National
Madhya Pradesh HC: No Liability for Unnatural Sex with Wife
-Benson Binoy
The Madhya Pradesh High Court, in a recent ruling, referencing the specific exclusion of marital sexual relations from Section 375 (which defines the offence of rape) of the Indian Penal Code, 1860 (‘IPC’) ruled that a husband cannot be held liable under Section 377 of the IPC for non-consensual ‘unnatural’ sexual relations with his wife. Going by the definition of ‘rape’ under Section 375, it was held that an offence of unnatural sex could not be established in relation to sexual acts between spouses due to the current position of law not holding consent as necessary for sexual acts between spouses.
An FIR had been filed by the wife of a sitting member of the Madhya Pradesh legislative assembly alleging rape and unnatural offences under Section 377 of the IPC. This FIR, was quashed by Justice Sanjay Dwivedi in the ruling. Further, the Court concluded that the husband’s actions did not constitute an offence punishable under Sections 376(2)(n) (offence of rape) and Section 377 (offence of committing carnal intercourse against the order of nature) of the IPC.
The Court further noted that activities between a husband and wife that go beyond what is traditionally considered natural sexual intercourse cannot be definitively classified as ‘unnatural’ sexual intercourse.
The High Court emphasized that a fulfilling marital life relies on a healthy sexual relationship between the husband and wife, which should not be limited solely to procreation, and further remarked that seeing procreation as the sole purpose of sexual relations between spouses would diminish the significance of the marital unions where a couple is unable to conceive.
Suggested Readings:
- Read the Order here.
- Irene H. Frieze, Investigating the Causes and Consequences of Marital Rape, 8 The University of Chicago Press, 532 (1983).
- Harsh Sethi, Marital Rape : Redifining Societal Norms And Consent Boundaries In Marriage, The Criminal Law Blog (Sept. 8, 2021).
- Srushti S. Kekre and Udisha Surana, Marital Rape through the lens of Judicial Activism in India, The Criminal Law Blog (July 20, 2022).
- Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation Of Marital Rape In India: Understanding Its Constitutional, Cultural And Legal Impact, 11 NUJS L. Rev. 1 (2018).
- Deborah Kim, Marital Rape Immunity in India: Historical Anomaly or Cultural Defence?, 69 Crime, Law and Social Change 91 (2018).
- Manya Oberoi, Section 377: The Essence of Freedom, Oxford Human Rights Hub (Aug. 27, 2018)
Data Scraping – OpenAI, Microsoft, Trilegal…
-Joshua Joseph Jose
In the context of data scraping and its legal intricacies, the Digital Protection and Data Privacy Act, 2023 (‘DPDP Act’) does not admonish the scrapping of Indian data that is publicly available. However, if personal data is published without the consent of the ‘data principal’ and that data is scraped by ‘data fiduciaries’ like OpenAI, this act of scraping would be a contravention of the DPDP Act. In light of the above circumstance, Mr. Nikhil Narendran, Trilegal Partner, on 26th September 2023, deliberated on how organisations could comply with the new privacy regime in India. He remarked that it would be extremely difficult for data fiduciaries who scrape large volumes of data to adapt to the new regime. This difficulty is consequent to programs such as AI algorithms designed to scrape data, having to verify whether the data source they scrap is tainted. Further, he remarked that even if these algorithms used filters that are very effective against IP infringement, they ‘are not very effective when it comes to personal information’, as it is often hard to determine what data is personal and where it originated. Oddly enough, a solution on how these AI algorithms could possibly comply with the provisions of the DPDP Act was not elaborated upon by Mr. Narendran, as he primarily emphasised on how such a compliance would be tedious.
Concerning the above situation, in the United States of America, in early September 2023, Cointelegraph reported that Microsoft and OpenAI had been named defendants in a class action lawsuit. The introduction of the lawsuit stated that the complaint arose ‘from the Defendants’ unlawful and harmful conduct in developing, marketing, and operating their AI products, including ChatGPT-3.5, ChatGPT-4.0, 4 Dall-E, and Vall-E (the ‘Products’), which use stolen private information, including personally identifiable information, from hundreds of millions of internet users, including children of all ages, without their informed consent or knowledge’.
Suggested Readings:
- Read the Class Action Complaint here.
- Tristan Greene, OpenAI and Microsoft accused of stealing data to train ChatGPT in new class-action suit, Coin Telegraph (Sept. 6, 2023),
- PrivacyCast, S3E12 | Dating & DPDPA: Asking for a Friend | Akarsh Singh & Nikhil Narendran | #privacycast, 26th September 2023, available at https://www.youtube.com/watch?v=WDmhsEnj0I8 (last visited Oct. 1, 2023).
