujarat alone, over the past decade, there have been 17 alleged police encounters. Encounter killings have become part of an unwritten but widely condoned state policy, officers acknowledged. Started initially to cripple militancy, encounters have since been used to even do away with petty thieves and extortionists, which is what Sohrabuddin Sheikh appears to have been, as shown by police records. "Extra-judicial killings are akin to murder," said former Punjab and Mumbai police chief Julio Rebeiro. "There is now a glimmer of hope from the judiciary." Another senior police officer who served in Kashmir said the force there had a policy — if one soldier or BSF official was killed by terrorists, five young men were executed in retaliation. Former police officer Arvind Verma — now teaching criminal justice at Indiana University in the US — said even politicians would not succeed in making the police more accountable. "The only outcome that can result when political pressure is applied is to make the police even more brutal and unaccountable," said Verma in his 2005 book The Indian Police, a Critical Evaluation. "When VP Singh sent the message that dacoity would be eliminated from Uttar Pradesh, the only outcome was the 'encounter' deaths of hundreds of suspects. Similar pressures in Bengal, in Andhra Pradesh and Bihar against left wing extremists or Naxalites have also resulted in killings and police terror in the so called 'disturbed areas'... The spate of crimes — specially kidnappings — in Delhi put the police under pressure to 'do something'. The Delhi police did something: it shot dead two business persons in Connaught Place (in 1997), in open daylight supposedly on mistaken identity," the book has noted. VK Jain, former special secretary in the Ministry of Home Affairs, said the Centre must accept the National Police Commission reports on police reform — the first was submitted in 1901, the last in 1977. But none have ever been implemented. Jain said the Supreme Court had accepted these recommendations, but states balked at implementing them. The 1991 IB letter gives away the kind of transparency that once existed about extra-judicial killings. Vaidya refers to an April 1991 story in The Guardian, based on an interview with Sanjeev Gupta, then senior superintendent of police (SSP) of Amritsar. "In this interview, Gupta had in good faith tried to justify the killings of terrorists by the police in simulated encounters in the absence of any better option," Vaidya wrote in his letter to KPS Gill. "In consultation with the External Publicity Division, it was thought to get the story contradicted through our High Commission in London but the exercise was abandoned when it was later learnt that not only three foreign press correspondents were present during the SSP's briefing, but that they had also clandestinely recorded the interview." From hbs.law at gmail.com Tue May 8 16:13:20 2007 From: hbs.law at gmail.com (Hasit seth) Date: Tue, 8 May 2007 16:13:20 +0530 Subject: [Commons-Law] Ethernet Inventor on Patents - Bob Metcalfe Message-ID: <8b60429e0705080343k373f6a9dj538f7e694dc834e7@mail.gmail.com> Hi, I really admire when inventors speak about patents. Here is Bob Metcalfe, the legendary inventor of Ethernet, talking about patents. Most people understand internet as a great network, but very few know and appreciate that local area networks are huge too and everything local runs on Ethernet which Bob developed at Xerox's PARC labs. He talks a little about patents and software patents. Anyone who thinks software is math and hence not patentable, should read this and hopefully revise their neural makeup. Last May-June, I visited PARC and got to touch the first ehternet cable and BNC connectors at PARC. It was an amazing feeling, some geeks can appreciate it I guess. Regards, Hasit Bob's bio includes - Metcalfe has racked up several awards and honors, including the Grace Murray Hopper Award from the Association for Computing Machinery (ACM) in 1980 and the Alexander Graham Bell Medal from the Institute of Electrical and Electronics Engineers (IEEE) in 1988. In 1995, he was elected to the American Academy of Arts and Sciences. In 2003, he won the Marconi International Fellowship and received the National Medal of Technology from President Bush "for leadership in the invention, standardization, and commercialization of Ethernet". And this past weekend as he was inducted to the National Inventors Hall of Fame in Akron, Ohio. Further, he founded 3Com, a networking pioneer. ..... Full interview is here: http://news.com.com/Ethernet+papa+makes+Invent+Now+Hall+of+Fame/2008-1033_3-6181578.html?tag=nefd.lede *Speaking of patents, a lot of people say the U.S. patent system has gotten out of control. What do you think? *Metcalfe: The patent system will always be broken. It's a very good thing, and it's worth fixing. But it will always be broken because there will always be bad actors hanging around any system trying to game the system. A big problem was that for 20 years the Patent Office did not issue software patents. It was against the rules. So, for example, when I patented Ethernet I spent a lot of time with Xerox attorneys explaining how you would build Ethernet using hardware, even though we actually built it using a lot of software. But since software was not patentable, we had to express it as a hardware embodiment. And then somewhere along the line, for some reason I don't know, the Patent Office started allowing software patents. That created a big problem, because there was this big gap in the prior art. A lot of patents got issued that shouldn't have been issued, because there is prior art out there that just hasn't been discovered. ---------------------------------------------------- -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070508/4f20507f/attachment.html From amitabhkumar84 at gmail.com Wed May 9 19:24:49 2007 From: amitabhkumar84 at gmail.com (Amitabh Kumar) Date: Wed, 9 May 2007 19:24:49 +0530 Subject: [Commons-Law] Who has the right to produce culture?? Message-ID: <376E22B5-3F35-42D5-8838-F788A90D0156@gmail.com> I sit in a cyber cafe in baroda with the attendant humming around me tying to verify my photo id proof and wanting to know if kumar is actually my last name. It's sweltering hot outside. Anyways this note is more about the events that have recently taken place at the faculty of fine arts MSU Baroda, and the questions towards which they point. What hapenned was this.The annual fine arts display is a congregation of all the alumni of fine arts. People come from all over India to celebrate another batch that comes out of the academy. It was during this event that another was born. A final year M.V.A student of printmaking called Chandu had put huge blow ups of his woodcut prints for the annual display. The visuals included a Christ like image on the cross and his penis being exposed and a few nude drawings of a few 'deity' like figurines.What it led to was a few Bajrang Dal activists storming into the faculty and shutting down the display. They claimed that these were misusing the license given to an artist and were doing works simply for the sake of publicity. On being asked by the Bajrang Dal people about why he had created those images, he quipped back saying that if M.F Hussain could do it , then why couldn't he ? The Bajrang Dal Chief went on about how the works were perverting and diluting their Culture. The culture that belonged to the great city of Sayaji and the Gujarati community. Under this pretext ,the dean in the faculty was manhandled and slapped and the few students who spoke out were cowed down by the cops. Yes , the cops were there throughout. Flexing their paunch and chatting up with the 'activists'. The artist in question, Chandu, was taken away by the cops and had been earlier beaten up by the Bajrang Dal people. All the students were asked to leave the campus. Ofcourse no one left. We stood their, muted by what we were witnessing. The seedy nexus between the moral police and the police police can be best described by this liitle observation: Bajrang Dal Activist: Either you seal the prints and destroy them or we will destroy all the works in the display.. Cop : No, No... We don't need to get violent here.. don't worry the works will be sealed. We just stood there watching the media people asking a professor to get out of his way.The entire place rife with rumours about why what had hapenned had hapenned. A vendetta, an old grudge, politics (internal and external). The one rumour that stayed in my head was about how after the Hussain Scandal there was a ruling passed by the supreme court that said that any image that depicted a religious deity in a vulgar light was a crime and the artist was liable .to being arrested. The journalists jumped at anyone who spoke over a few decibels and a crowd forming around that. The Bajrang Dal activists with hands folded glaring at anyone who looked like a fine arty( There is a certain prototype of a fine arts student.. me for example). The few voices that came from the faculty students and alumni being completely muted down by a cacophony of shrieks of the Bajrang Dal people. People shooting from everywhere . Lost in a jungle of handycam's. Last heard, the artist was in the jail under a non -bailable warrant. ( the top lawyer in Baroda is also a well known BJP henchman ).. Ofcourse the joke going around is that , our artist has made it in the Indian. Nothing works like a little censorship and 'hulla-gulla'. And I am also no illusion about the artists innocence. Of course he knew what he was doing.. perhaps didn't assume the reactions would take such a turn , but I am fairly certain he knew what he was getting into.. But this little note is also not about the politics of Indian Art in particular.. What was happenning was bigger than a Chandu being arrested or a dean being slapped. What was happenning was blatant hijacking of culture by force. Or are there other tools? Who has the right to produce culture? Who can stake claim to it? Who is the vigilante and who the goonda? What is acceptable.? Can thoughts be censored ? Can the translation of thoughts be censored ? I do not how the events will unfold. In all probability a hero and a villain will emerge. The Gods and Goondas will be created from different perspectives and things would be so simple from so many different corners that it would eventually die a respectful quiet death. Should it ? -- www.amitabhkumar.blogspot.com -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070509/a92b159c/attachment.html From the.solipsist at gmail.com Fri May 11 11:34:33 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Fri, 11 May 2007 11:34:33 +0530 Subject: [Commons-Law] What fuels Open Source? Message-ID: <4785f1e20705102304m373c4a86id95336f9cea4de85@mail.gmail.com> Dear All, A while back there was a thread in Commons-Law as to whether it is money or the sense of voluntarism that drives Open Source. In this blog entry, Scott Gilbertson of Wired airs his views on the matter. Please follow the link to the original page for some intelligent comments. Wednesday, May 09, 2007 Money, Not Spare Cycles, Drives Open SourceWired Magazine editor, Chris Anderson, recently published an article on his blog, The Long Tail, suggesting that, much as spare CPU cycles drive projects like SETI, human "spare cycle" are powering the open source movementand Web 2.0. It's a really nice metaphor, the problem is, for large open source projects anyway, it isn't true. While Anderson's theory may explain smaller open source projects and web 2.0sites like Flickr, big open source projects, like the Linux kernel, are built not by the mythical open source volunteer, but by paid programmers working for large corporations. Jonathan Corbet of LWN.net released a studya couple of months ago that pegged corporate contributions to the Linux kernal at 65 percent. The breakdown of corporations involved included Red Hat with far and away the most contributions, along with IBM, Novell, the Linux Foundation (which employs Torvalds), Intel, and Oracle. More recently OpenSUSE released a survey of userswhich found that very few of them actually work on the distribution. 84.7 percent are simply users of the distribution. Only 1.9 percent actually create new programs, and just 0.9 percent work on patches. The salient point isn't that open source is somehow tainted by corporate involvement, but rather that open source is ultimately a capitalist venture like any other software. I'll confess the Anderson's notion of volunteers creating software in their spare time has more appeal, though like the blogger at Neosmart, I disagree that it's out of boredom. Which brings me to the best part of the open source community. Open source's brilliance is not that it's created by volunteers, but that it *could* be created by volunteers. Unlike proprietary software, with closed teams of programmers, open source projects are open to any contribution. Just because the majority of the Linux kernel comes from corporate employees doesn't mean that those contributions are the most significant. It could well be that the corporate contributions were largely meaningless for the average user, but the work of one person fixed the glitch that had bothered thousands. And for many the appeal of open source is not contributing downtime to development, but using tools that can incorporate the collective wisdom of the community. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070511/afc95d4e/attachment.html From shuddha at sarai.net Fri May 11 22:46:12 2007 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Fri, 11 May 2007 22:46:12 +0530 Subject: [Commons-Law] A Modest Proposal to End All Controversies on Freedom of Expression in India Message-ID: <4644A4DC.3020606@sarai.net> Dear All, (apologies for cross posting on Commons Law, Reader List and Kafila.org) As we know well by now from the freedom loving sentiments (that are expressed loudly and frequently) by all sections of the guardians of social order in India, (that is Bharat, that is Hindustan), the real reason why certain insignificant documentary independent and student films, contemporary art exhibitions in university campuses and performances are banned, and their heinous perpetrators arrested has to do with the general populations right to sleep undisturbed each night and not to see anything other than cricket matches, news about cricket matches, election analyses, kaun banega crorepati, Abhishek Bacchan's wedding, and yoga on TV. Why should anyone in their right mind want to see, read, listen to or even think about anything else? Consider the folly that some students in Kottayam have recently contemplated, making a film on of all things 'Homosexuality' . see - http://groups.google.com/group/greenyouth/msg/91c668142e58c20c Or, of the students in the Fine Arts Department of M.S.University in Baroda who went ahead and organized an exhibition of student work that contained offensive erotic imagery. see - http://www.hindustantimes.com/StoryPage/StoryPage.aspx?id=8f2213c7-4b12-4e48-9b7c-40302cd7a968&&Headline=Vadodara+art+student+lands+in+jail Both of these moves have been met with swift and timely responses. The offending students in Kerala have been expelled by the Christian educational institutition where they were enrolled, and the offending art student in Vadodara, one Chandramohanm has been arrested by the local police at the urging of Hindutva minded citizens. There are only two things we need to learn from incidents of this nature. The first is as follows - Actually, all that people need to do is to insist that only the self appointed guardians of public morality (of all stripes and shades) have the right to appear in any broadcast, exhibition, film or other forms of mediated communication. We need every channel to broadcast morally cleansed reality TV all the time. How else will this nation boldly venture where none other has gone before - into that heaven of bliss and freedom known as ennui for the billions. If, for 24 hours a day, seven days a week, we only had priests, hindu holy men, muslim divines, chistian priests, dalit messiahs, communist apparatchiks, gandhian crusaders, and secular activists, politicians, moral crusaders and do gooders of every stripe and persuasion on TV, in public fora, on web sites - acting as artists, as film directors, VJs, crooners and even as item number specialists or porn stars then all our cultural problems would be solved. Think of how fetching Dr. Praveen Togadia would look in a leather thong. Our