Medical Research
Via: "Hasit seth"
Market exclusivity beyond patents for drugs?
Via: "Prabhu Ram"
> 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.
> 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.
Re: [Commons-Law] Google to scan manuscripts and books from University of Mysore
Via: "Ravishekhar S"
> 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
> 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
Re: [Commons-Law] Post grant oppostion against Pegays filed
Via: "Dhritabrata BHATTACHARJYA Tato"
Re: [Commons-Law] Baroda, Immanuel Kant and the Indian Penal Code: how do we read intentions
Via: anil gupta
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@sarai.net
>> https://mail.sarai.net/mailman/listinfo/commons-law
>>
>>
>
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@sarai.net
>> https://mail.sarai.net/mailman/listinfo/commons-law
>>
>>
>
Protest Demonstration against events in Baroda:
Via: anil gupta
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@insaf.net
> http://insaf.net/mailman/listinfo/foil-l_insaf.net
>
>
>
> _______________________________________________
> commons-law mailing list
> commons-law@sarai.net
> https://mail.sarai.net/mailman/listinfo/commons-law
>
>
> ------------------------------------------------------------------------
>
> _______________________________________________
> commons-law mailing list
> commons-law@sarai.net
> https://mail.sarai.net/mailman/listinfo/commons-law
>
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.
>
>
>
> ___________________________________________________________
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> answer. Try it
> now.
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>
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>
>
>
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Re: [Commons-Law] Protest Demonstration agains events in Baroda: From Lalit Batra
Via: "Prashant Iyengar"
Next1-10/31