- Dr. Felicity Bell et al., In-House Counsel, the Adoption of Artificial Intelligence, and Legal Ethics, 17(2) IJLT 1 (2021).
- Stephen Mathias, India Passes Digital Personal Data Protection Act, Hunton Privacy Blog (Aug. 22, 2023).
- Anne Dulka, The Use of Artificial Intelligence in International Human Rights Law, 26 Stan. Tech. L. Rev. 316 (2023).
- Geoffrey Xiao, Data Misappropriation: A Trade Secret Cause Of Action For Data Scraping And A New Paradigm For Database Protection, 24 Colum. Sci. & Tech. L. Rev. 125 (2022).
President Gives Assent to the Women’s Reservation Bill
-J K Mukhil Malar
On 29th September, 2023, the President gave assent to the Women’s Reservation Bill, 2023 which seeks to provide 33% reservation to women in Lok Sabha and State Assembly seats.
This 106th Constitutional Amendment Act was introduced in the Lok Sabha on 19th September, 2023, by Union Law Minister Arjun Ram Meghwal and was passed by the Rajya Sabha on 21st September 2023. Prime Minister Narendra Modi had described the law as ‘Nari Shakti Vandan Adhiniyam’. It was passed by the Lok Sabha with near-unanimity, with only two members opposing it, and was unanimously passed by the Rajya Sabha.
33% of seats reserved for Scheduled Tribes and Scheduled Caste (SCSTs) would be reserved for women from those groups. The Opposition has demanded that the benefit be extended to Other Backward Classes (OBC), which is not provided for in the Act. The reservation for women will be implemented after the next census and the subsequent delimitation exercise will determine the seats that are to be reserved for women. Moreover, the reservation would cease to exist 15 years after the commencement of this Amendment Act.
The Bill has a long history of twists and turns. It was first introduced in 1996 and was passed by the Rajya Sabha in 2010. However, the Congress-led UPA did not bring the Bill to the Lok Sabha because of the lack of consensus. The Act is a significant milestone in Indian politics after a long and tumultuous legislative journey spanning three decades.
Suggested Readings:
- Read the Amendment Act here.
- Krithiha V. and Sushovan Patnaik, The women’s reservation bill has a long history of arguments and stakes, Supreme Court Observer (Sept. 25, 2023).
- S.M Rai, The Reservation Debate in India: Difference, Performance, Empowerment in POLITICS OF REPRESENTATION (Sudha Pai and Sukhadeo Thorat eds., 2022).
- Vrinda Marwah, Gender, Caste and Indian feminism The case of the Women’s Reservation Bill in WOMEN’S AND GENDER STUDIES (Anu Aneja ed., 2019).
- Vicky Randall, Legislative Gender Quotas and Indian Exceptionalism: The Travails of the Women’s Reservation Bill, 39 Comparative Politics 63 (2006).
Supreme Court to Examine the Applicability of Section 67A of the IT Act, 2000 to ‘profane language’
-Benson Binoy
The Supreme Court has said that it will examine the applicability of Section 67A of the Information Technology Act, 2000 (‘IT Act, 2000’) to profane language while considering an appeal by the makers of the TVF web series ‘College Romance’. Section 67A of the IT Act, 2000 in India is primarily applied to cases involving the electronic publishing, transmission, or sharing of sexually explicit content that is offensive, harmful, or invasive in nature. Earlier, in March 2023, the Delhi High Court had ruled that the language used in the web series did not pass the ‘morale decency community test’, and had noted in the course of the ruling that the language used in the series ‘cannot be called the frequently spoken language used in our country’ and that the content of the web series would attract criminality as envisaged under Section 67A of the IT Act, 2000. According to the High Court, the web series depraves the morality of impressionable minds. The Court acknowledged that some may argue that the State cannot prescribe morality and that the Court cannot engage in moral policing under the guise of Indian values. However, the Court asserted that if self-regulatory bodies fail to fulfil their responsibilities by permitting the dissemination of such content to individuals of all ages, and the law does not establish or offer a specific remedy, then people can resort to the courts for resolution.
Senior Advocate Mukul Rohatgi, appearing for the petitioners, argued before the Supreme Court that the series was portraying how youngsters spoke and that Section 67A would not apply to profane language. He also argued that the matter was of vulgar language and did not involve any ‘obscene or vulgar act or conduct’ on screen as envisaged under Section 67A.
