Richhpal Singh Meena v. Ghasi: Past Eclipse of India’s Substantive Criminal Law in Contemporary Operation

The Indian Supreme Court’s verdict in Richhpal Singh Meena v. Ghasi is a marked peripeteia in the legal position on the applicability of offences under the two sub-chapters of Chapter XVI of the IPC in the heads of sections dealing with ‘Offences Affecting Life’ and ‘Hurt’. In essence, this ruling declared that scenarios that end with death of the victim will mandatorily have to be only covered by the sub-chapter ‘Offences Affecting Life’, making ‘actus reus of fatal results’ the determinant for choosing the offence for which the accused is to be convicted. After providing a factual frame of reference, this paper recapitulates the key elements of the Court’s reasoning in arriving at this principle. The main thrust of the paper lies in its analysis of the Court’s faulty neologisms and legally inconsistent alterations in the yardsticks that govern which cases fall under either of the two heads. This paper argues that the Court’s ratio decidendi and the principles it has evolved represent nothing short of insouciance towards decades of clarificatory precedent and that they are ex facie since Richhpal’s ruling engenders injustice in situations where the intention is to only cause hurt, but death results regardless of the intention transpired. As a judgment made in 2014, this ruling continues to breed iniquitous convictions even to this day. It is this examination of the judgment’s myopia for the past and its eclipse on the present delivery of justice that represents the central thesis of this paper.

Internet Access as an Independent Human Right: a Palpable Consequence of the Covid-19 Pandemic?

The onslaught of the COVID-19 pandemic has established a new world order which is heavily reliant upon the internet for public access to health, education, employment, and recreation among other services. Furthermore, the growing dependence on technology has also been crucial in the battle against the pandemic. However, despite the irreplaceable utility of the technology, state practices have remained divergent in this field. While a multitude of nations have recognized internet access as a fundamental right, many nations imposed unjustified restrictions on their citizens during the pandemic and some even failed to provide affordable access to internet facilities, which has proven to be detrimental to the realisation of basic individual rights. As the world makes a transition from a pandemic, the intensifying reliance upon the internet has given rise to a need to recognise access to the internet as an independent human right. In light of the above, the present paper seeks to elucidate how access to the internet has emerged as a necessity in the backdrop of a pandemic and examine how the differing state responses in this context have been violating individual rights. The paper also delves into how internet access is being dealt with under the existing international and domestic regime. Further, the authors attempt to philosophically justify a human right to internet access and politically conceptualise the same, and argue in favour of recognition of internet access as an independent human right under international law.

Lessons from the Pandemic: Technology and Protection for Human Rights in the New Normal Era

With millions of people diagnosed with Coronavirus disease (“COVID-19”) till date, state governments have turned to using technologies such as contact tracing systems, high-tech camera sensors, or even information surveillance to control the spread of the pandemic. Despite the numerous advantages these technologies have produced, for example, swiftly flattening the infection curve and enforcing health protocols, the implications of maintaining such use of technologies in upholding fundamental human rights going into the post-pandemic ‘new normal’ era is not clear. Experts have debated the compliance of technologies to respect one’s right to privacy and right to freedom of expression when achieving their protective purposes to uphold societies’ right to the enjoyment of health during the pandemic. However, knowing the continuous improvement of technology, and mindful of the absence of the absolute certainty of its usage in the new normal era, whether it relates to the mechanism or the temporal length of its employment, this paper will further delve into such debate in the context of a pandemic-free environment. After considering the different forms and usages of technologies during the pandemic, analyzing the advantages of using technologies in the future, and critically assessing such usages from the perspective of international human rights law (“IHRL”), this paper claims that the technologies which are used during the pandemic must be properly maintained coming into the new normal era. However, several parameters; mainly the functionality of the technology, participation from the general public, and the formation of an appropriate legal framework, will have to become the main focus of governments to ensure the compliance of technologies with IHRL standards.