national cultural life would then be like an undending and refined Republic Day pageant, full of approtiately attired folk dancers, uplifting martial music and tasteful tableaux of ancient heritage, combined with images of modern progress and development. That would be a fitting expression of the very soft power of an awakening and shining India. The public would also, by this strategy, get its fill of salacious and erotic content, (rss pracharaks would be filmed having more sex with every gender and form of life, inheritors of the BJP legacy would be seen snorting cocaine, Christian evangelists would be seen in the throes of real estate speculation and Muslim holy men would be seen imbibing their favourite form of spiritual succor in the form of halal scotch and the secular guardians of public morality would be doing what they do best - making money for the cause by setting up yet another special exploitative zone). The guardians of public morality would themselves guarantee that the salacious and sleazy content offered to the public would be 100 percent patriotic, in keeping with Indian tradition and un-subversive as it would be produced by people like themselves (whose motives are above and beyond question). This experiment has been briefly and successfully undertaken in neigbouring countries like Afghanistan, where, the supervision of the entire matrix of communication by the 'Committee for the Suprresion of VIce and the Promotion of Virtue" during the brief Taliban interregnum did not result in any loss of cultural content, or lack of entertainment, for the general public. It just ensured that the Talibs had the authority to purvey the right kind of high minded and halal sleaze. Hey, no one can quite tell whether what you have behind a full burqa is full frontal nudity or not, right. So all you need to do is to dress everyone up in full burqas to ensure that everyone's erotic imagination runs riot. Similarly, if the guardians of public morality were to erect permanent visual barriers in front of medieval Hindu temples, the general population could speculate at leisure (and to a hitherto unimagined pornographic excess) as to the actual content of the obscured sculptural friezes. I would heartily welcome this measure as a form of highly evolved and consciousness altering Yoga for the mind. I propose that we all arrange for noisy demonstrations and organize lengthy electronic petitions to demand that the entire reins of communication and expression in India be handed over to a truly secular and representative board of guardians of public morality which would include - representatives of every religion (minority, majority or micro-minority), every political party recognized by the election commission of India, the cricket control board, the motion picture association of India and at least 4 morally upright page 3 celebrities, two selfless activists from public life, three television anchors, two sahitya academi winning authors who are unknown and therefore un-controversial, and five art critics and curators. I also propose that this committee be headed (for purposes of spiritual and ethical direction) in rotation, by one of the Shankaracharyas who is not accused of attempt to murder and the at least one member of any Waqf board anyewhere in the country who is also not a history sheeter. The second thing we need to learn is as follows - (and this emerges naturally from the contours of the first suggestion outlined above in this proposal). The successful realization of the demand that the field of cultural life and activity be entirely taken over by the current guardians of public morality woul allow the rest of us to be finally freed from the pursuit of culture so that we can get down to other serious business. Like thinking more precisely about how to illuminate a few guardians of public morality from below with the help of the right kind of chemicals. I always knew that if those of us who practice culture right now, stopped doing it, and started practising inorganic chemistry instead, the entire political field would be much more interesting, and perhaps, incendiary. That is why I can now understand the wisdom that my elders had when they used to advise me to study science and not arts after my 10th board examinations. I regret that I did not listen to their advice. I have not so far come across any right thinking guardian of public morality calling for bans on textbooks of inorganic chemistry. And as far as I understand, that is where one can learn about things like Cyclo-trimethylene-trinitramine, (popularly called Cyclonite, Hexogen, or somewhat loosely -as- 'Research Department (composition)X') - a substance first offered to the public for its medical and healing properties by the German chemist called Hans Henning in the 1890s and later developed for a variety of uses. [To know more about this substance - see the Wikipedia entry at - http://en.wikipedia.org/wiki/RDX] It is my view, (and I would like to see this debated, so that my arguments can be sharpened and refined by being made subject to rigorous criticism) that the selective, precise and well timed use of the knowledge gleaned from textbooks of inorganic chemistry can be a far more effective means of artistic, literary and cultural criticism than anything that anyone can learn in any art or media school or university deparment of literature, theatre or film studies. When, and if, the successful takeover of culture by the guardians of public morality in India has been undertaken, it will be time to re-enter the field of public cultural criticism and activity, well armed by the healing properties of Hexogen. regards, Shuddha From lawrence at altlawforum.org Sat May 12 13:09:54 2007 From: lawrence at altlawforum.org (Lawrence Liang) Date: Sat, 12 May 2007 13:09:54 +0530 Subject: [Commons-Law] Students Expelled for making a film on Homosexuality Message-ID: <46456F4A.6000401@altlawforum.org> This is a petition to the college authorities who expelled 5 students for making a film on homosexuality. please email Mayur Suresh, Alternative Law Forum, Bangalore <***mayur at altlawforum.org *> with your name and designation if you want to sign it. Please feel free to circulate. ** Please go through the following petition. If you do wish to sign on, please send an email, with your name and designation, if any, to mayur at altlawforum.org .* To, The Principal St. Josephs College of Communication, Changanassery Dear Ma'am/Sir, Re: Students expelled for making film on homosexuality. We are deeply disturbed at the expulsion of five students from your institution on the ground that they made a film that explores homosexual themes. The film titled 'Secret Minds', as you are aware, is a short film on homosexuality made as an entry for the competition section of an inter-college short film festival in Thiruvananthapuram. According to newspaper reports the management of your institution felt that the film, by portraying homosexuality had transgressed the limits of decency and moral values that your institution stood for. We, the undersigned, find these reasons completely unacceptable, and would like to express our shock and outrage at your action. Homosexuality in India is a topic that is taboo and is largely left out of public discourse. However, as you may be aware, there is a growing movement for the rights of sexual minorities in this country, which argues that all persons irrespective of their sexual orientation and gender identity have the right to live with dignity. In fact, the constitutional validity of the law criminalizes homosexuality in India is currently under challenge before the Delhi High Court. The acts of your institution have effectively censored a film on homosexuality, thus repudiating a certain way of life and denying homosexuals and other sexual minorities validation of their lifestyles through public portrayal and constituting an official condemnation of homosexuality. Historically, it is the incursions of the State into free speech that has been guarded against by academic institutions, film-makers, and artists. Instead, your institution by its actions has sought to act as the State and arbitrarily impose its own moral values in censoring this film. Merely because your institution is of the opinion that homosexuality is immoral it does not entitle your to censor the portrayal of homosexuality thus curtailing any debate or discussion around the issue. Furthermore, the invocation of the arbitrary standard of 'obscenity' or 'indecency' cannot be a legitimate reason for such an action, as this only becomes another reason to stifle debate and censor expression. It is the responsibility of an institution like yours to create a space that allows for the articulation of opinions that it may not agree with. It is only by pushing the limits of what is sayable and unsayable that such a space can be created. We believe that the actions of your institution in expelling these students for exercising their freedom of expression is completely unjustified and undermines the creation of such a space. As an academic institution, and particularly as a media and communications school, we believe that it is essential that your institution encourage diverse points of view and modes of expression. Academic growth and excellence can only be achieved in a space that is open to different ideas, where there is a culture of creativity and where people are not afraid to openly express themselves, and it is your institution's duty to ensure that such an atmosphere is cultivated. However, your institution's acts in expelling these students can only destroy the possibility of creating such an atmosphere and harms the reputation of your institution as a centre of academic excellence. As an institution that is training future film makers and media artists, your action in expelling these students undermines the role of film makers and artists who have always acted as guardians of the limits of free speech. Furthermore, what is extremely shocking is the disproportionate and arbitrary punishment given to the students. It is disturbing that your institution's response to the portrayal of homosexuality has been so vicious and brutal. We condemn your decision, demand that you reconsider your actions and reinstate the expelled students. ** If you do wish to sign on, please send an email, with your name and designation, if any, to mayur at altlawforum.org .* * * *Annexure* * * http://www.deccanherald.com/deccanherald/apr282007/national222552007427.asp Deccan Herald, 28 April, 2007 ** Students expelled for making film on homosexuality ** >From R Gopakumar DH News Service Thiruvananthapuram: A Catholic Church-run mass communications college in Kottayam has stirred a hornet's nest by expelling five students for making a film on homosexuality. The students are all fourth semester BA (multimedia) students of the St Joseph's College of Communications at Changanassery. The incident brings alive the raging worldwide debate on homosexuality to the church circles in Kerala. Neither the expelled students nor the authorities were readily willing to comment. Prathyush, one of the expelled students, told Deccan Herald that four of them had acted in the five-minute short film titled Secret Minds. The film depicting homosexuality was directed by an MA (film and TV) student Jeo Baby. He claimed that it was mainly intended for an inter-collegiate film festival here. The college management, however, felt that the film had transgressed the limits of decency and moral values that the college stood for and would have misled youths. The college authorities further said that the students misused the campus and college hostel premises for making the film and had also acted entirely nude in it. The management made clear its stand in the showcause notice issued to the students. The students were first served a showcause notice on March 23 and 27 and later expelled on April 2 on finding that their replies were unsatisfactory. However, Prathyush who was the only student willing to speak denied these allegations and said that they had exercised only their freedom of expression. The film was also well within the confines of the course to which they were admitted. Also, they had acted only partially nude as required by the script. "In any case, the film was not for public viewing but for a specific festival audience. They are just creating unnecessary fuss," he said. The students registered a complaint against the college with the Mahatma Gandhi University's grievance cell and also forwarded the notice which contained the charges against them. When contacted, college director Fr Sebastian refused to comment saying the issue was not over and was "undergoing certain processes". However, experts see the incident as an offshoot of the lack of theological guidance in the Church on the issue of homosexuality. > From lawrence at altlawforum.org Sat May 12 13:14:56 2007 From: lawrence at altlawforum.org (Lawrence Liang) Date: Sat, 12 May 2007 13:14:56 +0530 Subject: [Commons-Law] More from Baroda: from Indrapramit Roy] Message-ID: <46457078.2080407@altlawforum.org> -------------- next part -------------- An embedded message was scrubbed... From: Shuddhabrata Sengupta Subject: [Reader-list] More from Baroda: from Indrapramit Roy Date: Sat, 12 May 2007 11:19:02 +0530 Size: 12303 Url: http://mail.sarai.net/pipermail/commons-law/attachments/20070512/e17b8b4b/attachment.mht From shuddha at sarai.net Sat May 12 13:32:28 2007 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Sat, 12 May 2007 13:32:28 +0530 Subject: [Commons-Law] Protest Demonstration agains events in Baroda: From Lalit Batra Message-ID: <46457494.1030002@sarai.net> Dear All, (apologies for cross posting on Vikalp, Commons Law, Reader List and CAC lists) I have recieved a mail from Lalit Batra, about a protest demonstration against Chandramohan's (the MSU Baroda art student) and the closure of exhibitions at the faculty of fine arts, MSU Baroda, and the suspension of faculty (Shivji Pannickar) planned for tomorrow, 12th of May, at 3 p.m. at Gujarat Bhawan, Chanakya Puri, Near Ashoka Hotel, New Delhi. Anyone wanting to contact Lalit Batra about this (or for more information can call Lalit at 9899091413) I am pasting the message from members of the faculty (Bina Sriniviasand and Shivji Panickkar) that Lalit circulated below. Although everyone on this list is by now familiar with this story, this notice does have details of the sections of the penal code under which Chandramohan is being charged - Sections 153A and 114, along with Section 295. I would urge everyone to pay attention especially to the wonderful alliance between VHP activists and Christian priests in Gujarat, against the freedom of expression of a student. Further, here are some details about the relevant sections: Section 153A: Promoting enmity between different groups on grounds of religion, race etc, commiting acts prejudicial to the harmony of the public According to the section whoever by words or expression promotes enmity between different groups of the country on the grounds of religion, race, place of birth, residence, language, or any such grounds or commits an act which is prejudicial to the harmony of he public is culpable under the section with imprisonment which may extend to three years with or without fine. Further, when the offence is committed on any religious place or any place worship the imprisonment can extend to 5 years with or without fine. The offence is non-bailable and even cognizable (after 1898) ie. Police can arrest a person under the section without warrant. Section 295: Injuring or defiling place of worship with intent to insult the religion of any class Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as a insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 295A: Deliberate and malicious acts intended to outrage religious feelings Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs 295A. Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs. Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Section 114 is about abetment and presence when any crime is being committed. As a close reading of these sections would suggest, the problem lies not only with the act, but also with the idea of intention. The problem is, Chandramohan's lawyers can at best argue that his actions are not evidence of his intentions. However, an artist is such only because his actions have deliberation. Thus, to save Chandramohan the person from a prison sentence, his lawyers might have to jettison Chandramohan's identity as an artist. Such an argument, given the circumstances that the images in question were made for an exam of the fine arts department, may be impossible, or at the very least, difficult to sustain, The reason that distinguishes between the scrawls made by a chimpanzee and an abstract expressionist has to do with the idea of intention. To protect Chandramohan's act as an instance of un0 malicious behavious, it has to be freed from the matrix of artistic intention. We cannot really quarrel about the purport of the intention, because the onus of proving hurt, has to do not with the hurter, but with the hurtee. Hurt, is a subjective feeling, and as long as the hurt say that they feel their pain, we are in no position to debate whether their pain or humiliation is real or imagined. There cannot, in fact be, imagined or feigned pain, because a court is in no position to measure the intensity of feeling on any given issue. Thus when a person says that their religious sensibilities are hurt, a court has to listen, (if the injury to sensibilities is mentioned as a cause of harm). Chandramohan cannot say that he intended to cause pain. He can only say that he intended to cause meaning to be read into his actions. If someone says that they read meaning in his actions in a manner that caused them pain, there is very little that Chandramohan or his lawyers can say in defence against such a charge The only thing that can be debated is the question of whether or not there was 'intention'in the first place. As an artist, Chandramohan cannot run away from intention. Therefore the only recourse that anyone wishing to protect the freedom of speech in this case is to subject the law itself to criticism, not to speculate about whether it's application in this case is an instance of its misreading. This means arguing for a straightforward assault on sections 153 and 295. The only way that an artist or a writer's freedom of speech can be protected against religious zealots is through a complete and total repeal of sections 153 and 295. Having said that, arguing for these provisions to be struck down also means accepting the right of the Hindutva forces to insult and (through speech acts, signs, and visual representations) humiliate and attack people of other religions and convictions. I have no problem with that, but many who will rightly condemn the freedom of Chandramohan to act as he has done, will also call for bans on the 'hate speech' of those who have moved the machinery of law and order against him. Let it be understood that to do that will only invite further assaults on the freedom of art students like Chandramohan in the future. Meanwhile, I would urge everyone to attend as many meetings and protests, as possible on this issue, and make people aware of the draconian nature of sections 153 and 295. best Shuddha Dear All, You are all aware of the latest Sangh Parivar offensive against the democratic rights of the students and Faculty members of the well known Fine Arts Faculty of Baroda, M.S.University. The Fine Arts Faculty is one of the best institutions within the M.S.University, which has managed to retain high academic standards, in the face of the general academic deterioration within the University. The recent incident of hooliganism and blatant bullying unleashed by the Sangh Parivar has sent shock waves all over the country. It took place on Wednesday, 9th May 2007, at around 3 p.m. As part of the examination procedure underway in the Faculty, students are supposed to put up their works which are to be assessed by external examiners who come in from outside the city for this purpose. Accordingly, students had put up their installations around the Faculty campus. Some of these installations, (graphic prints) by Chandra Mohan attracted the wrath of the BJP leader Neeraj Jain, who barged into the campus with a bunch of goons and started disrupting the atmosphere, using abusive language and mouthing threats. They roughed up the Chandra Mohan and accused him of offending their religious sentiments, saying that he had portrayed Durga Mata in an obscene way. Not by any stretch of imagination did the prints actually portray any goddess. Under the leadership of Neeraj Jain (who had incidentally played a very dubious role in the May 2006 riots that followed the demolition of a 200 year old dargah in the heart of the city), and with the police in tow, they took Chandra Mohan and a friend of his away to the Sayajiganj police station. Shivji Panickkar, the acting Dean of the Fine Arts Faculty, was also threatened with dire consequences by Neeraj Jain and his goons. Chandra Mohan's friend was released later, but he was himself charged under sections 153 and 114. Later, on 10th May, when the bail application came up for hearing, two more charges were slapped on him, namely, Section 295 A and 295 B, and he was taken under judicial custody, and moved to the Central Jail. By now, Christian fundamentalists had joined hands with the Hindutvavadis. Alongwith the VHP and BJP crowds, reportedly, there were at least 40 priests in the court when Chandra Mohan's bail application came up for hearing. The priests were objecting to some painting to do with a cross - which, they thought offended their religious feelings. In the meantime, Shivji Panickkar met the Vice Chancellor, who basically, wanted him to make a statement that was nothing short of an apology for putting up offensive installations. Panickkar refused to do so. After this, the students submitted a statement expressing thier concern over such tactics, and with a set of their demands, which included police bandobast for the Faculty. Reportedly, Neeraj Jain barged into the Vice Chancellor's office on the same day, and threatened that he would make sure that the entire city would shut down if a single case is registered against him. As of now, all efforts are on to get Chandra Mohan released. However, what is of grave concern in this entire unfolding of events is the fascist agendas that underly the actions of the likes of Neeraj Jain. Citizenship and democratic rights face a grave crisis in the State of Gujarat and elsewhere. The nexus between the police and elements of the Sangh Parivar is so clearly established (it has been so since 2002) and it is also clear that fascist tactics affect everybody. In this instance, it is not only a matter for the artist community to agitate about. It is for ALL of us to sit up and take notice of what is going on in the name of religion. If we do not counter these tactics NOW, we are all going to be crushed sooner or later, either in our work arenas or within the confines of our homes. The dangers of giving in to or being cowed down by these forces cannot be underestimated. THE FACULTY OF FINE ARTS HAS PLANNED A LARGE DEMONSTRATION FOR 14TH MAY 2007, MONDAY WHERE ARTISTS, LAWYERS, DOCTORS, ORDINARY CITIZENS FROM ALL OVER THE COUNTRY WILL GET TOGETHER IN PROTEST AGAINST SUCH GAGGING OF EXPRESSION AND VIOLATION OF DEMOCRATIC RIGHTS. PLEASE DO COME FOR THE DEMONSTRATION, AND MOTIVATE OTHERS TO JOIN IT. THE TIME TO ACT IS UPON US, WE CANNOT ABDICATE OUR RESPONSIBILITY TOWARDS SOCIETY, OURSELVES AND THE YOUNGER GENERATIONS. VENUE: FINE ARTS FACULTY, M.S.UNIVERSITY , FATEHGANJ, BARODA TIME: 2 PM ONWARDS CONTACT PHONE NUMBERS: BINA SRINIVASAN: 9879377280 SHIVJI PANICKKAR: 9898403097 Best Bina PS: pls. circulate this email to as many people as possible. Thanks. ___________________________________________________________ Yahoo! Answers - Got a question? Someone out there knows the answer. Try it now. http://uk.answers.yahoo.com/ _______________________________________________ Foil-l mailing list Foil-l at insaf.net http://insaf.net/mailman/listinfo/foil-l_insaf.net From shuddha at sarai.net Sat May 12 18:54:45 2007 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Sat, 12 May 2007 18:54:45 +0530 Subject: [Commons-Law] Baroda, Immanel Kant and the Indian Penal Code Message-ID: <4645C01D.4010909@sarai.net> (apologies for cross posting on the Reader List, Commons law and www.kafila.org) Dear All, This is in continuation of my earlier posting about the incident at the MS University at Vadodara and the relevant sections of the Indian Penal Code. It is one of the wonderful properties of South Asian subcontinental life that reality is always better adorned than fiction would have it. And so it is that along with Mr. Niraj Jain, (a purported Bajrang Dal leader who also contested the Vadodara civic body elections on a BJP ticket), the other guardian of public morality who protested against the art student Chandra Mohan's work in a departmental exhibition at the Fine Arts Faculty at MS University Baroda happens to be a pastor with the Methodist Church, most appropriately named the Rev. Emmaneul Kant. See, a report on the Vadodara incident in the Vadodara City page of Indian Express 'BJP Men rough up fine arts student'(Express News Service, May 9) at http://cities.expressindia.com/archivefullstory.php?newsid=235608&creation_date=2007-05-10 Apart from the fact that this incident shows a beautiful secular synergy between majoritarian and minoritarian interests (thereby confusing all those who spend most of their time worrying about majoritarian communalism, especially when it comes to the province of Gujarat), there has to be adequate recognition, I think of the magical facticity in knowing that a protest against a work of art is being led (at least in part) by an Emmanuel Kant. For all those familiar with the Vadodara pastor's distinguished Konigsbergian philosopher namesake, Emmanuel (or Immanuel) Kant's 'Critique of Judgement' (a book that continues to be influential enough in discussions of contemporary aesthetic practice and thought to be seen hovering around the curatorial mandate of Documenta 12 and other serious matters like a spirit that got stuck in limbo after a mistimed seance), the delicate ironies of this haunting of the Vadodara controversy by the ghost of Kant cannot be escaped. In his Critique of Judgement,(and I quote, for the sake of convenience, from the excellent, online entry in the Internet Encyclopaedia of Philosophy) http://www.iep.utm.edu/k/kantaest.htm Kant can be found paraphrased as saying : "through aesthetic judgments, beautiful objects appear to be 'purposive without purpose' (sometimes translated as 'final without end'). An object's purpose is the concept according to which it was made (the concept of a vegetable soup in the mind of the cook, for example); an object is purposive if it appears to have such a purpose; if, in other words, it appears to have been made or designed. But it is part of the experience of beautiful objects, Kant argues, that they should affect us as if they had a purpose, although no particular purpose can be found." Now a Kantian, confronted with Chandramohan's work, Jain & Kant led protests, and the sections 153 and 295 of the Indian Penal Code, would not be in any position to wriggle out of the problem of 'aesthetic intention'. If Chandramohan is an artist, his work would affect us as if they had a purpose, even if no particular purpose were to be found. The only legal solution available under the Indian legal system, in my opinion, is for Chandramohan to say that he is not an artist, but a mere impostor, and that his work, is not purposive, or intentional, but the mere outpouring of a distracted, and demented mind. What I am suggesting, is the insanity defence, as used in a murder trial. In other words the - 'My Lord, my client was not of sound mind, he did not know what he was doing, when he shot the plaintiff's aged mother' maneouvre. If Chandramohan is an artist, then the courts will look at intention. And as in a murder trial, the calibration of intention can lead to a degree of dimunition of a sentence from homicide to manslaughter, but cannot do away with the fact of the offence. I say this neither to attack Chandramohan's work, nor to defend his practice (although I have no doubt in my mind that the freedome of expression is a higher good than artistic quality or religious sensibility). I say this only to underscore the problems of aesthetic intention, ethical conduct and legal judgement that this case seems to have thrown open, perhaps at the instance of the long neglected spectre of the venerable I(E)mmanel Kant From prashantiyengar at gmail.com Sat May 12 20:52:33 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Sat, 12 May 2007 20:52:33 +0530 Subject: [Commons-Law] Protest Demonstration agains events in Baroda: From Lalit Batra In-Reply-To: <46457494.1030002@sarai.net> References: <46457494.1030002@sarai.net> Message-ID: <908adbd0705120822r1a9b644enbffd18fe93ca9b2f@mail.gmail.com> Dear Shuddha, Thanks for this extremely enlightening series of posts. What is happening in Baroda is a shameful reminder of the extent to which jingoistic communalism is still a regular feature of life in Gujarat. Just wanted to add my tuppence on the specific charges that have been made against him, I think the possibility of conviction under Section 153A (Promoting enmity between communities to the prejudice of public tranquility) is remote if one goes strictly according to its wording and the way that section has been interpreted. In a recent case of Manzar Sayeed Khan v State of Maharashtra (the Shivaji book case) the Supreme Court held that "The gist of the offence is the intention to promote feelings of enmity or hatred between different classes of people. The intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153A of IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused." So more than merely proving the intention to paint the particular image, it is the intention to cause disorder or incite people of different communities to violence that must be established. Whilst I don't for a moment underestimate the extent of politicisation of the lower judiciary in Gujarat, I think it will take fairly complicated judicial pirouettes for this charge to stick. The fact that far from fighting, the two communities are united in their opposition to the painting is also something I don't think can be ignored. AFAIK there is no offence in the IPC of "uniting people of different communities to violence against the offender". As an aside, I think it would be interesting to challenge the very existence of "public tranquility" which the section assumes the accused has disturbed. The section does not make an offence out of an innocent act committed in an atmosphere of hatred. On the charges under Section 295A (Deliberate/Malicious acts with intent to outrage religious feelings), here is Das, J's explanation of the section in RAMJI LAL MODI vs State of UP: "[The Section] does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deli. berate or malicious intention to outrage the religious feelings of that class do not come within the section. It only Punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class." Ok, I know it is offensive to describe art as "unwitting" or "careless" but within the context (wits/care to outrage religious feelings), I think it is. Anyway.. just my somewhat hurriedly compiled thoughts. Cannot be in Baroda for this demonstration. I wish Baroda was in AP. Regards, Prashant On 5/12/07, Shuddhabrata Sengupta wrote: > > Dear All, > > (apologies for cross posting on Vikalp, Commons Law, Reader List and CAC > lists) > > I have recieved a mail from Lalit Batra, about a protest demonstration > against Chandramohan's (the MSU Baroda art student) and the closure of > exhibitions at the faculty of fine arts, MSU Baroda, and the suspension > of faculty (Shivji Pannickar) planned for tomorrow, 12th of May, at 3 > p.m. at Gujarat Bhawan, Chanakya Puri, Near Ashoka Hotel, New Delhi. > > Anyone wanting to contact Lalit Batra about this (or for more > information can call Lalit at 9899091413) > > I am pasting the message from members of the faculty (Bina Sriniviasand > and Shivji Panickkar) that Lalit circulated below. Although everyone on > this list is by now familiar with this story, this notice does have > details of the sections of the penal code under which Chandramohan is > being charged - Sections 153A and 114, along with Section 295. I would > urge everyone to pay attention especially to the wonderful alliance > between VHP activists and Christian priests in Gujarat, against the > freedom of expression of a student. > > Further, here are some details about the relevant sections: > > Section 153A: Promoting enmity between different groups on grounds of > religion, race etc, commiting acts prejudicial to the harmony of the > public > > According to the section whoever by words or expression promotes enmity > between different groups of the country on the grounds of religion, > race, place of birth, residence, language, or any such grounds or > commits an act which is prejudicial to the harmony of he public is > culpable under the section with imprisonment which may extend to three > years with or without fine. Further, when the offence is committed on > any religious place or any place worship the imprisonment can extend to > 5 years with or without fine. The offence is non-bailable and even > cognizable (after 1898) ie. Police can arrest a person under the section > without warrant. > > > Section 295: Injuring or defiling place of worship with intent to insult > the religion of any class > > Whoever destroys, damages or defiles any place of worship, or any object > held sacred by any class of persons with the intention of thereby > insulting the religion of any class of persons or with the knowledge > that any class of persons is likely to consider such destruction, damage > or defilement as a insult to their religion, shall be punished with > imprisonment of either description for a term which may extend to two > years, or with fine, or with both. > > Section 295A: Deliberate and malicious acts intended to outrage > religious feelings > > Deliberate and malicious acts, intended to outrage religious feelings or > any class by insulting its religion or religious beliefs 295A. > Deliberate and malicious acts, intended to outrage religious feelings or > any class by insulting its religion or religious beliefs. > > Whoever, with deliberate and malicious intention of outraging the > religious feelings of any class of citizens of India, by words, either > spoken or written, or by signs or by visible representations or > otherwise, insults or attempts to insult the religion or the religious > beliefs of that class, shall be punished with imprisonment of either > description for a term which may extend to three years, or with fine, or > with both. > > Section 114 is about abetment and presence when any crime is being > committed. > > As a close reading of these sections would suggest, the problem lies not > only with the act, but also with the idea of intention. > > The problem is, Chandramohan's lawyers can at best argue that his > actions are not evidence of his intentions. However, an artist is such > only because his actions have deliberation. Thus, to save Chandramohan > the person from a prison sentence, his lawyers might have to jettison > Chandramohan's identity as an artist. Such an argument, given the > circumstances that the images in question were made for an exam of the > fine arts department, may be impossible, or at the very least, difficult > to sustain, > > The reason that distinguishes between the scrawls made by a chimpanzee > and an abstract expressionist has to do with the idea of intention. To > protect Chandramohan's act as an instance of un0 malicious behavious, it > has to be freed from the matrix of artistic intention. We cannot really > quarrel about the purport of the intention, because the onus of proving > hurt, has to do not with the hurter, but with the hurtee. > > Hurt, is a subjective feeling, and as long as the hurt say that they > feel their pain, we are in no position to debate whether their pain or > humiliation is real or imagined. There cannot, in fact be, imagined or > feigned pain, because a court is in no position to measure the intensity > of feeling on any given issue. Thus when a person says that their > religious sensibilities are hurt, a court has to listen, (if the injury > to sensibilities is mentioned as a cause of harm). Chandramohan cannot > say that he intended to cause pain. He can only say that he intended to > cause meaning to be read into his actions. If someone says that they > read meaning in his actions in a manner that caused them pain, there is > very little that Chandramohan or his lawyers can say in defence against > such a charge > > The only thing that can be debated is the question of whether or not > there was 'intention'in the first place. As an artist, Chandramohan > cannot run away from intention. > > Therefore the only recourse that anyone wishing to protect the freedom > of speech in this case is to subject the law itself to criticism, not to > speculate about whether it's application in this case is an instance of > its misreading. > > This means arguing for a straightforward assault on sections 153 and > 295. The only way that an artist or a writer's freedom of speech can be > protected against religious zealots is through a complete and total > repeal of sections 153 and 295. > > Having said that, arguing for these provisions to be struck down also > means accepting the right of the Hindutva forces to insult and (through > speech acts, signs, and visual representations) humiliate and attack > people of other religions and convictions. > > I have no problem with that, but many who will rightly condemn the > freedom of Chandramohan to act as he has done, will also call for bans > on the 'hate speech' of those who have moved the machinery of law and > order against him. > > Let it be understood that to do that will only invite further assaults > on the freedom of art students like Chandramohan in the future. > Meanwhile, I would urge everyone to attend as many meetings and > protests, as possible on this issue, and make people aware of the > draconian nature of sections 153 and 295. > > best > > Shuddha > > > Dear All, > > You are all aware of the latest Sangh Parivar > offensive against the > democratic rights of the students and Faculty members > of the well known Fine > Arts Faculty of Baroda, M.S.University. The Fine Arts > Faculty is one of the > best institutions within the M.S.University, which has > managed to retain > high academic standards, in the face of the general > academic deterioration > within the University. > > The recent incident of hooliganism and blatant > bullying unleashed by the > Sangh Parivar has sent shock waves all over the > country. It took place on > Wednesday, 9th May 2007, at around 3 p.m. As part of > the examination > procedure underway in the Faculty, students are > supposed to put up their > works which are to be assessed by external examiners > who come in from > outside the city for this purpose. Accordingly, > students had put up their > installations around the Faculty campus. Some of > these installations, > (graphic prints) by Chandra Mohan attracted the wrath > of the BJP leader > Neeraj Jain, who barged into the campus with a bunch > of goons and started > disrupting the atmosphere, using abusive language and > mouthing threats. > They roughed up the Chandra Mohan and accused him of > offending their > religious sentiments, saying that he had portrayed > Durga Mata in an obscene > way. Not by any stretch of imagination did the prints > actually portray any > goddess. Under the leadership of Neeraj Jain (who had > incidentally played a > very dubious role in the May 2006 riots that followed > the demolition of a > 200 year old dargah in the heart of the city), and > with the police in tow, > they took Chandra Mohan and a friend of his away to > the Sayajiganj police > station. Shivji Panickkar, the acting Dean of the > Fine Arts Faculty, was > also threatened with dire consequences by Neeraj Jain > and his goons. > Chandra Mohan's friend was released later, but he was > himself charged under > sections 153 and 114. Later, on 10th May, when the > bail application came up > for hearing, two more charges were slapped on him, > namely, Section 295 A and > 295 B, and he was taken under judicial custody, and > moved to the Central > Jail. By now, Christian fundamentalists had joined > hands with the > Hindutvavadis. Alongwith the VHP and BJP crowds, > reportedly, there were at > least 40 priests in the court when Chandra Mohan's > bail application came up > for hearing. The priests were objecting to some > painting to do with a > cross - which, they thought offended their religious > feelings. > > In the meantime, Shivji Panickkar met the Vice > Chancellor, who basically, > wanted him to make a statement that was nothing short > of an apology for > putting up offensive installations. Panickkar refused > to do so. After > this, the students submitted a statement expressing > thier concern over such > tactics, and with a set of their demands, which > included police bandobast > for the Faculty. Reportedly, Neeraj Jain barged into > the Vice Chancellor's > office on the same day, and threatened that he would > make sure that the > entire city would shut down if a single case is > registered against him. > > As of now, all efforts are on to get Chandra Mohan > released. > > However, what is of grave concern in this entire > unfolding of events is the > fascist agendas that underly the actions of the likes > of Neeraj Jain. > Citizenship and democratic rights face a grave crisis > in the State of > Gujarat and elsewhere. The nexus between the police > and elements of the > Sangh Parivar is so clearly established (it has been > so since 2002) and it > is also clear that fascist tactics affect everybody. > In this instance, it > is not only a matter for the artist community to > agitate about. It is for > ALL of us to sit up and take notice of what is going > on in the name of > religion. If we do not counter these tactics NOW, we > are all going to be > crushed sooner or later, either in our work arenas or > within the confines of > our homes. The dangers of giving in to or being cowed > down by these forces > cannot be underestimated. > > THE FACULTY OF FINE ARTS HAS PLANNED A LARGE > DEMONSTRATION FOR 14TH MAY > 2007, MONDAY WHERE ARTISTS, LAWYERS, DOCTORS, ORDINARY > CITIZENS FROM ALL > OVER THE COUNTRY WILL GET TOGETHER IN PROTEST AGAINST > SUCH GAGGING OF > EXPRESSION AND VIOLATION OF DEMOCRATIC RIGHTS. PLEASE > DO COME FOR THE > DEMONSTRATION, AND MOTIVATE OTHERS TO JOIN IT. THE > TIME TO ACT IS UPON US, > WE CANNOT ABDICATE OUR RESPONSIBILITY TOWARDS SOCIETY, > OURSELVES AND THE > YOUNGER GENERATIONS. > > VENUE: FINE ARTS FACULTY, M.S.UNIVERSITY , FATEHGANJ, > BARODA > TIME: 2 PM ONWARDS > > CONTACT PHONE NUMBERS: > BINA SRINIVASAN: 9879377280 > SHIVJI PANICKKAR: 9898403097 > > Best > Bina > > PS: pls. circulate this email to as many people as > possible. Thanks. > > > > ___________________________________________________________ > Yahoo! Answers - Got a question? Someone out there knows the answer. Try > it > now. > http://uk.answers.yahoo.com/ > > _______________________________________________ > Foil-l mailing list > Foil-l at insaf.net > http://insaf.net/mailman/listinfo/foil-l_insaf.net > > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070512/95fd9d82/attachment.html From anilg at sristi.org Sun May 13 10:29:59 2007 From: anilg at sristi.org (anil gupta) Date: Sun, 13 May 2007 10:29:59 +0530 Subject: [Commons-Law] Protest Demonstration against events in Baroda: In-Reply-To: <908adbd0705120822r1a9b644enbffd18fe93ca9b2f@mail.gmail.com> References: <46457494.1030002@sarai.net> <908adbd0705120822r1a9b644enbffd18fe93ca9b2f@mail.gmail.com> Message-ID: <46469B4F.6020204@sristi.org> thanks Shuddha and prashant for illuminating posts. My suggestion is that in addition to all the ideas that are emerging on the subject, an appeal by eminent artists of India may l have a wider impact because art can and indeed needs to be judged not by artists alone. They have a right to comment on the historical relevance of showing connections between tradition and modern as was being attempted in the exhibition. I feel very sad and hope that the wiser sense will prevail, young student will not get demoralized and will in fact gather greater fortitudinous strength from it, some of these experiences are not bad in the life of young artists and scholars if only to cement their resolutions. India is transforming and the greater freedom of expression will only hasten this transformation. I hope that the dean will be reinstated honourably and the VC will say sorry to him, for all that he did. May be i am naive. anil Prashant Iyengar wrote: > Dear Shuddha, > Thanks for this extremely enlightening series of posts. What is > happening in Baroda is a shameful reminder of the extent to which > jingoistic communalism is still a regular feature of life in Gujarat. > Just wanted to add my tuppence on the specific charges that have been > made against him, > > I think the possibility of conviction under Section 153A (Promoting > enmity between communities to the prejudice of public tranquility) is > remote if one goes strictly according to its wording and the way that > section has been interpreted. In a recent case of Manzar Sayeed Khan v > State of Maharashtra (the Shivaji book case) the Supreme Court held that > "The gist of the offence is the intention to promote feelings of > enmity or hatred between different classes of people. The intention to > cause disorder or incite the people to violence is the sine qua non of > the offence under Section 153A of IPC and the prosecution has to prove > prima facie the existence of mens rea on the part of the accused." > > So more than merely proving the intention to paint the particular > image, it is the intention to cause disorder or incite people of > different communities to violence that must be established. Whilst I > don't for a moment underestimate the extent of politicisation of the > lower judiciary in Gujarat, I think it will take fairly complicated > judicial pirouettes for this charge to stick. The fact that far from > fighting, the two communities are united in their opposition to the > painting is also something I don't think can be ignored. AFAIK there > is no offence in the IPC of "uniting people of different communities > to violence against the offender". > As an aside, I think it would be interesting to challenge the very > existence of "public tranquility" which the section assumes the > accused has disturbed. The section does not make an offence out of an > innocent act committed in an atmosphere of hatred. > > On the charges under Section 295A (Deliberate/Malicious acts with > intent to outrage religious feelings), here is Das, J's explanation of > the section in RAMJI LAL MODI vs State of UP: > "[The Section] does not penalise any and every act of insult to or > attempt to insult the religion or the religious beliefs of a class of > citizens but it penalises only those acts of insults to or those > varieties of attempts to insult the religion or the religious beliefs > of a class of citizens, which are perpetrated with the deliberate and > malicious intention of outraging the religious feelings of that class. > Insults to religion offered unwittingly or carelessly or without any > deli. berate or malicious intention to outrage the religious feelings > of that class do not come within the section. It only Punishes the > aggravated form of insult to religion when it is perpetrated with the > deliberate and malicious intention of outraging the religious feelings > of that class." > > Ok, I know it is offensive to describe art as "unwitting" or > "careless" but within the context (wits/care to outrage religious > feelings), I think it is. > > Anyway.. just my somewhat hurriedly compiled thoughts. > Cannot be in Baroda for this demonstration. I wish Baroda was in AP. > Regards, > Prashant > > On 5/12/07, * Shuddhabrata Sengupta* > wrote: > > Dear All, > > (apologies for cross posting on Vikalp, Commons Law, Reader List > and CAC > lists) > > I have recieved a mail from Lalit Batra, about a protest demonstration > against Chandramohan's (the MSU Baroda art student) and the > closure of > exhibitions at the faculty of fine arts, MSU Baroda, and the > suspension > of faculty (Shivji Pannickar) planned for tomorrow, 12th of May, at 3 > p.m. at Gujarat Bhawan, Chanakya Puri, Near Ashoka Hotel, New Delhi. > > Anyone wanting to contact Lalit Batra about this (or for more > information can call Lalit at 9899091413) > > I am pasting the message from members of the faculty (Bina > Sriniviasand > and Shivji Panickkar) that Lalit circulated below. Although > everyone on > this list is by now familiar with this story, this notice does have > details of the sections of the penal code under which Chandramohan is > being charged - Sections 153A and 114, along with Section 295. I would > urge everyone to pay attention especially to the wonderful alliance > between VHP activists and Christian priests in Gujarat, against the > freedom of expression