The bench, consisting of Justice AS Bopanna and Justice MM Sundresh, expressed their reservations on 67A and, referencing the applicability of the same and the term ‘act’ in the wording of Section 67A, said, ‘Because in act and conduct….act has a broader sense. You cannot give a technical interpretation that act means only physical act’.
The matter has been kept for further hearing on 31st October, 2023.
Suggested Readings:
- The Delhi High Court order.
- Shubhra Agarwal and Anusha Agarwa, Section 67 of IT Act 2000: Scope, Misuse and the Striking Inadequacy, The Criminal Law Blog (June 2, 2020).
- Ratna Kapur, The profanity of prudery: The moral face of obscenity law in India, 8(3) Women: a cultural review 293 (1997).
- Madhurika Durge and Karan Kamath, The Unconstitutionality of Section 67 of the Information Technology Act: Part I, Law School Policy Review & Kautilya Society (June 30, 2020).
- Nishtha Chopra, What is Obscene in India: Is the Community Standards Test the Best Answer?, Constitutional Law Society, (last visited Oct. 9, 2023).
- Dikshit S. Bhagabati, Obscene or artistic? The poetics and politics of the obscenity law in Indian art and literature, 3 Indian Law Review 33 (2019).
Seven Judge Bench of the Supreme Court to Re-examine the Enforceability of Unstamped Arbitration Agreements
-Sruthi Susan Mathew
In April 2023, a five-judge constitution bench of the Supreme Court in N.N. Global Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. (‘Global Mercantile’) had held with a 3:2 majority that an unstamped instrument (including an arbitration agreement contained in it) which is otherwise liable to stamp duty is non-existent in law and must be impounded by the Court before appointing an arbitrator. The rights of the parties under these instruments would remain frozen until the defect is cured. The decision overruled a three – judge bench decision of the Apex Court which had held a contrary position.
The Supreme Court on 26th September, 2023 referred this oft – contested position of law to a larger seven-judge constitution bench including the CJI via a Curative Petition filed under Article 142. The preliminary case of the petitioners in the impugned case against the Global Mercantile position is that if the present position persists, no applications under Section 9 of the Arbitration and Conciliation Act, 1996 (‘The Act’) could be moved for any interim measures.
The dissenting opinion of Justice Rastogi and Justice Roy in Global Mercantile is significant. They had cautioned against opening the floodgate for judicial intervention in arbitration matters, which goes against the very nature and intent of speedy arbitration proceedings. Since issues regarding stamp duty falls within the purview of arbitrators they could appropriately deal with these issues. It was also opined that it would be appropriate for the Legislature to amend the stamp act to address any inconsistencies between the Stamp Act, 1899 and the Arbitration Act, 1996. Post this in June 2023 the Union Ministry of Law and Justice had constituted an expert committee to recommend reforms in the Act.
Further, post the Global Mercantile decision in April 2023, Delhi High Court had in July 2023 held that though an unstamped agreement (although could not have been admitted as evidence) once having been admitted in evidence by the arbitrator, the award passed by relying on such agreement cannot be faulted on this ground.
Suggested Readings:
- Read N.N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd, 2023 SCC OnLine SC 495 here.
- Harshad Pathak, The Curious Case of Insufficiently Stamped Arbitration Agreements in India, 1 BLACC International Yearbook on Business Law and Disputes Resolution 55 (2021).
- Manasa Tantravahi and Aman Gupta, Arbitration agreement, which is part of an unstamped contract, has no existence, Lakshmikumaran & Sridharan (May 25, 2023).
- Parva Khare, Alipak Banerjee & Vyapak Desai, Unstamped Agreements And Its Enforceability under Indian law: Recent Developments, Nishith Desai Associates (Sept. 7, 2023).
- Anup Surendranath, The s.377 Curative Petition: In Favour of a Broader Jurisdiction for the Supreme Court, Law and Other Things (Feb. 9, 2016).
International
Azerbaijan Launches an Offensive in the Region of Nagorno-Karabakh
-Japmeet Singh Bajaj
On 19th September 2023, Azerbaijan launched an ‘anti-terror’ operation into the region of Nagorno-Karabakh. This has led to an exodus of around one lakh ethnic Armenians from Nagorno-Karabakh to neighbouring Armenia. This move by the Government of Azerbaijan has been sharply criticised by Armenia, who has termed it as ‘a direct act of an ethnic cleansing and depriving people of their motherland’ and has approached the International Court of Justice in this regard. This allegation has been denied by Azerbaijan, which claimed that it wants to re-integrate the ethnic Armenians as ‘equal citizens’. On the heels of the crisis, the United Nations has also announced that it will send a mission to Nagorno-Karabakh for the first time in thirty years.