COVID-19 Contact Tracing Apps and Technologies as a tool of Mass Surveillance: A Cure Deadlier than the Disease

“Desperate times call for desperate measures” – COVID-19 contact tracing apps and technology have been operating in the desperate times created by the COVID-19 global pandemic. But the impact of these apps and technology on society is contentious, as the benefit gained from such is said to be largely outweighed by the negative impact it can have during and after the pandemic. Surveillance measures have always been a tricky business. Labeled as the ‘magical solution’ for most horrid problems of our time such as terrorism, crime prevention, it has always failed to live up to its name and has proved to be one of the prominent tools for the authoritarian regimes to oppress people and commit gross human rights violations. Over-reliance on COVID-19 apps and considering them a ‘magical solution’ to containing the spread of Coronavirus can have irreversible consequences. Instead, the pandemic and desperate situation posed by it may have provided the regimes around the world an opportunity to introduce new surveillance infrastructures or strengthen the existing ones, which would have taken years and lots of friction from courts, activists, and civil society, to achieve. The article assesses the legality of COVID-19 contact tracing apps and technology and tries to draw a picture of the society that faces the consequences of surveillance and data collected through such apps and technology and looks at how legal mechanisms can cope with such consequences.

Reforms Reaffirmed to Improve International Surveillance and Response Mechanism in WHO in the Post-Coronavirus Situation

The emergence of COVID–19 has shown that the inability of WHO to have prompt disease surveillance could be callous to recognize and respond to the situation of Public Health Emergency of International Concern (PHEIC). While the paper traces out the timeline of WHO to perform its mandate in combating the spread of infectious diseases, coincidently it also explains the needs to improve the epidemic intelligence on the basis of coordinated international and national surveillance and response mechanisms. On the note, the post COVID – 19 situation requires WHO member states to strengthen the institution within the international order of global health governance. The only way to do so will be through effective and prompt global disease surveillance and response systems. Further, the article attempts to shed light on the current and previous reaction of WHO over the infectious diseases including COVID – 19. In the process, this article tries to suggest reforms within the IHR and WHO’s applicable effort to develop effective disease surveillance and prompt response systems.

Dynamics of Trademark Dilution: Issues and Challenges in India and USA

Trademarks of an establishment cannot solely be associated with identification of origin or source. It performs an imperative task of building brand name and value. The dilution theory rejects the opinion that the role of a trademark is solely based on the recognition of the root or source of its origin and that it is not only a figurative representation but carries a creative aspect as well. For the most recent decade, the greatest inquiry in trademark law has been the manner by which to demonstrate weakening or dilution. Dilution has turned out to be a dauntingly slippery idea. The principal issue with dilution law is that it gives a cure without a supportable hypothesis of the harm or damage. Even though lately the concept has been recognized in International as well as domestic jurisdiction putting an immense responsibility on domestic jurisdiction to protect trademarks against dilution, very little has been discussed or clarified regarding the theory of dilution. Ambiguity of such nature facilitated this research trying to spot some light on the theory of dilution comparing it from divergent angles in different jurisdictions. The paper also highlights the interpretation mechanism of the courts of the dilution provision and explains the concept further with reference to important cases under the U.S. laws and European judgments in the context of the Dilution laws and draws a comparative analysis of the effectiveness of the legal framework present in India with that of the USA.

The Position of Consideration in Nepal: A Study of Theories, Cases, and Laws

Lawful consideration is one of the essential elements of a valid contract. However, The National Civil Code, 2017 A.D. (2074 B.S.) has not included a definition of consideration, and it has not stated the necessity of consideration in Nepal in a particular section. Nevertheless, it seems that the Code has realized the importance of lawful consideration in the provisions of contracts of rent, wage and hire purchase. The Code has also stated unjust enrichment, under which one party should not enrich himself or herself at the cost of others or other’s property. Conversely, the now-repealed Contract Act, 2000, in its section 2(d), had defined consideration and stated that consideration must be lawful in section 13(k). In the cases decided by the Supreme Court of Nepal (Bhagwan Lal Shah v. Harka Lal Giri and Chitra Bahadur Karki; Proprietor of Manakamana Construction and Concerns Pvt. Ltd v. Maniram Aggrawal, Proprietor of Aggrawal Industries Pvt. Ltd.), the Supreme Court has issued the precedent stating the importance of consideration in Nepal in regard to Contract Act, 2000 which has now been repealed and replaced by The National Civil Code 2017. Additionally, different theories of the contract like bargain theory, realistic interpretation, theory of reciprocity, ‘nundum pactum’ theory and ‘no consideration no contract’ theory also emphasize the importance of consideration in Contract. Finally, this research paper has proven that consideration is essential in Nepal, thereby stating the theories of consideration, the legislative provisions, and the cases. Furthermore, the researcher came to the conclusion that the lawful consideration is essential in Nepal and it should be dealt with like oxygen to humans and whether written or not, must be implicitly understood. The word ‘consideration’ not explicitly being mentioned in law should not create confusion that a contract can happen without lawful consideration.