of a student. > > Further, here are some details about the relevant sections: > > Section 153A: Promoting enmity between different groups on grounds of > religion, race etc, commiting acts prejudicial to the harmony of > the public > > According to the section whoever by words or expression promotes > enmity > between different groups of the country on the grounds of religion, > race, place of birth, residence, language, or any such grounds or > commits an act which is prejudicial to the harmony of he public is > culpable under the section with imprisonment which may extend to > three > years with or without fine. Further, when the offence is committed on > any religious place or any place worship the imprisonment can > extend to > 5 years with or without fine. The offence is non-bailable and even > cognizable (after 1898) ie. Police can arrest a person under the > section > without warrant. > > > Section 295: Injuring or defiling place of worship with intent to > insult > the religion of any class > > Whoever destroys, damages or defiles any place of worship, or any > object > held sacred by any class of persons with the intention of thereby > insulting the religion of any class of persons or with the knowledge > that any class of persons is likely to consider such destruction, > damage > or defilement as a insult to their religion, shall be punished with > imprisonment of either description for a term which may extend to two > years, or with fine, or with both. > > Section 295A: Deliberate and malicious acts intended to outrage > religious feelings > > Deliberate and malicious acts, intended to outrage religious > feelings or > any class by insulting its religion or religious beliefs 295A. > Deliberate and malicious acts, intended to outrage religious > feelings or > any class by insulting its religion or religious beliefs. > > Whoever, with deliberate and malicious intention of outraging the > religious feelings of any class of citizens of India, by words, either > spoken or written, or by signs or by visible representations or > otherwise, insults or attempts to insult the religion or the religious > beliefs of that class, shall be punished with imprisonment of either > description for a term which may extend to three years, or with > fine, or > with both. > > Section 114 is about abetment and presence when any crime is being > committed. > > As a close reading of these sections would suggest, the problem > lies not > only with the act, but also with the idea of intention. > > The problem is, Chandramohan's lawyers can at best argue that his > actions are not evidence of his intentions. However, an artist is such > only because his actions have deliberation. Thus, to save > Chandramohan > the person from a prison sentence, his lawyers might have to jettison > Chandramohan's identity as an artist. Such an argument, given the > circumstances that the images in question were made for an exam of the > fine arts department, may be impossible, or at the very least, > difficult > to sustain, > > The reason that distinguishes between the scrawls made by a chimpanzee > and an abstract expressionist has to do with the idea of > intention. To > protect Chandramohan's act as an instance of un0 malicious > behavious, it > has to be freed from the matrix of artistic intention. We cannot > really > quarrel about the purport of the intention, because the onus of > proving > hurt, has to do not with the hurter, but with the hurtee. > > Hurt, is a subjective feeling, and as long as the hurt say that they > feel their pain, we are in no position to debate whether their pain or > humiliation is real or imagined. There cannot, in fact be, > imagined or > feigned pain, because a court is in no position to measure the > intensity > of feeling on any given issue. Thus when a person says that their > religious sensibilities are hurt, a court has to listen, (if the > injury > to sensibilities is mentioned as a cause of harm). Chandramohan cannot > say that he intended to cause pain. He can only say that he > intended to > cause meaning to be read into his actions. If someone says that they > read meaning in his actions in a manner that caused them pain, > there is > very little that Chandramohan or his lawyers can say in defence > against > such a charge > > The only thing that can be debated is the question of whether or not > there was 'intention'in the first place. As an artist, Chandramohan > cannot run away from intention. > > Therefore the only recourse that anyone wishing to protect the freedom > of speech in this case is to subject the law itself to criticism, > not to > speculate about whether it's application in this case is an > instance of > its misreading. > > This means arguing for a straightforward assault on sections 153 and > 295. The only way that an artist or a writer's freedom of speech > can be > protected against religious zealots is through a complete and total > repeal of sections 153 and 295. > > Having said that, arguing for these provisions to be struck down also > means accepting the right of the Hindutva forces to insult and > (through > speech acts, signs, and visual representations) humiliate and attack > people of other religions and convictions. > > I have no problem with that, but many who will rightly condemn the > freedom of Chandramohan to act as he has done, will also call for > bans > on the 'hate speech' of those who have moved the machinery of law and > order against him. > > Let it be understood that to do that will only invite further assaults > on the freedom of art students like Chandramohan in the future. > Meanwhile, I would urge everyone to attend as many meetings and > protests, as possible on this issue, and make people aware of the > draconian nature of sections 153 and 295. > > best > > Shuddha > > > Dear All, > > You are all aware of the latest Sangh Parivar > offensive against the > democratic rights of the students and Faculty members > of the well known Fine > Arts Faculty of Baroda, M.S.University. The Fine Arts > Faculty is one of the > best institutions within the M.S.University, which has > managed to retain > high academic standards, in the face of the general > academic deterioration > within the University. > > The recent incident of hooliganism and blatant > bullying unleashed by the > Sangh Parivar has sent shock waves all over the > country. It took place on > Wednesday, 9th May 2007, at around 3 p.m. As part of > the examination > procedure underway in the Faculty, students are > supposed to put up their > works which are to be assessed by external examiners > who come in from > outside the city for this purpose. Accordingly, > students had put up their > installations around the Faculty campus. Some of > these installations, > (graphic prints) by Chandra Mohan attracted the wrath > of the BJP leader > Neeraj Jain, who barged into the campus with a bunch > of goons and started > disrupting the atmosphere, using abusive language and > mouthing threats. > They roughed up the Chandra Mohan and accused him of > offending their > religious sentiments, saying that he had portrayed > Durga Mata in an obscene > way. Not by any stretch of imagination did the prints > actually portray any > goddess. Under the leadership of Neeraj Jain (who had > incidentally played a > very dubious role in the May 2006 riots that followed > the demolition of a > 200 year old dargah in the heart of the city), and > with the police in tow, > they took Chandra Mohan and a friend of his away to > the Sayajiganj police > station. Shivji Panickkar, the acting Dean of the > Fine Arts Faculty, was > also threatened with dire consequences by Neeraj Jain > and his goons. > Chandra Mohan's friend was released later, but he was > himself charged under > sections 153 and 114. Later, on 10th May, when the > bail application came up > for hearing, two more charges were slapped on him, > namely, Section 295 A and > 295 B, and he was taken under judicial custody, and > moved to the Central > Jail. By now, Christian fundamentalists had joined > hands with the > Hindutvavadis. Alongwith the VHP and BJP crowds, > reportedly, there were at > least 40 priests in the court when Chandra Mohan's > bail application came up > for hearing. The priests were objecting to some > painting to do with a > cross - which, they thought offended their religious > feelings. > > In the meantime, Shivji Panickkar met the Vice > Chancellor, who basically, > wanted him to make a statement that was nothing short > of an apology for > putting up offensive installations. Panickkar refused > to do so. After > this, the students submitted a statement expressing > thier concern over such > tactics, and with a set of their demands, which > included police bandobast > for the Faculty. Reportedly, Neeraj Jain barged into > the Vice Chancellor's > office on the same day, and threatened that he would > make sure that the > entire city would shut down if a single case is > registered against him. > > As of now, all efforts are on to get Chandra Mohan > released. > > However, what is of grave concern in this entire > unfolding of events is the > fascist agendas that underly the actions of the likes > of Neeraj Jain. > Citizenship and democratic rights face a grave crisis > in the State of > Gujarat and elsewhere. The nexus between the police > and elements of the > Sangh Parivar is so clearly established (it has been > so since 2002) and it > is also clear that fascist tactics affect everybody. > In this instance, it > is not only a matter for the artist community to > agitate about. It is for > ALL of us to sit up and take notice of what is going > on in the name of > religion. If we do not counter these tactics NOW, we > are all going to be > crushed sooner or later, either in our work arenas or > within the confines of > our homes. The dangers of giving in to or being cowed > down by these forces > cannot be underestimated. > > THE FACULTY OF FINE ARTS HAS PLANNED A LARGE > DEMONSTRATION FOR 14TH MAY > 2007, MONDAY WHERE ARTISTS, LAWYERS, DOCTORS, ORDINARY > CITIZENS FROM ALL > OVER THE COUNTRY WILL GET TOGETHER IN PROTEST AGAINST > SUCH GAGGING OF > EXPRESSION AND VIOLATION OF DEMOCRATIC RIGHTS. PLEASE > DO COME FOR THE > DEMONSTRATION, AND MOTIVATE OTHERS TO JOIN IT. THE > TIME TO ACT IS UPON US, > WE CANNOT ABDICATE OUR RESPONSIBILITY TOWARDS SOCIETY, > OURSELVES AND THE > YOUNGER GENERATIONS. > > VENUE: FINE ARTS FACULTY, M.S.UNIVERSITY , FATEHGANJ, > BARODA > TIME: 2 PM ONWARDS > > CONTACT PHONE NUMBERS: > BINA SRINIVASAN: 9879377280 > SHIVJI PANICKKAR: 9898403097 > > Best > Bina > > PS: pls. circulate this email to as many people as > possible. Thanks. > > > > ___________________________________________________________ > Yahoo! Answers - Got a question? Someone out there knows the > answer. Try it > now. > http://uk.answers.yahoo.com/ > > _______________________________________________ > Foil-l mailing list > Foil-l at insaf.net > http://insaf.net/mailman/listinfo/foil-l_insaf.net > > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > > > ------------------------------------------------------------------------ > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > -- Prof. Anil K Gupta Professor, Indian Institute of Management Ahmedabad 380015, India anilg at sristi.org or anilgb at gmail.com -------------------------------------------------------------------- Personal Page: http://www.iimahd.ernet.in/~anilg/ SRISTI Page: http://www.sristi.org, GIAN Page: http://www.gian.org NIF : www.nifindia.org www.nif.org.in blog: sristi.org/anilg National Innovation Foundation (NIF): http://www.nifindia.org Phone Numbers: (0) +91 (79) 2632 4927 (o) +91 79 2630 4979 ( r), 2630 9973 O ), 2632 4930 ( secty); Fax Number: +91 (79) 26307341 From anilg at sristi.org Sun May 13 11:02:34 2007 From: anilg at sristi.org (anil gupta) Date: Sun, 13 May 2007 11:02:34 +0530 Subject: [Commons-Law] Baroda, Immanuel Kant and the Indian Penal Code: how do we read intentions In-Reply-To: <4646A253.6020700@sristi.org> References: <4645C01D.4010909@sarai.net> <4646A253.6020700@sristi.org> Message-ID: <4646A2F2.6000100@sristi.org> anil gupta wrote: > > > *excellent issues Shuddha: in a conundrum of intention, action and > consequence, we can see the last two: The painting by Chandra mohan > and its ability to unite Christian and Hindu activists. We can also > See THE consequence of jail for Chandra. But inferring intention of > Chandra is a task that can not left to Jurist alone. But then as you > imply, they are the one who will pass judgments. So what do we do, > well, some petitions could be fileby the citizens affected by the > consequences of the art and thus demonstrate the differential effect > of the same art. > > I wish some body will post his art work on this list so that we all > can see what he really painted. When Ram Guha infers the intentions of > JP, he does the same. When editor of Le Monde had to infer the > intentions the journalist who discovered Concentration camps in Russia > ( read The Mandarins ), he had to do the same. He had to evaluate the > impact of this discovery on the social agenda of the Left. > > So Shuddha, issues you raise are very vital and i hope these will > trigger a wider debate in India about inferring intentions of those > with whom we do not agree and on whose actions we pass judgments, an > enterprise we all indulge in all the time. > Sherlock Holmes had a somewhat similar issue to face when he asked, > Why did Dog not bark? He had at least linked intention with inaction, > > will we remember the lines of Dinkar: > pap ka bhagi nahin hai keval vyagh, jo tatastha hai, samaya likhega, > unka bhi apradh > > anil > > SOME MORE REFERENCES ON INFERRING INTENTIONS IN ART > > > > > > * > > > Art and Intention: A Philosophical Study > > Paisley Livingston, /Art and Intention: A Philosophical Study/, Oxford > University Press, 2005, 272 pp, $55.00 (hbk), ISBN 0199278067. > > * > The Concept of Intention in Art Criticism* > > Isabel C. Hungerland > > /The Journal of Philosophy/, Vol. 52, No. 24, American Philosophical > Association Eastern > > Division Symposium: Papers to be Presented at the Fifty-Second Annual > Meeting, Boston > > University, December 27-29, 1955. (Nov. 24, 1955), pp. 733-742. > > Shuddhabrata Sengupta wrote: >> (apologies for cross posting on the Reader List, Commons law and >> www.kafila.org) >> >> Dear All, >> >> This is in continuation of my earlier posting about the incident at >> the MS University at Vadodara and the relevant sections of the Indian >> Penal Code. >> >> It is one of the wonderful properties of South Asian subcontinental >> life that reality is always better adorned than fiction would have it. >> >> And so it is that along with Mr. Niraj Jain, (a purported Bajrang Dal >> leader who also contested the Vadodara civic body elections on a BJP >> ticket), the other guardian of public morality who protested against >> the art student Chandra Mohan's work in a departmental exhibition at >> the Fine Arts Faculty at MS University Baroda happens to be a pastor >> with the Methodist Church, most appropriately named the Rev. Emmaneul >> Kant. >> >> See, a report on the Vadodara incident in the Vadodara City page of >> Indian Express 'BJP Men rough up fine arts student'(Express News >> Service, May 9) at >> http://cities.expressindia.com/archivefullstory.php?newsid=235608&creation_date=2007-05-10 >> >> >> Apart from the fact that this incident shows a beautiful secular >> synergy between majoritarian and minoritarian interests (thereby >> confusing all those who spend most of their time worrying about >> majoritarian communalism, especially when it comes to the province of >> Gujarat), there has to be adequate recognition, I think of the >> magical facticity in knowing that a protest against a work of art is >> being led (at least in part) by an Emmanuel Kant. >> >> For all those familiar with the Vadodara pastor's distinguished >> Konigsbergian philosopher namesake, Emmanuel (or Immanuel) Kant's >> 'Critique of Judgement' (a book that continues to be influential >> enough in discussions of contemporary aesthetic practice and thought >> to be seen hovering around the curatorial mandate of Documenta 12 and >> other serious matters like a spirit that got stuck in limbo after a >> mistimed seance), the delicate ironies of this haunting of the >> Vadodara controversy by the ghost of Kant cannot be escaped. >> >> In his Critique of Judgement,(and I quote, for the sake of >> convenience, from the excellent, online entry in the Internet >> Encyclopaedia of Philosophy) http://www.iep.utm.edu/k/kantaest.htm >> >> Kant can be found paraphrased as saying : >> >> "through aesthetic judgments, beautiful objects appear to be >> 'purposive without purpose' (sometimes translated as 'final without >> end'). An object's purpose is the concept according to which it was >> made (the concept of a vegetable soup in the mind of the cook, for >> example); an object is purposive if it appears to have such a >> purpose; if, in other words, it appears to have been made or >> designed. But it is part of the experience of beautiful objects, Kant >> argues, that they should affect us as if they had a purpose, although >> no particular purpose can be found." >> >> Now a Kantian, confronted with Chandramohan's work, Jain & Kant led >> protests, and the sections 153 and 295 of the Indian Penal Code, >> would not be in any position to wriggle out of the problem of >> 'aesthetic intention'. If Chandramohan is an artist, his work would >> affect us as if they had a purpose, even if no particular purpose >> were to be found. >> >> The only legal solution available under the Indian legal system, in >> my opinion, is for Chandramohan to say that he is not an artist, but >> a mere impostor, and that his work, is not purposive, or intentional, >> but the mere outpouring of a distracted, and demented mind. What I am >> suggesting, is the insanity defence, as used in a murder trial. >> >> In other words the - 'My Lord, my client was not of sound mind, he >> did not know what he was doing, when he shot the plaintiff's aged >> mother' maneouvre. >> >> If Chandramohan is an artist, then the courts will look at intention. >> And as in a murder trial, the calibration of intention can lead to a >> degree of dimunition of a sentence from homicide to manslaughter, but >> cannot do away with the fact of the offence. >> >> I say this neither to attack Chandramohan's work, nor to defend his >> practice (although I have no doubt in my mind that the freedome of >> expression is a higher good than artistic quality or religious >> sensibility). I say this only to underscore the problems of aesthetic >> intention, ethical conduct and legal judgement that this case seems >> to have thrown open, perhaps at the instance of the long neglected >> spectre of the venerable I(E)mmanel Kant >> >> >> >> _______________________________________________ >> commons-law mailing list >> commons-law at sarai.net >> https://mail.sarai.net/mailman/listinfo/commons-law >> >> > -- Prof. Anil K Gupta Professor, Indian Institute of Management Ahmedabad 380015, India anilg at sristi.org or anilgb at gmail.com -------------------------------------------------------------------- Personal Page: http://www.iimahd.ernet.in/~anilg/ SRISTI Page: http://www.sristi.org, GIAN Page: http://www.gian.org NIF : www.nifindia.org www.nif.org.in blog: sristi.org/anilg National Innovation Foundation (NIF): http://www.nifindia.org Phone Numbers: (0) +91 (79) 2632 4927 (o) +91 79 2630 4979 ( r), 2630 9973 O ), 2632 4930 ( secty); Fax Number: +91 (79) 26307341 From prashantiyengar at gmail.com Tue May 15 00:15:49 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Tue, 15 May 2007 00:15:49 +0530 Subject: [Commons-Law] Protest Demonstration against events in Baroda: In-Reply-To: <46469B4F.6020204@sristi.org> References: <46457494.1030002@sarai.net> <908adbd0705120822r1a9b644enbffd18fe93ca9b2f@mail.gmail.com> <46469B4F.6020204@sristi.org> Message-ID: <908adbd0705141145m15a5069bw4262c1c75f3ef12b@mail.gmail.com> Hi, Finally some good news from Vadodara. Chandramohan has been granted bail.( http://www.dnaindia.com/report.asp?NewsID=1096774) Some other interesting links related to this story that I've come across: *Son in the eye of Gujarat storm, parents in Andhra clueless * http://www.newindpress.com/NewsItems.asp?ID=IEA20070514063838&Page=A&Title=Southern+News+-+Andhra+Pradesh&Topic=0 Niraj Jain's role in the Godhra carnage: http://www.sabrang.com/tribunal/volI/incivadodra.html ("Concerned Citizens Tribunal" report) http://www.jagori.org/wp-content/uploads/2006/03/what%20happened%20in%20gujarat.PDF Best, Prashant On 5/13/07, anil gupta wrote: > > thanks Shuddha and prashant for illuminating posts. My suggestion is > that in addition to all the ideas that are emerging on the subject, an > appeal by eminent artists of India may l have a wider impact because art > can and indeed needs to be judged not by artists alone. They have a > right to comment on the historical relevance of showing connections > between tradition and modern as was being attempted in the exhibition. > > I feel very sad and hope that the wiser sense will prevail, young > student will not get demoralized and will in fact gather greater > fortitudinous strength from it, some of these experiences are not bad in > the life of young artists and scholars if only to cement their > resolutions. > > India is transforming and the greater freedom of expression will only > hasten this transformation. > I hope that the dean will be reinstated honourably and the VC will say > sorry to him, for all that he did. May be i am naive. > > anil > > > > > > > > > Prashant Iyengar wrote: > > Dear Shuddha, > > Thanks for this extremely enlightening series of posts. What is > > happening in Baroda is a shameful reminder of the extent to which > > jingoistic communalism is still a regular feature of life in Gujarat. > > Just wanted to add my tuppence on the specific charges that have been > > made against him, > > > > I think the possibility of conviction under Section 153A (Promoting > > enmity between communities to the prejudice of public tranquility) is > > remote if one goes strictly according to its wording and the way that > > section has been interpreted. In a recent case of Manzar Sayeed Khan v > > State of Maharashtra (the Shivaji book case) the Supreme Court held that > > "The gist of the offence is the intention to promote feelings of > > enmity or hatred between different classes of people. The intention to > > cause disorder or incite the people to violence is the sine qua non of > > the offence under Section 153A of IPC and the prosecution has to prove > > prima facie the existence of mens rea on the part of the accused." > > > > So more than merely proving the intention to paint the particular > > image, it is the intention to cause disorder or incite people of > > different communities to violence that must be established. Whilst I > > don't for a moment underestimate the extent of politicisation of the > > lower judiciary in Gujarat, I think it will take fairly complicated > > judicial pirouettes for this charge to stick. The fact that far from > > fighting, the two communities are united in their opposition to the > > painting is also something I don't think can be ignored. AFAIK there > > is no offence in the IPC of "uniting people of different communities > > to violence against the offender". > > As an aside, I think it would be interesting to challenge the very > > existence of "public tranquility" which the section assumes the > > accused has disturbed. The section does not make an offence out of an > > innocent act committed in an atmosphere of hatred. > > > > On the charges under Section 295A (Deliberate/Malicious acts with > > intent to outrage religious feelings), here is Das, J's explanation of > > the section in RAMJI LAL MODI vs State of UP: > > "[The Section] does not penalise any and every act of insult to or > > attempt to insult the religion or the religious beliefs of a class of > > citizens but it penalises only those acts of insults to or those > > varieties of attempts to insult the religion or the religious beliefs > > of a class of citizens, which are perpetrated with the deliberate and > > malicious intention of outraging the religious feelings of that class. > > Insults to religion offered unwittingly or carelessly or without any > > deli. berate or malicious intention to outrage the religious feelings > > of that class do not come within the section. It only Punishes the > > aggravated form of insult to religion when it is perpetrated with the > > deliberate and malicious intention of outraging the religious feelings > > of that class." > > > > Ok, I know it is offensive to describe art as "unwitting" or > > "careless" but within the context (wits/care to outrage religious > > feelings), I think it is. > > > > Anyway.. just my somewhat hurriedly compiled thoughts. > > Cannot be in Baroda for this demonstration. I wish Baroda was in AP. > > Regards, > > Prashant > > > > On 5/12/07, * Shuddhabrata Sengupta* > > wrote: > > > > Dear All, > > > > (apologies for cross posting on Vikalp, Commons Law, Reader List > > and CAC > > lists) > > > > I have recieved a mail from Lalit Batra, about a protest > demonstration > > against Chandramohan's (the MSU Baroda art student) and the > > closure of > > exhibitions at the faculty of fine arts, MSU Baroda, and the > > suspension > > of faculty (Shivji Pannickar) planned for tomorrow, 12th of May, at > 3 > > p.m. at Gujarat Bhawan, Chanakya Puri, Near Ashoka Hotel, New Delhi. > > > > Anyone wanting to contact Lalit Batra about this (or for more > > information can call Lalit at 9899091413) > > > > I am pasting the message from members of the faculty (Bina > > Sriniviasand > > and Shivji Panickkar) that Lalit circulated below. Although > > everyone on > > this list is by now familiar with this story, this notice does have > > details of the sections of the penal code under which Chandramohan > is > > being charged - Sections 153A and 114, along with Section 295. I > would > > urge everyone to pay attention especially to the wonderful alliance > > between VHP activists and Christian priests in Gujarat, against the > > freedom of expression of a student. > > > > Further, here are some details about the relevant sections: > > > > Section 153A: Promoting enmity between different groups on grounds > of > > religion, race etc, commiting acts prejudicial to the harmony of > > the public > > > > According to the section whoever by words or expression promotes > > enmity > > between different groups of the country on the grounds of religion, > > race, place of birth, residence, language, or any such grounds or > > commits an act which is prejudicial to the harmony of he public is > > culpable under the section with imprisonment which may extend to > > three > > years with or without fine. Further, when the offence is committed > on > > any religious place or any place worship the imprisonment can > > extend to > > 5 years with or without fine. The offence is non-bailable and even > > cognizable (after 1898) ie. Police can arrest a person under the > > section > > without warrant. > > > > > > Section 295: Injuring or defiling place of worship with intent to > > insult > > the religion of any class > > > > Whoever destroys, damages or defiles any place of worship, or any > > object > > held sacred by any class of persons with the intention of thereby > > insulting the religion of any class of persons or with the knowledge > > that any class of persons is likely to consider such destruction, > > damage > > or defilement as a insult to their religion, shall be punished with > > imprisonment of either description for a term which may extend to > two > > years, or with fine, or with both. > > > > Section 295A: Deliberate and malicious acts intended to outrage > > religious feelings > > > > Deliberate and malicious acts, intended to outrage religious > > feelings or > > any class by insulting its religion or religious beliefs 295A. > > Deliberate and malicious acts, intended to outrage religious > > feelings or > > any class by insulting its religion or religious beliefs. > > > > Whoever, with deliberate and malicious intention of outraging the > > religious feelings of any class of citizens of India, by words, > either > > spoken or written, or by signs or by visible representations or > > otherwise, insults or attempts to insult the religion or the > religious > > beliefs of that class, shall be punished with imprisonment of either > > description for a term which may extend to three years, or with > > fine, or > > with both. > > > > Section 114 is about abetment and presence when any crime is being > > committed. > > > > As a close reading of these sections would suggest, the problem > > lies not > > only with the act, but also with the idea of intention. > > > > The problem is, Chandramohan's lawyers can at best argue that his > > actions are not evidence of his intentions. However, an artist is > such > > only because his actions have deliberation. Thus, to save > > Chandramohan > > the person from a prison sentence, his lawyers might have to > jettison > > Chandramohan's identity as an artist. Such an argument, given the > > circumstances that the images in question were made for an exam of > the > > fine arts department, may be impossible, or at the very least, > > difficult > > to sustain, > > > > The reason that distinguishes between the scrawls made by a > chimpanzee > > and an abstract expressionist has to do with the idea of > > intention. To > > protect Chandramohan's act as an instance of un0 malicious > > behavious, it > > has to be freed from the matrix of artistic intention. We cannot > > really > > quarrel about the purport of the intention, because the onus of > > proving > > hurt, has to do not with the hurter, but with the hurtee. > > > > Hurt, is a subjective feeling, and as long as the hurt say that they > > feel their pain, we are in no position to debate whether their pain > or > > humiliation is real or imagined. There cannot, in fact be, > > imagined or > > feigned pain, because a court is in no position to measure the > > intensity > > of feeling on any given issue. Thus when a person says that their > > religious sensibilities are hurt, a court has to listen, (if the > > injury > > to sensibilities is mentioned as a cause of harm). Chandramohan > cannot > > say that he intended to cause pain. He can only say that he > > intended to > > cause meaning to be read into his actions. If someone says that they > > read meaning in his actions in a manner that caused them pain, > > there is > > very little that Chandramohan or his lawyers can say in defence > > against > > such a charge > > > > The only thing that can be debated is the question of whether or not > > there was 'intention'in the first place. As an artist, Chandramohan > > cannot run away from intention. > > > > Therefore the only recourse that anyone wishing to protect the > freedom > > of speech in this case is to subject the law itself to criticism, > > not to > > speculate about whether it's application in this case is an > > instance of > > its misreading. > > > > This means arguing for a straightforward assault on sections 153 and > > 295. The only way that an artist or a writer's freedom of speech > > can be > > protected against religious zealots is through a complete and total > > repeal of sections 153 and 295. > > > > Having said that, arguing for these provisions to be struck down > also > > means accepting the right of the Hindutva forces to insult and > > (through > > speech acts, signs, and visual representations) humiliate and attack > > people of other religions and convictions. > > > > I have no problem with that, but many who will rightly condemn the > > freedom of Chandramohan to act as he has done, will also call for > > bans > > on the 'hate speech' of those who have moved the machinery of law > and > > order against him. > > > > Let it be understood that to do that will only invite further > assaults > > on the freedom of art students like Chandramohan in the future. > > Meanwhile, I would urge everyone to attend as many meetings and > > protests, as possible on this issue, and make people aware of the > > draconian nature of sections 153 and 295. > > > > best > > > > Shuddha > > > > > > Dear All, > > > > You are all aware of the latest Sangh Parivar > > offensive against the > > democratic rights of the students and Faculty members > > of the well known Fine > > Arts Faculty of Baroda, M.S.University. The Fine Arts > > Faculty is one of the > > best institutions within the M.S.University, which has > > managed to retain > > high academic standards, in the face of the general > > academic deterioration > > within the University. > > > > The recent incident of hooliganism and blatant > > bullying unleashed by the > > Sangh Parivar has sent shock waves all over the > > country. It took place on > > Wednesday, 9th May 2007, at around 3 p.m. As part of > > the examination > > procedure underway in the Faculty, students are > > supposed to put up their > > works which are to be assessed by external examiners > > who come in from > > outside the city for this purpose. Accordingly, > > students had put up their > > installations around the Faculty campus. Some of > > these installations, > > (graphic prints) by Chandra Mohan attracted the wrath > > of the BJP leader > > Neeraj Jain, who barged into the campus with a bunch > > of goons and started > > disrupting the atmosphere, using abusive language and > > mouthing threats. > > They roughed up the Chandra Mohan and accused him of > > offending their > > religious sentiments, saying that he had portrayed > > Durga Mata in an obscene > > way. Not by any stretch of imagination did the prints > > actually portray any > > goddess. Under the leadership of Neeraj Jain (who had > > incidentally played a > > very dubious role in the May 2006 riots that followed > > the demolition of a > > 200 year old dargah in the heart of the city), and > > with the police in tow, > > they took Chandra Mohan and a friend of his away to > > the Sayajiganj police > > station. Shivji Panickkar, the acting Dean of the > > Fine Arts Faculty, was > > also threatened with dire consequences by Neeraj Jain > > and his goons. > > Chandra Mohan's friend was released later, but he was > > himself charged under > > sections 153 and 114. Later, on 10th May, when the > > bail application came up > > for hearing, two more charges were slapped on him, > > namely, Section 295 A and > > 295 B, and he was taken under judicial custody, and > > moved to the Central > > Jail. By now, Christian fundamentalists had joined > > hands with the > > Hindutvavadis. Alongwith the VHP and BJP crowds, > > reportedly, there were at > > least 40 priests in the court when Chandra Mohan's > > bail application came up > > for hearing. The priests were objecting to some > > painting to do with a > > cross - which, they thought offended their religious > > feelings. > > > > In the meantime, Shivji Panickkar met the Vice > > Chancellor, who basically, > > wanted him to make a statement that was nothing short > > of an apology for > > putting up offensive installations. Panickkar refused > > to do so. After > > this, the students submitted a statement expressing > > thier concern over such > > tactics, and with a set of their demands, which > > included police bandobast > > for the Faculty. Reportedly, Neeraj Jain barged into > > the Vice Chancellor's > > office on the same day, and threatened that he would > > make sure that the > > entire city would shut down if a single case is > > registered against him. > > > > As of now, all efforts are on to get Chandra Mohan > > released. > > > > However, what is of grave concern in this entire > > unfolding of events is the > > fascist agendas that underly the actions of the likes > > of Neeraj Jain. > > Citizenship and democratic rights face a grave crisis > > in the State of > > Gujarat and elsewhere. The nexus between the police > > and elements of the > > Sangh Parivar is so clearly established (it has been > > so since 2002) and it > > is also clear that fascist tactics affect everybody. > > In this instance, it > > is not only a matter for the artist community to > > agitate about. It is for > > ALL of us to sit up and take notice of what is going > > on in the name of > > religion. If we do not counter these tactics NOW, we > > are all going to be > > crushed sooner or later, either in our work arenas or > > within the confines of > > our homes. The dangers of giving in to or being cowed > > down by these forces > > cannot be underestimated. > > > > THE FACULTY OF FINE ARTS HAS PLANNED A LARGE > > DEMONSTRATION FOR 14TH MAY > > 2007, MONDAY WHERE ARTISTS, LAWYERS, DOCTORS, ORDINARY > > CITIZENS FROM ALL > > OVER THE COUNTRY WILL GET TOGETHER IN PROTEST AGAINST > > SUCH GAGGING OF > > EXPRESSION AND VIOLATION OF DEMOCRATIC RIGHTS. PLEASE > > DO COME FOR THE > > DEMONSTRATION, AND MOTIVATE OTHERS TO JOIN IT. THE > > TIME TO ACT IS UPON US, > > WE CANNOT ABDICATE OUR RESPONSIBILITY TOWARDS SOCIETY, > > OURSELVES AND THE > > YOUNGER GENERATIONS. > > > > VENUE: FINE ARTS FACULTY, M.S.UNIVERSITY , FATEHGANJ, > > BARODA > > TIME: 2 PM ONWARDS > > > > CONTACT PHONE NUMBERS: > > BINA SRINIVASAN: 9879377280 > > SHIVJI PANICKKAR: 9898403097 > > > > Best > > Bina > > > > PS: pls. circulate this email to as many people as > > possible. Thanks. > > > > > > > > ___________________________________________________________ > > Yahoo! Answers - Got a question? Someone out there knows the > > answer. Try it > > now. > > http://uk.answers.yahoo.com/ > > > > _______________________________________________ > > Foil-l mailing list > > Foil-l at insaf.net > > http://insaf.net/mailman/listinfo/foil-l_insaf.net > > > > > > > > _______________________________________________ > > commons-law mailing list > > commons-law at sarai.net > > https://mail.sarai.net/mailman/listinfo/commons-law > > > > > > ------------------------------------------------------------------------ > > > > _______________________________________________ > > commons-law mailing list > > commons-law at sarai.net > > https://mail.sarai.net/mailman/listinfo/commons-law > > > > -- > Prof. Anil K Gupta > Professor, Indian Institute of Management > Ahmedabad 380015, India anilg at sristi.org or anilgb at gmail.com > -------------------------------------------------------------------- > Personal Page: http://www.iimahd.ernet.in/~anilg/ > SRISTI Page: http://www.sristi.org, > GIAN Page: http://www.gian.org > NIF : www.nifindia.org www.nif.org.in > blog: sristi.org/anilg > National Innovation Foundation (NIF): http://www.nifindia.org > Phone Numbers: (0) +91 (79) 2632 4927 (o) +91 79 2630 4979 ( r), > 2630 9973 O ), 2632 4930 ( secty); Fax Number: +91 (79) 26307341 > > > -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070515/f8d6a7ce/attachment.html From chansoobak at yahoo.com Fri May 18 17:12:43 2007 From: chansoobak at yahoo.com (chan park) Date: Fri, 18 May 2007 04:42:43 -0700 (PDT) Subject: [Commons-Law] Post grant oppostion against Pegays filed Message-ID: <62923.53322.qm@web37711.mail.mud.yahoo.com> Dear Friends, Today, the Sankalp Rehabilitation Trust, an organisation that provides treatment and rehabilitation support for injecting drug users, filed a post-grant opposition against Roche’s patent for the hepatitis-C drug peg-interferon á2a, marketed by Roche as Pegasys. The patent for Pegasys was the first product patent granted in India under the new TRIPS-mandated product patent regime, and is only available from Roche at the price of Rs 2.25 lakh (US$ 5,625) for a 6-month course. In the hope that an absence of patent protection will spur generic competition to bring down the price of this much-needed drug, Sankalp decided to file an opposition against Pegasys. Hepatitis-C represents a huge public health problem in India. An estimated 12.5 million people in India are infected with the hepatitis-C virus (HCV). Left untreated, hepatitis-C can lead to liver cirrhosis, liver cancer or liver failure. Hepatitis-C is especially pernicious for those co-infected with HIV, as several studies have shown that HIV-HCV co-infection leads to increased rates of disease progression. Injecting drug users are especially vulnerable to HIV-HCV co-infection. For instance, a study in the Northeastern state of Manipur reported HIV-HCV co-infection rates as high as 93% among injecting drug users. However, due in part to its high cost, hepatitis-C treatment is not available in government hospitals. Indeed, we have been told that treatment programmes are not even bothering to screen for HCV due to the unavailability of treatment. Roche’s patent for Pegasys involves combining interferon – a naturally occurring protein with antiviral effects that has been known for years – with a structure called polyethelyene glycol (PEG), an inert substance that helps to prevent the interferon from being broken down by the body, thus allowing it to remain in the bloodstream longer. This technology of combining interferon and other biologically active proteins with PEG had also been known for years prior to this patent. In fact, the technology embodied in Roche’s patent is essentially identical to that disclosed in an academic paper that was published a year prior to the filing of Roche’s patent application. The opposition to the patent for Pegasys was based on these grounds. Patent protection is only granted to inventions that are new and involve an inventive step. Sankalp has argued in its opposition that the patent was wrongly granted, because given the state of the existing knowledge at the time of the grant of patent, the “invention” that Roche was claiming was neither new nor inventive. Rather, Sankalp has argued, the patent is an attempt to obtain a monopoly over technology that existed in the public domain. Sankalp has also invoked some legal provisions that are unique to Indian patent law, including the assertion that Roche’s alleged “invention” is at most a “mere admixture” of known substances and unpatentable under section 3(e) of the Patents Act, and that it is just a “new form of a known substance” and not patentable under section 3(d) of the Act. A copy of the opposition can be found at our website: www.lawyerscollective.org Feel free to contact us with any questions. In Solidarity, Lawyers Collective HIV/AIDS Unit --------------------------------- Got a little couch potato? Check out fun summer activities for kids. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070518/c0081705/attachment.html From tato at paris.com Fri May 18 17:50:40 2007 From: tato at paris.com (Dhritabrata BHATTACHARJYA Tato) Date: Fri, 18 May 2007 07:20:40 -0500 Subject: [Commons-Law] Post grant oppostion against Pegays filed Message-ID: <20070518122040.7D6A31CE303@ws1-6.us4.outblaze.com> I am looking for a lawyer who deals with intellectual properties more precisely in publishing industry. I will be grateful if any of you can provide me with the contact of any such lawyer in Delhi. Tato -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070518/f7730136/attachment.html From the.solipsist at gmail.com Wed May 23 17:25:29 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Wed, 23 May 2007 17:25:29 +0530 Subject: [Commons-Law] Google to scan manuscripts and books from University of Mysore Message-ID: <4785f1e20705230455o7aad4b1ci1758c81c530b6314@mail.gmail.com> Dear All, The University of Mysore has entered into a tie-up with Google in which the latter will digitise much ancient text for free. An interesting quote from the original report (in the Hindustan Times ): '"Depending upon the exclusivity of the materials, we will patent thembefore making them available on public domain," he [J Shashidhara Prasad, Vice Chancellor of Mysore University] said' [emphasis added]. Does anyone have any clue as to what he could mean? This doesn't even seem like a (normal enough) mistake of "patent" for "copyright", because he's talking of making them "available on the public domain". Any comments? from Ars Technica Google to scan 800,000 manuscripts, books from Indian university By Nate Anderson | Published: May 22, 2007 - 11:37AM CT Need to dig up some information from a centuries-old text on ayurvedic medicine? Soon you'll be able to do so from the comfort of your living room. Google has agreed to index and digitize 800,000 texts stored at the University of Mysore in India as part of its attempt to broaden the Google Book Search program, according to the Indo-Asian News Service. "Written in both papers and palm leaves, there are around 100,000 manuscripts in our library, some dating back to the eighth century," said the vice chancellor of [the University of] Mysore. "The effort is to restore and preserve this cultural heritage for effective dissemination of knowledge." He also added, cryptically, that the University plans to "patent them before making them available on public domain." Google has been aggressively expanding its Book Search programto include non-English library materials. It recently announced a deal with the University of Lausanne to scan a large collection of French-language works, and the new partnership with [the University of] Mysore will digitize works in Sanskrit and Kannada. These schools lack the fear of Google displayed by the French government, which has so far introduced projects like Gallica and Quaeroto challenge the search giant without any apparent success. India has become increasingly important to Google in the last few years. The company opened a billion-dollar data centerin Andhra Pradesh, and it recently announced the availability of Google News in Hindi. But how will the might of Google's technology fare when confronted with handwritten Sanskrit? How steady is your hand? Making an archive like this useful to scholars will involve using optical character recognition to translate the handwritten texts into searchable characters—and it's a tough task. Our own Jon Stokes has done extensive research in this area and says, "The hard part about doing a project like this lies not so much in the actual digitization of the page images, but in doing OCR on a handwritten script. OCR can work quite well on handwritten manuscript pages, if the handwriting is regular enough. Researchers doing this stuff with Greek manuscripts have gotten some good results, but again only on regular hands." Google has developed open-source tools like OCRopusto address these problems. The new project is built on Tesseract , the company's open-source OCR engine, and it adds a handwriting recognizer and "novel high-performance layout analysis methods." The research is clearly of more than academic interest to Google. As it expands its digitization efforts, OCR is the only feasible way to convert handwriting into text on such a massive scale. But the problems go beyond the actual character recognition—storage and markup of the data is also a problem. The Text Encoding Initiative (TEI) was founded in 1987 with the aim of providing SGML-compliant, machine-readable texts for humanities scholars and social scientists. The organization's "P3" text encoding guidelines have been in use since 1994 in a range of digital library and manuscript encoding projects, but marking up documents into a TEI-compliant format is a challenge. If Google is using the OCRopus project to do the handwriting recognition, then the engine is probably going to generate text encoded in the HTML format. "HTML is fine if you're making the texts directly available online," Jon says, "but the Holy Grail is really to do automated capture of handwritten texts into some TEI-compliant flavor of SGML. Once the text is marked up with TEI tags, you can output to HTML or any other format from that. You can also let scholars come behind the OCR engine and do things to make the marked-up version more useful, like tagging proper names, changes in hand or ink color, supralinear and marginal corrections, and so on." Until that Holy Grail is found, hand-coding of handwriting remains the only solution. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070523/4aca8724/attachment.html From twistedlogix at gmail.com Wed May 23 19:55:24 2007 From: twistedlogix at gmail.com (Ravishekhar S) Date: Wed, 23 May 2007 19:55:24 +0530 Subject: [Commons-Law] Google to scan manuscripts and books from University of Mysore In-Reply-To: <4785f1e20705230455o7aad4b1ci1758c81c530b6314@mail.gmail.com> References: <4785f1e20705230455o7aad4b1ci1758c81c530b6314@mail.gmail.com> Message-ID: > Does anyone have any clue as to what he could mean? This doesn't even seem > like a (normal enough) mistake of "patent" for "copyright", because he's talking > of making them "available on the public domain". Any comments? Probably, he's been misquoted or it is a slip of tongue because Prof. Prasad, addressing our college on our annual day referred to this tieup with Google and said Google is talking to the University about putting its works that are in public domain, online. Also, he was pretty receptive, when the University was petitioned ( http://mygrapa.googlepages.com/pet-en-nvol.pdf ) to allow digitising(a la Project Gutenberg not Google's Library Program) to salvage many titles including both public domain and copyrighted (some are unfortunately out of print) titles and sought them to permit volunteers to transcribe and put them online and license in a licence like Attribution-NonCommercial-NoDerivs 2.5 India ( http://creativecommons.org/licenses/by-nc-nd/2.5/in/ ) which would enable us to share the books online while keeping the right to sale, exclusively with University of Mysore. University of Mysore, thanks to its royal patrons and great institutions of knowledge, has some rarest books in its collection. Kautilya's Arthashashtra was discovered in Oriental Research Library(now Oriental Research Insitute) by R. Shamasastri. Google has got the technology (also GPLed the OCR software that it improvised) and Google India is supposedly investing on OCRs for Indian languages, which I hope will be GPLed as well. Regards, Ravi Shekhar S From prabhuram at gmail.com Mon May 28 13:48:23 2007 From: prabhuram at gmail.com (Prabhu Ram) Date: Mon, 28 May 2007 13:48:23 +0530 Subject: [Commons-Law] Market exclusivity beyond patents for drugs? Message-ID: <68752c9f0705280118q48f045b3s8cfa21c5b4fcf3cd@mail.gmail.com> > Economic Times Market exclusivity beyond patents for drugs? KG NARENDRANATH TIMES NEWS NETWORK[ MONDAY, MAY 28, 2007 03:37:31 AM] Three governments from the emerging world namely Thailand, Brazil and Malaysia have, although in varying degrees, shown aggression in recent months in the seizure of pharmaceutical patents, causing their supporters in the world to expect a cascade of governments to follow suit, and considerable anxiety among the enthusiasts of intellectual property rights (IPRs). That contrary to what some quarters expected the World Health Organisation's annual assembly last week did not formally endorse Thailand's action came as big relief to the world's biggest drug companies—Big Pharma—which apprehend if such actions go scot-free and the trend is buttressed, then, to their detriment, violation of multilaterally-ratified IPR laws would eventually become a global norm. Already, the Big Pharma is slightly week on their knees, having been deprived of the consistent and easy support they used to get from the US government, which is seen to be embracing the politically popular policy of lending a big hand to the generics industry. This week, the Indian government is likely to take a call on a related issue—"data protection", an obligation on governments under an allegedly ambiguous provision of the Trade-Related Intellectual property Rights (TRIPS) agreement. A committee at the senior bureaucrats' level has been sitting on the vexing issue since February 2004, only to realise that it can hardly reach a consensus. Fresh efforts are now being made for a patch-up as the official at the chair—Satwant Reddy, secretary, department of chemicals—is keen to get the work done, before she demits office on Thursday. What does data protection (also referred to as data exclusivity) stand for? Article 39.3 of the WTO's TRIPS agreement requires the member countries of the world body to ensure that "undisclosed test or other data" concerning products using new chemical entities (NCEs), which the pioneer applicant has to submit to the regulator for marketing approval, is not subjected to unfair commercial use by a third party. The provision itself is rather vaguely expressed, giving its potential beneficiaries and those who oppose it room to variously interpret it. It may be right to say that what the data protection provision seeks to achieve is avoid frustration of an otherwise deserving IPR through leakage and resultant unfair use of the relevant data by a third party. In that sense, it will at the best facilitate or even reinforce a good patent but won't extend its tenure. And nobody quiet opposes such a legal instrument to ensure deserving patents. The problem, however, is that almost all developed countries and even China and Korea went beyond what the TRIPS agreement mandated, to give a "period of data protection" (which is nothing but market exclusivity) to the pioneer applicant, which, considering the way patent systems work, would sometimes lead to extension of patent tenure beyond the stipulated 20 years. For instance, the US gives five-year data protection, the EU 10 years, Canada eight years and China six years. So, a precedent has been created. For the last few years, New Delhi has been under intense pressure by Big Pharma and their political patrons in the West to provide for in its laws something similar. Generally speaking, the Indian drug industry, including most of the big companies, whose present capability lies in the development and manufacture of cheaper generics than core innovation, has been strongly countering this pressure. So, what is important is what the government thinks. The 15-member committee headed by Ms Reddy was itself the result of seemingly irresolvable inter-ministerial differences. The PMO was behind its formation. Once it was clear it's split down the middle, a group of three secretaries—scientific and industrial research department secretary RA Mashelkar, commerce secretary GK Pillai and Ms Reddy—went into a huddle in November 2006. This group, according to sources, concluded that India could, toeing the line of the West, give the pioneer applicant in pharmaceutical and agrochemical sectors not only protection of data from unfair commercial use but also a period of protection, which according to some analysts, mean "not only protection of data but also protection from competition". This three-member group has, however, not been able to take others in the panel on board so far and hence the deadlock. The panel, which has had extensive consultations with all stakeholders, has almost agreed on giving five-years' "market exclusivity" for NCE products in the agrochemical sector and also for new products in the herbal segment. However, most members of the committee, including the representatives from the health and industry departments and independent experts, are strongly opposed to giving such market exclusivity in pharmaceuticals which is a "sensitive sector". What is so harmful about the period of protection or market exclusivity? Usually, after a patent is granted for an NCE, it takes eight-nine years on an average for various developmental studies, including testing the substance in animals, and another three years or so for trying it in humans. Even if the drug hits the US, the EU or Canadian market in the 11th or 12th year of the grant of patent, its introduction in Indian or Malaysian or Chinese market could well take another five-six years. This is because the test and other data will have to be submitted to the regulators in these countries who will independently take a call on them, according to their rules, even as they largely rely on approval of the primary data by the regulators in the West. The Indian regulator would ask for a repeat of some of the tests, including last phase of trials in humans. So, in practice, even if the inventor has got the patents simultaneously in the US and in India, the drug would normally hit the US market in the 11th year after patent grant while it could reach Indian market only in the 17th year. A five-year market exclusivity since such market launch—which means that the information on the product would not be available to a generic drug-maker for even researching on it during the period—effectively leads to an extension of the patent to the 22nd year, if not beyond that. Can India deny such market exclusivity? It can if it has the political will. "Mentioning a period of protection is not TRIPS-mandated. If we allow that for even agrochemicals, that could move us to a slippery slope," says an independent expert in the Reddy committee. Although most countries in the West have allowed market exclusivity, New Delhi won't be without company if denies it. Brazil and South Africa have not conceded any period of protection. Says an industry official: "India could consider protection coterminous with the expiry of patent or first disclosure of data in any WTO member country." The independent expert says remedy against leakage of the data without any reference to period of protection would do. For this, the Drugs & Cosmetic Rules could be amended, because the Right to Information Act could supersede the Official Secrets Act, which would have otherwise been enough. The industry official emphasised that as TRIPS requires giving data protection to only NCE products, the Indian law should clearly restrict it to such products. He has a point given the drying down of the global NCE pipeline, the fortunes of the global pharma industry seems to be predominantly generics-driven, at least in the medium term, and Indian industry has a clear advantage in capturing more of this rapidly growing market. The industry should not be incapacitated by the urge to play to the galleries, when there isn't actually a multilateral obligation to give market exclusivity of the sort given by the countries in West.A government official familiar with the committee's current thinking said: "Pharmaceuticals could be given differential treatment as the sector is sensitive due to public health issues involved." But would it be defensible to give five-years' data protection for agrochemicals and at the same time deny that to pharmaceuticals? (c)Bennett, Coleman and Co., Ltd. All rights reserved. From hbs.law at gmail.com Tue May 29 11:42:38 2007 From: hbs.law at gmail.com (Hasit seth) Date: Tue, 29 May 2007 11:42:38 +0530 Subject: [Commons-Law] Medical Research Message-ID: <8b60429e0705282312u7e0b255t1cf86970b9baf26@mail.gmail.com> An entry in British Medical Journal Blog promted some thoughts...(blog entry and link are below). Medical research is not easy and it is only a small part of overall healthcare cost. Activists in India are focussed on anti-drug patent debate while healthcare remains as it is. No activist talks about investments required to build a good healthcare that will at least match Cuba's healthcare. Only thing you hear is the sad lament that India spends less amount of GDP on healthcare than other countries. How does the GDP pie increase? By agitations? And drug patent research is considered manna from heaven which the developed countries will create and developing countries will take it for free. Developing countries can forget that west is going to give away its advantages just because we have a moral right to get alms by virtue of being poor. Utopia, here I come. Even when majority of drugs are generic off-patent drugs, the health care system is pathetic. Ayurveda trained doctors man primary healthcare centers (PHC) with they being India's foot doctors. Ayurveda and Homeopathy doctors agitate that they be allowed to prescribe Allopathic medicine of which they have no training!! I met a patient at my family doctor's clinic, a young boy of 14-15 years age. His father was in tears about his experience at the government civil hospital who took a day to attend to his skull crack to give it stiches. He refused to go there again. Nobody says much about the inbuilt distortions in the system such as donations in private medical colleges, most doctors having to run hospitals as business, virtually non-existent domestic research in medical instrumentation (anybody invented a MRI here?). The anti-drug patent debate is sexier, since that gets activists foundation grants from the west, that aligns with their general leftist tendencies of being anti-big company, anti-west and anti-government. That a government hospital should work and should have resources is such an unglamorous topic. I think the only attention a government hospital got in recent time was the case of monkeys taking over a ward of hospital in Delhi. I am sure there are many organizations and activists doing good silent work with respect to government hospitals and healthcare overall. I know of one myself. But that shows that mainstream debate is hogged by the fancier version of anti-MNC, anti-patent debate, not the unglamorous work of fixing the pathetic health infrastructure in the country. Not suprisingly, the activist debate about anti-patent becomes a government policy or influences one since that is the one hogging the limelight. Big-pharma is bad. What is big-pharma anyway? A company that spends on salaries of researchers, produces stringent research, takes up where NIH research stops and creates something useful, takes risks of many drugs failing to reach market, makes profits out of which 30 per cent or more is taxed so it is back to public and in India further that its products are price controlled by NPPA for many drugs. Big-pharma is not the only pancea for research, the same can be done in any format, a cooperative society, a non-profit lab, a government lab. In India, the great government labs have produced not a single noticeable achivement in medical research. If society's goal is, and not many will disagree, to create new and better medicines, the format really should not matter. To manage a profit making entity, a company, is hardly a problem for government. Government can regulate them with licences, taxes, levies, tax-breaks, royalties or any number of tools. If research in Big-Pharma is destroyed, some other format is going to have same big size, with almost similar priorities of managing risk of failed drugs and useful drugs within a given budget and instead of profits some government policy will dictate which illness is worth curing. Even if, and may be it should be, all this is done, healthcare in India is not going to improve. We are talking of paracetamol being available in a village health center. ---------------------------------------------------------------------- The BMJ Blog entry is here: http://blogs.bmj.com/2007/05/28/nejm-24-may-2007-vol-356/ NEJM 24 May 2007 Vol 356Monday, May 28th, 2007 Filed under: Comment , Richard Lehman's weekly review of medical journals— rlehman @ 11:02 pm The trouble with medical research is that it involves so much boring hard work. First carry out 2,446,431 person-years of follow-up involving questionnaires on aspirin use every two years. Having picked up 636 incident colorectal cancers, get all the paraffin-embedded histology specimens of these cancers and test them for the expression of cyclo-oxygenase-2 activity. Then analyse the data to determine the preventive effect of aspirin on colon cancers with and without COX-2 expression. You write up and rewrite the thing for the New England Journal and, hey, with luck you may be able to move yourself and your family to another ill-paid but more prestigious job in a distant university. Thank God there are people willing to do it. Now we know that the protective effect of aspirin against colon cancer is indeed specific for the kinds that over-express COX-2 activity. By the time we turn 45, Evolution has largely lost interest in us, despite all the arguments about survival advantage from the extended family, altruism, and so forth. The human urinary tract is a good example. The Universe cares little whether older women leak when they cough, or older men get big prostates. Burch cared more, and invented colposuspension for women with stress incontinence. Then someone invented the fascial sling procedure, which involves creating a sling from the rectus abdominis fascia and slotting it under the urethra. This results in less stress incontinence but more voiding difficulty and urinary infections, according to this study. The editorial also mentions "blind" mesh insertion, now popular with British gynaecologists, only to dismiss it with a certain disdain. In fifteen Canadian cities, paramedics were trained to perform intubation and to give intravenous drugs, in the hope that this might reduce deaths from out-of-hospital respiratory distress. In fact they performed very few intubations, gave a fair amount of intravenous furosemide, and used nebulised medication on more than half the patients, so reducing the death rate from 14.3% to 12.4%. Not long after antiseptic surgery had made it possible to open the abdomen without killing the patient, the Prussian-born surgeon Christian Billroth devised a series of astonishing procedures on the stomach which still remain in the modern surgical repertoire. I was put in mind of these looking at the illustrations in this review of bariatric surgeryfor morbid obesity. They are really quite ingenious, and in practice it must be quite a challenge even to get the laparoscope through the abdominal wall of someone with a BMI of 55. The procedures all work, but at the cost of considerable malabsorption and unknown long-term sequelae. After operating, the surgeon can relax like Billroth, going off to play chamber music with Brahms and Joachim. ----------------------------------------------------- -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070529/8fcb7b33/attachment.html