The dispute regarding Nagorno-Karabakh is not one of recent origin. Instead, its roots can be traced back to the early 1990s. The collapse of the Soviet Union led to the formation of fifteen new nations, including Armenia and Azerbaijan. The region of Nagorno-Karabakh, though dominated and inhabited by ethnic Armenians, was included in the territory of Azerbaijan. However, the ethnic Armenians in the region held a referendum in 1991 and declared themselves independent, announcing the formation of The Republic of Artsakh. This led to a brutal conflict between Armenia and Azerbaijan for control of the region. The result was a shaky cease-fire agreement called the Bishkek Protocol. Aftermath of the protocol, the region of Nagorno-Karabakh, though legally a territory of Azerbaijan, was controlled by the ethnic Armenians inhabiting the place. There were regular periodic skirmishes in order to attain control of the region. The last conflict occurred in 2020.
The hostilities restarted as Azerbaijan launched an offensive in the area of Nagorno-Karabakh. Officials stated that the operation was in response to elections which were held in the enclave on 9th September 2023 and the landmine explosion, which killed six Azerbaijanis. Within twenty-four hours of the Azerbaijani offensive, the Armenian separatists agreed to a Russian cease-fire agreement. As a part of the agreement, the region’s president, Samvel Shakhramanyan, has passed a decree ordering the dismantling of the region’s state institutions by the end of the year. He also declared that the separatist state will cease to exist from 1st January 2024. The onset of this conflict has also brought back into limelight the questions of international law concerning the situation. This includes the debate between territorial integrity and self-determination and the legal recognition of the Republic of Artsakh as a distinct state.
Suggested Readings:
- ALBERT HAYRAPETYAN, THE LEGAL ASPECT OF NAGORNO-KARABAKH ISSUE (2022).
- Michael N. Schmitt and Kevin S. Coble, The Evolving Nagorno-Karabakh Conflict- An International Law Perspective-Part I, Lieber Westpoint (Sept. 27, 2023).
- Michael N. Schmitt and Kevin S. Coble, The Evolving Nagorno-Karabakh Conflict- An International Law Perspective-Part II, Lieber Westpoint (Sept. 29, 2023).
- KAMAL MAKILI-ALIYEV, CONTESTED TERRITORIES AND INTERNATIONAL LAW (2019).
OpenAI Sued by Renowned Authors for Copyright Infringement
-Ronsha Roys Anna
The Authors’ Guild and 17 independent authors, including well-known figures like George RR Martin, John Grisham, and Jonathan Franzen, have filed a class action lawsuit in the Southern District Court of New York, USA, against OpenAI for direct, vicarious, and contributory copyright infringement. They have accused OpenAI of flagrantly violating their copyrighted written works.
According to the complaint, OpenAI unlawfully copied the authors’ entire works without permission or compensation. They then used these copyrighted materials to enhance their Large Language Models (‘LLMs’), which generate human-like text responses. These LLMs are central to OpenAI’s lucrative commercial operations, built upon an organised and large-scale act of theft.
The authors argue that OpenAI had legal alternatives available, such as using public domain works or paying reasonable licensing fees for copyrighted content. However, instead of following lawful routes, OpenAI entirely bypassed the U. S. Copyright Act, 1976, acquiring unauthorised datasets of recent books to fuel their profitable venture. This behaviour is seen as unfair, constituting a clear case of copyright infringement, according to established legal principles.
The complaint underscores that OpenAI acquired the authors’ books illegally from pirate e-book repositories, incorporating them into GPT 3.5 and GPT 4, the engines behind ChatGPT and various other applications. OpenAI expects to earn substantial revenues, potentially in the billions, from these platforms. These ‘professionally written, edited, and published books’ play a crucial role in training the LLMs.
The authors, seeking class certification, represent a group of professional fiction writers whose creative works originate from their own minds. They contend that OpenAI’s ability to automatically generate text at little to no cost threatens their livelihoods, potentially eliminating the need to pay writers for content creation.
Suggested Readings:
- Read the Petition here.
- Press Release, The Authors Guild, John Grisham, Jodi Picoult, David Baldacci, George R.R. Martin, and 13 Other Authors File Class-Action Suit Against OpenAI, The Authors Guild (Oct. 1, 2023).
- Gil Appel et al., Generative AI Has an Intellectual Property Problem, Harvard Business Review (Apr. 7, 2023).
- Bruce D. et al., Artificial Intelligence and Copyright — AI: The Washington Report, The National Law Review (Aug. 17, 2023).