Contact Tracing Apps in ASEAN: A Threat to Privacy and Personal Data

On March 11 2020, the World Health Organization (WHO) officially categorized the Coronavirus disease (COVID-19) as a global pandemic. The rapid spread of COVID-19 prompted governments all around the world to take steps toward controlling the pandemic and its significant socio-economic impacts. Digital technology has been relied upon to provide innovative solutions to aid efforts of stopping the spread of COVID-19. One such innovation is the development and implementation of contact tracing applications or apps. The use of these apps allows public health authorities to track confirmed cases of COVID-19 and mitigate its transmission. However, as useful as they may be, there exists a well-grounded fear that contact tracing apps may be used as a tool to broaden government surveillance powers. This is especially true among member nations of the Association of Southeast Asian Nations (ASEAN), where domestic regulations guaranteeing the right to privacy and protection of personal data are relatively weak. Additionally, ASEAN lacks a comprehensive and strong regional mechanism for the protection of human rights and personal data. This paper aims to analyze the implementation of contact tracing apps in ASEAN member states, whether its implementation fulfills the international standards of the protection of the right to privacy and personal data, as well as provide recommendations to ensure that countries do not spiral towards a state of unrestricted government surveillance.

Assessing the Legal Personality of Sexbots in the Light of Human Rights

Sexbots have been the subject of much prurient curiosity for all of the adult population. The scepticism about the extent of human interaction in the future has created ambiguity about the prospects of the flesh trade industry all over the world. The evolution of sexbots from animatronic models to sentient beings capable of decisionmaking ability would pose a fundamental question about their impact on human rights and the obstacles it would create for the people employed in this sector. The ethico-legal constraints about their replacements as sex workers for utilitarian purposes evaluate the boundaries of acceptable sexual practices. With the advent of artificial intelligence in robotics, these customizable simulacra capable of human affection explore the pragmatic question of their legal personality. This paper analyzes the intersectionality of artificial intelligence and robotics in the light of ethical limits and legal implications on human rights. It imposes a duty on humans to address the permissible limits of customizability and the sufficiency of the existing legal framework to minimize the sufferings of these sentient beings. The complexities involved in the controversial facet of human-robot relationship entail us to gauge upon the jurisprudential aspects of the rights and legal personality of these robots.

Impact of COVID-19 on Healthcare in Humanitarian Settings

Right to health is a human right available to everyone at all times. However, healthcare under International Humanitarian Law (IHL) is contingent on there being an ‘armed conflict.’ With the world healthcare institutions crumbling with COVID-19 and the worsening humanitarian crisis in many countries, the achievement of universal healthcare stands threatened to its core. In the absence of enough literature, this article attempts to bring out the challenges in the protection of health in complicated humanitarian settings, especially in light of the ongoing pandemic. It also seeks to emphasize that despite the existence of IHL through treaties and Customary International Law, there exists an inability to protect the healthcare professionals in areas of conflict. Further, it also attempts to delve deep into the challenges of access to and protection of public healthcare to the most vulnerable groups in humanitarian settings such as women, children, and refugees. The article concludes by stressing the need to pursue global solidarity to battle the pandemic through building trust and implementing approaches suitable to the needs of all the stakeholders in the humanitarian settings ranging from the perpetrator states, Non-State Armed Groups (NSAGs), civilians, military personnel, to the healthcare professionals involved in administering humanitarian aid.