In another pragmatic order dealing with the until-recently fairly haphazard regime of John Doe blocking of pirated movies on websites, Justice Gautam Patel of the Bombay high court has cited an article by Legally India published in Mint as “quite excellent”, “extremely well researched, thoughtful and incisive” (see excerpt above).
First of all, our personal thanks to Justice Patel for the very generous mention and praise. If you haven’t yet, please do also check out the full article in Mint or on Legally India, which highlighted lacunae and technical issues in the John Doe blocking jurisprudence that had developed organically in the last few years.
(Patel incidentally, had earlier also referred to Spicy IP blog posts on the topic as persuasive in his orders).
And it’s a great order too, exhibiting great nuance from Patel in dealing with what is clearly a tricky technical and legal issue that the current laws are ill equipped to deal with.
By background, the original plaintiff, Eros International, was represented by RM Partners partner Nikhil Rodrigues, and had secured a blocking order of URLs relating to the Bollywood film Dishoom.
The 11th respondent Tata Communications, represented by senior counsel Viraag Tulzapurkar and instructed by Trilegal counsel Ashish Bhan, however, applied to the court arguing that its previous order of directing an error message to be displayed when a URL was blocked, was “technically not feasible”.
As first reported by Spicy IP, Patel in his 12 August order rejected Tata’s argument that it was not possible for a service provider to customise website error messages for each blocked page.
But Patel made a concession following Tulzapurkar’s submissions, allowing service providers to post a more generic error message that would not have to include the names of the case under which a URL was blocked and the names of the lawyers and parties involved, but would simply state:
This URL has been blocked under the instructions of the Competent Government Authority or in compliance with of a Court of competent jurisdiction. Viewing, downloading, exhibiting or duplicating an illicit copy of the contents under this URL is punishable as an offence under the laws of India, including but not limited to under section 63, 63-A, 65 and 65-A of the Copyright Act, 1957 which prescribe imprisonment for 3 years and also a fine of upto Rs 3,00,000/-.
Any person aggrieved by any such blocking of this URL may contact [.] at [.] (nodal officer detail) who will, within 48 hours, provide you the details of relevant proceedings under which you can approach the relevant High Court or Authority for redressal of your grievance.
While Patel noted that this solution was “sub optimal”, since it depended on the “unmonitored, unsupervised” nodal officer, over whom there was “no oversight whatever”, being prompt in their response.
If a nodal officer did not respond, this would leave little recourse for those whose URLs were blocked in error - such as the legitimate DVD seller whom we interviewed in our Mint article after he found his website erroneously blocked.
Patel also explicitly approved of a proposal by Professor Shamnad Basheer quoted in our Mint article, that the idea of an ombudsman as a self-regulatory body with responsibility for blocking was “indeed appealing” and “worth exploring and developing further”.
Basheer has written in more detail about what such an ombudsman could look like in a subsequent article in The Wire.
The effect of the order - with blocking notices on websites mentioning jail terms - were misreported to mean that those visiting the URL had opened themselves up to criminal action.
However, a blog on Legally India by NLU Delhi’s CCG clarified that nothing had legally changed and that merely viewing the blocked URLs was not a crime under the law.
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www.livemint.com/Leisure/XYRvSCCOhN7MMXwEqChq5O/The-poisoned-earth.html
And now Justice Patel is adjudicating the supposed fascist Balasaheb's will, like a Jew deciding Hitler's last will and testament. Will Justice Patel's bias against this supposed fascism influence his verdict against Uddhavji? The suspense is killing me!
But from everything I've heard, Patel J is supposed to be a very good judge who writes very informed and articulate judgments.
Also, I don't know anything about the status of this case, but if the parties to the will have a problem with Patel deciding on Thackeray's will, couldn't they have raised objections or asked for a recusal? (Or will they only do that in appeal, if they are unhappy with his judgment? :)
There is clearly no difference whatsoever between examining an idea for self regulation (in the realm of policy), appearing in a newspaper article and citing a newspaper article as an authority for a proposition of law.
Judicial recognition/ discussion of the viability of an idea in a newspaper by an articulate and knowledgeable Judge of a Constitutional Court is again ofcourse a pointless exercise.
After all, what good ever came from a newspaper article.
Suggestion : Despite your aversion to Google, perhaps you could try googling the following 3 words together and have a look at what comes up - " "The Forgotten Prisoners" "Amnesty International" "Peter Benenson"
One thing that's perhaps also worth considering here also, with all due respect, is that the output of most domestic academics is rather limited and most Indian legal journals are not very widely read or internationally respected.