A Petition for Environmentality: ECtHR Reviews Suit Against 33 Euro-Nations
-Ustat Kaur Sethi
A global spur around effective climate activism has been caused as the European Court of Human Rights (ECtHR) hears the dispute of Duarte Agostinho and Ors. v. Portugal and 32 Ors. which features six youth plaintiffs from Portugal suing a group of 33 European governments for repeated environmental transgressions.
The watershed moment for prompting the lawsuit was the record-breaking wildfires that occurred in Portugal in 2017 due to extreme heat waves, which killed 120 people. They assert that their rights under Art. 2 and Art. 8 of the European Convention on Human Rights (ECHR) which requires governments to have legal protections ‘against threats to the right of life’ and subsequently ‘right to respect private life and home’.
It has been claimed that these countries have permitted the release of emissions within the national territory and offshore areas where their jurisdiction extends along with the extraction of fossil fuels and import of goods, the production of which involves the release of emissions overseas.
Prima facie, the procedural route undertaken for adjudication is under heavy debate. The agent for the government of the United Kingdom, Sudhanshu Swaroop, has emphasised that plaintiffs did not ‘exhaust all domestic remedies’ which would include mitigation measures and damages received from their home country before seeking international remedies. The plaintiffs here have requested the court to develop a novel model wherein any person considered to be an ‘affected party’ by climate change could claim to be in the jurisdiction of each and every one of the respondent states.
This concept of a wrong against the international community on the whole is explored through the principle of erga omnes, wherein, it is stated that a grave violation of international law can allow parties, other than the injured state, to file a plaint in front of the international fora. But this right is reserved with States and not individuals and the threshold for allowing a complaint under this dictum remains to be quite high.
Suggested Readings:
- Grand Chamber hearing in the case of Duarte Agostinho and Ors. v. Portugal and 32 Ors., Eur. Ct. H. R. 269 (2023).
- Erika de Wet, Jus Cogens and Obligations Erga Omnes, in OXFORD HANDBOOK ON HUMAN RIGHTS (Dinah Shelton ed., 2013).
- Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5.
- Niko Soininen et al., The Impact-based Regulatory Strategy in Environmental Law: Hallmark of Effectiveness or Pitfall for Legitimacy?, 35(2) Journal of Environmental Law 185 (2023).
- Centre for International Environmental Law, About Us | Center for International Environmental Law, (last visited Oct. 9, 2023).
Mauritius Decriminalises Sodomy
-Benson Binoy
The Supreme Court of Mauritius on 4th October, 2023, declared the law criminalising sodomy unconstitutional, finding that the law discriminated against gay men.
The ruling came in a case brought by ‘Collectif-Arc-en-Ciel’ (CAEC) on behalf of an individual named Abdool Ridwan Firaas Ah Seek. Seek stated that he became aware of his homosexuality at the age of 13. Prior to the Court’s ruling, Section 250 of the Mauritius Criminal Code, 1838 criminalised sodomy – that is, anal sex – and hence, consensual anal sex between two men, even if it occurred in the privacy of their own homes. Seek argued that this law violated his right to be free from degrading treatment, as it allowed law enforcement to enter and search his home based only on a mere suspicion of a Section 250 offence.
The State of Mauritius argued that it had already enacted laws to prohibit discrimination against homosexuals. However, Seek’s legal team insisted that while being homosexual was not illegal in Mauritius, Section 250 effectively criminalised the expression of homosexuality and that the criminalization of sodomy led to the stigmatisation of gay individuals.
The Court held that Section 250 violated provisions of the Constitution of Mauritius protecting equal rights and liberty in the country. The provision that was specifically identified to have been violated was Section 16 of the constitution which prohibits discrimination based on ‘sex’. The Court interpreted ‘sex’ to include ‘sexual orientation’. The Court declared Section 250 unconstitutional, stating that though section 250 was ‘ostensibly neutral’ – due to it only prohibiting a certain sexual act, its effect was discriminatory against gay men.
With this decision, the number of countries criminalising homosexuality have come down to 65.
Suggested Readings:
- Read the Judgement here.
- Richard Weinmeyer, The Decriminalization of Sodomy in the United States, 16(11) American Medical Association Journal of Ethics 916 (2014).
- Nicole A. Hough, Sodomy and Prostitution: Laws Protecting the Fabric of Society, 3
- Pierce L. Rev. 101 (2004). Jayalakshmi Sankar, Conversion Therapy in India: In Light of Sushma v. Commissioner of Police, The RMLNLU Law Review Blog (July 12, 2021).
NUALS Law Journal 