There may be exceptions here or there, but from what I've seen and heard, most Indian scholars or lawyers with an academic bent who write good articles look to publish abroad, or on websites and blogs, like Spicy IP, Indian Constitutional Law and Philosophy, Indian Corporate Law Blog, Law and Other Things, NLU Delhi's CCG, and so on...
spicyip.com/
indconlawphil.wordpress.com/
indiacorplaw.blogspot.com/
lawandotherthings.blogspot.in/
Plus, I'm not sure about global trends, but I assume that this must be happening globally too.
Sure, there's additional value and credibility to being published in a peer reviewed journal, but for hot-button topics and quick takes and analysis, blogging (or newspapers) are hard to beat.
Sometimes it has to do for reasons such as location (they may want to be in Delhi), or that their area of interest is not a course that is offered in NLS' BA LLB programme viz why they pick Azim Premji, another prestigious institute. How are you attributing bad academia to NLS? Kian said most Indian scholars or lawyers with an academic bent who write good articles look to publish abroad, or on websites and blogs, like Spicy IP, Indian Constitutional Law and Philosophy, Indian Corporate Law Blog, Law and Other Things...
ALL OF THESE ARE RUN BY NLS ALUMNI. They also contribute to each other's blogs.
The FIRST "point" (that you appear to have missed owing to you either failing to read the order or your inability to comprehend the contents of it) is that Justice Patel in this order did not "cite" Kian for a proposition of law. He discussed an idea. You appear to be having trouble comprehending the difference and I would have explained it to you but your Shashi Tharoor short punchy newspaper articles on politics reference leads to me to conclude that it would be a pointless exercise so i'll just stop here on this.
The SECOND "point" is that you appear to believe that the container is more important than the content. Ergo you criticize the citing of a newspaper article but appear to have no view at all as to the validity, pros or cons of the actual statistics or ideas cited. This to my mind is intellectual elitism, albeit with a lack of intellect.
The THIRD "point" that you may want to consider is that this is an order pertaining to primarily to Copyright and blocking of websites.
To my limited knowledge, Seervai & M.P Singh are considered authorities on constitutional law. If you could provide me with a reference as to where to purchase Seervai's seminal work "Copyright Law of India" or M.P Singh's oft cited "V.N Shukla's Online Piracy in India", I would be deeply obliged.
As you seem to have comprehension trouble, I will also point out Seervai (sadly) passed away in 1996. The last edition of his "Constitutional Law of India" is (tragically) the 4th Edition in which Vol 3 is of vintage 1996 (Vol 1 - 1991 and Vol 2 1993). I have pretty much read these books cover to cover and I do not recall ever coming across the word "internet" (I actually just went through the Index as well). If you could locate it, please do let me know
By contrast, VSNL, if I am not mistaken, first launched internet services in India in 1995.
As regards Baxi, I have had had the privilege of meeting him and listening to some of his lectures. He writes (and very very well) on a wide range of topics but is primarily concerned with Constitutional and Human Rights Issues. His last publication on Copyright appears to be in 1988. upendrabaxi.in/ - See I'm citing Upendra Baxi on Upendra Baxi but as I'm referring to his website (horror !! sin !!!), my citation is obviously worthless.
Which then brings us to Kian's point in 2.1.2, which you can read for yourself.
I would however agree that if Kian was quoting from an article Basheer wrote then the Judge ought to have read and referenced the source article but Basheer's quotes in Kian's article appear to me (correct me if I am wrong) to be flowing out of an interview or discussion.
In any event, I wouldn't give 2 shits if those quotes are attributable to Kian's dog, as long as there is sense and logic in them (refer "Point 2").
The world is changing my friend and the courts are in most cases left far behind. Don't diss the rare bursts of progress.
Can we get the copy of the order wherein the Judge has mentioned all this?
But well done!
Please also read
www.legallyindia.com/Pre-law-student/rti-d-minutes-of-bci-reveal-how-multi-crore-bar-exam-contract-was-awarded-to-mystery-5th-bidder-ites-horizon-longread
www.legallyindia.com/Bar-Bench-Litigation/bci-sends-legally-india-6-page-defamation-notice-over-bar-exam-rti-story-cc-s-pm-all-judges-journalists
www.legallyindia.com/Bar-Bench-Litigation/li-responds-to-manan-kumar-mishra-legal-notice
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